Endeavour Energy v Tzivanopoulos - [2022] NSWPICPD 41

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Endeavour Energy v Tzivanopoulos [2022] NSWPICPD 41
APPELLANT:	Endeavour Energy
RESPONDENT:	George Tzivanopoulos
INSURER:	Self-insured
FILE NUMBER:	A1-W3957/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	2 November 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 18 January 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – the test to establish injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987; application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated decisions
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Palamara, solicitor
Sparke Helmore Lawyers
Respondent:
Mr J McEnaney, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr A Scarcella
DATE OF Member’s DECISION:	18 January 2022

INTRODUCTION AND BACKGROUND

George Tzivanopoulos (the respondent/worker) was employed full-time by Endeavour Energy (the appellant/employer) as an electrical engineer from 28 May 2011. He stated that he was working at his desk for “at least 90% of the time” and that the workstations were “not ergonomically conscious”. He stated that he used a computer and telephone for prolonged periods of time. He said that he developed pain in his neck and shoulders when he was very busy at work in 2013. Some changes to his workstation were made following an ergonomic assessment. The respondent said that he was unable to take rest breaks and there was pressure to work hard and to “stay on top of things”.[1] He stated that he had chiropractic treatment in 2013 which helped to relieve symptoms and he was able to keep working although he continued to have pain.
[1] Respondent’s statement, 18/2/2021, Application to Resolve a Dispute (ARD), pp 1–9, [2]–[3], [15]–[36].
The respondent continued in his work, with some additional adjustments to his workstation, and with further flare ups in his symptoms, which he stated increased in severity. He described himself as “struggling to manage”. He was placed on a “Performance Improvement Plan” in June 2018 and took extended leave from 6 July 2018 to 10 September 2018. He stated that on his return his workload was “immense”. He said that his condition was “deteriorating steadily in 2018” and he was “having more and more difficulties managing”.[2] He was issued with a “final warning” on 17 December 2018 and a “final review” was to occur on 15 January 2019. He stated that on 10 January 2019 he ceased work due to his injuries and has not worked since.[3]
[2] Statement 18/2/21, [56]–[65].
[3] Statement 18/2/21, [68]–[71], [75], [77].
The respondent saw a spinal surgeon, Dr Nair, who administered a cortisone injection on 5 March 2019. Dr Nair recommended surgery on the respondent’s neck. The respondent made a workers compensation claim on 18 March 2019.[4] The respondent’s employment was terminated. He was examined by Dr Cochrane on the appellant’s behalf on 10 May 2019 and liability on the claim was denied on 1 July 2019.[5] Subsequently the respondent came under the care of Dr Singh, an orthopaedic surgeon, on 18 April 2019. He recommended a C4–C7 cervical decompression and fusion. On 13 May 2020 Dr Khong, a neurosurgeon, recommended a C6/7 anterior cervical discectomy and fusion, which the respondent wishes to undergo.[6] The appellant issued further dispute notices dated 27 May 2020, 2 November 2020 and 15 June 2021 denying the respondent’s claim in respect of treatment costs including those associated with the proposed surgery.[7]
[4] ARD, pp 15–23.
[5] ARD, pp 25–32, statement 18/2/21, [79]–[85].
[6] Statement 18/2/21, [99], [105]–[109].
[7] ARD, pp 37–42, 66–74.
These proceedings were listed for hearing on 13 October 2021. Mr McEnaney appeared for the worker and Mr Saul appeared for the employer. The employer’s late documents were admitted without objection. The Member described, without objection, the issues as the parties had agreed them at the preliminary conference in the matter. Mr Saul made his submissions, by which stage there was insufficient time for those of Mr McEnaney to conclude. The Member made orders for the lodgment of written submissions. Those of the worker were dated 3 November 2021. The employer’s submissions in reply were dated 14 November 2021.
The Commission issued a Certificate of Determination dated 18 January 2022 accompanied by 55 pages of reasons.[8] The Member found ‘injury’ to the cervical spine pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), deemed to have occurred on 9 January 2019. He found that the surgery at C6/7 proposed by Dr Khong was reasonably necessary within the meaning of s 60 of the 1987 Act and resulted from the found injury. The Member found that the worker had ‘no current work capacity’ from 9 January 2019 and made a weekly award on a continuing basis at varying rates from 11 April 2019. He made a ‘general order’ for the payment of expenses pursuant to s 60 of the 1987 Act. He made a specific order for the payment of the costs of and ancillary to the proposed surgery at C6/7. He noted the worker’s claim relating to a “consequential/secondary psychological injury” was discontinued.
[8] Tzivanopoulos v Endeavour Energy [2022] NSWPIC 23 (reasons).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The decision is not interlocutory.

THE MEMBER’S REASONS

The Member summarised the procedural background and the agreed issues. He described the documents relied on by the parties.[9] The Member noted that neither party relied on the worker’s statement dated 19 March 2021. The Member summarised the worker’s evidence in his statements dated 18 February 2021 and 13 April 2021 and in his claim form dated 18 March 2019.[10]
[9] Reasons, [1]–[20].
[10] Reasons, [21]–[64].
The Member summarised a document headed “Notice to Show Cause – Potential Termination of Employment” dated 28 March 2019. It monitored a performance improvement plan from 12 June 2018. A formal warning letter was issued on 8 October 2018. In December 2018, the worker’s performance was taken to have fallen short of standards and the worker was in breach of the employer’s code of conduct. On 17 December 2018 the worker was issued with a final warning letter, with a further review meeting scheduled for 15 January 2019. The worker took sick leave from 10 January 2019; the certificates did not disclose the nature of the worker’s condition. The worker failed to attend an appointment on 15 March 2019 with a doctor arranged by the employer. On 19 March 2019 the worker lodged his claim form with the employer.[11]
[11] Reasons, [65]–[66].
The Member referred to a statement by Ms Gopala (the human resources business partner) who said that 15 January 2019 was the date when a decision would be made regarding whether the worker had improved sufficiently or “other options”, including possible termination, would be considered. She said that the worker knew his standards had fallen short of those required in the performance improvement plan. She said the worker did not complain of neck, back or arm injuries.[12]
[12] Reasons, [67]–[75].
The Member referred to a statement of Mr Phan, a design co-ordination manager to whom the worker reported. He said that, at the time the worker went off on 9 January 2019, the worker was acting normally and had not complained of hurting his back at work.[13] The Member referred to a statement of Mr Wood, who contracted with the employer as a “Health Coach”. Mr Wood said he had heard that the worker made complaints about his neck when he was provided with ergonomic adjustments. He said the worker, in discussion about a certificate from a spinal doctor, confirmed that he had sustained a neck injury. He said the worker failed to attend a medical appointment Mr Wood arranged for 12 February 2019 and rescheduled on three occasions.[14] The Member referred to an ergonomic assessment report from Mr Shipp dated 11 September 2017, when an assessment was made of the worker’s workstation. There was a history of a cervical sprain, acute symptoms at least twice per year, and a flare up in May 2017 with chiropractic treatment. Mr Shipp supported the supply of a sit/stand desk.[15]
[13] Reasons, [76]–[81].
[14] Reasons, [82]–[85].
[15] Reasons, [86]–[93].
The Member summarised the material from treating medical practitioners. Health Plus Chiropractic confirmed limited consultations in 2013, some for thoracic complaints but with some references to “right-sided neck, lower neck and back”.[16] Documents from Mr McAviney, a chiropractor and osteopath, showed three treatments for neck pain in 2014, complaints relating to the neck in May 2017, and left shoulder pain and neck stiffness in April 2018. On 12 May 2018, there were complaints of paraesthesia in the fingers of the left hand which resolved following neck treatment. There were treatments of the neck in September and December 2018. An x-ray in January 2019 showed degenerative joint disease in the lower cervical spine. Mr McAviney considered the worker’s work performance could have been affected by neck pain, especially between September/December 2018 and January 2019.[17]
[16] Reasons, [94]–[96].
[17] Reasons, [97]–[99].
The Member referred to material from Greystanes Family Medical Centre between 4 July 2012 and 18 April 2019. There were no entries relating to the neck, shoulders or upper limbs during this period. The records from Wentworthville Medical and Dental Centre from 4 July 2012 (when they commenced) up to 10 January 2019 made no reference to neck, shoulders or upper limbs. On 10 January 2019 (the day following the worker’s last workday with the employer) there was a history of pain in the neck “on and off since 2013”. There was a history of a desk job, cervical tenderness and pain on movement. The worker saw Dr Das at that Centre until 18 April 2019. He had a cervical x-ray, physiotherapy, and was told to take Voltaren. He was referred to Dr Nair, a spinal surgeon.[18]
[18] Reasons, [103]–[111].
The Member then summarised the medical evidence from Dr Nair,[19] ‘Workers Doctors’,[20] Dr Khong,[21] Dr Bodel[22] and Dr Cochrane.[23]
[19] Reasons, [112]–[118].
[20] Reasons, [119]–[134].
[21] Reasons, [135]–[153].
[22] Reasons, [154]–[164].
[23] Reasons, [165]–[196].
The Member referred to the initial issue as that going to ‘injury’. He set out a range of principles and authorities dealing with ‘injury’ in general and the proof of injury on the basis of the ‘disease’ provisions in particular.[24] He summarised the parties’ submissions on the issue.[25]
[24] Reasons, [200]–[217].
[25] Reasons, [218]–[269].
The Member described the respondent as a witness of truth. He said the respondent’s histories of “injury, treatment and complaints” were “in the main, consistent over a long period of time”. He said the respondent’s unchallenged evidence was that his work required him to repeatedly “twist, rotate and flex his neck”. He spent at least “90% of his working day at his workstation”. The respondent’s unchallenged evidence was that he had not had pain in the neck, shoulders or arms before this employment. He found the respondent had a “significant multi-level degenerative condition of the cervical spine with multi-level marked canal and foraminal stenoses at C4/5 and C6/7 and to a lesser extent, at C5/6”. He found it was likely this pathology was asymptomatic prior to the commencement of his work with the appellant. His unchallenged evidence was that he commenced experiencing relevant symptoms in 2013, increasing in 2014. This was corroborated by Mr McAviney’s report dated 13 April 2019. There was another flare-up in May 2017. Mr McAviney’s records and Mr Shipp’s evidence corroborated this.[26]
[26] Reasons, [270]–[277].
The Member said there was no dispute that the respondent was placed on an improvement plan from 12 June 2018 to 12 November 2018. The respondent accepted that his work performance deteriorated “towards the end of his employment”. The respondent attributed this to increased “neck and related symptoms, which by December 2018, were constant”. The Member referred to the respondent’s evidence that “by December 2018, his neck and related symptoms became particularly unmanageable and he was no longer responding to chiropractic treatment”. His evidence was that he continued working “as best he could” until 9 January 2019, when he ceased “because of his deteriorating injuries”. He noted the first entry in the notes from Greystanes Family Medical Centre relating to “neck or upper extremities” was on 10 January 2019, the day following his last day attending work with the appellant.[27] The Member noted that the worker had been seeing chiropractors, Ms Park and Mr McAviney from March 2013 to December 2018, to manage his symptoms.[28]
[27] Reasons, [282]–[288].
[28] Reasons, [291].
The Member referred also to the respondent’s failure to report his injury “on or shortly after 9 January 2019”. He referred to the evidence from Ms Gopala and Mr Phan. The Member discussed the lay evidence and accepted that the respondent had “complained to, at least, Mr Phan and Mr Charman about his cervical, mid thoracic and upper lumbar symptoms at various times during his employment with Endeavour from March 2013”. He accepted that the respondent had “reported his worsening symptoms to Mr Phan between September and December 2018”. The Member said he was satisfied Mr Phan was aware of the respondent’s neck symptoms, saying:
“The purpose of the 2017 Recovery Partners ergonomic assessment report was to determine whether the trial sit/stand desk at Mr Tzivanopoulos’ workstation should be made permanent based on the history he had provided to Mr Shipp, which included his complaints of pain through the cervical, mid thoracic and upper lumbar spine regions and a sensation of pins and needles through the fingers of the right hand.”[29]
[29] Reasons, [292]–[293].
The Member referred to Mr Phan’s statement that the respondent ceased work because he knew his performance had not improved, he had been issued a formal warning and “knew that his job may be on the line”. The Member described this as “speculative and not based on any persuasive evidence”.[30]
[30] Reasons, [298].
The Member set out the specialist medical evidence that dealt with causation. He said of Dr Cochrane’s opinion:
“Dr Cochrane appeared to have reached his conclusion that there was no aggravation or exacerbation of Mr Tzivanopoulos’ multi-level cervical spondylosis because there was no documented or discrete injury that caused an aggravation or exacerbation. In doing so, Dr Cochrane did not properly engage with the elements of s 4(b)(ii) of the 1987 Act on the background of the nature and conditions of employment case conducted by Mr Tzivanopoulos.”[31]
[31] Reasons, [304]
The Member said Dr Bodel was satisfied that “the nature and conditions of Mr Tzivanopoulos’ work, particularly the prolonged office work, was the main substantial contributing factor to an aggravation, acceleration, exacerbation and deterioration of the disease process in his cervical spine.” The Member noted that Dr Khong was the treating neurosurgeon. Dr Khong prepared his report dated 13 May 2021 with the benefit of the respondent’s statement dated 13 April 2021, which “set out in some detail the history and nature of his duties whilst employed by Endeavour”. The Member preferred the evidence of Dr Khong to that of Dr Cochrane.[32]
[32] Reasons, [305]–[308].
After making formal factual findings, the Member made the following ultimate finding of fact on ‘injury’:
“I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that, within the meaning of s 4(b)(ii) of the 1987 Act, Mr Tzivanopoulos suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in his cervical spine in the course of his employment with Endeavour deemed to have occurred on 9 January 2019.”[33]
[33] Reasons, [311].
The balance of the reasons dealt with issues of quantum that are not raised in the appeal grounds. The issue of the entitlement to treatment expenses pursuant to s 60 of the 1987 Act, including the proposed surgery, was discussed in the reasons at [312] to [345] and [388] to [389]. The weekly entitlement was discussed at [346] to [387]. It is unnecessary to summarise those reasons that deal with quantum.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Member erred by preferring the respondent’s reports of Drs Bodel and Khong on the question of aggravation of the respondent’s disease to the appellant’s report of Dr Cochrane. (Ground No. 1)
(b) The Member erred by failing to find that the respondent only began to
state that his disease was aggravated by work at a very late stage. (Ground No. 2)

THE NATURE OF THIS APPEAL

This appeal is brought pursuant to s 352(5) of the 1998 Act which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[34]Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[35] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[36]
[34] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[35] (1966) 39 ALJR 505, 506.
[36] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill,[37] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[38]
[37] [2020] NSWCA 54 (Hill).
[38] Hill, [20].

In Northern NSW Local Health Network v Heggie,[39] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”
[39] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

LEGISLATION

Section 4 of the 1987 Act relevantly provides:
“4     Definition of ‘injury’
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”.

GROUND NO. 1

Error by preferring the respondent’s reports of Drs Bodel and Khong on the question of aggravation of the respondent’s disease to the appellant’s report of Dr Cochrane

Appellant’s submissions

The appellant refers to the Member’s summary, in his reasons, of medical reports from Dr Khong, Dr Bodel and Dr Cochrane. The submissions refer to a quoted passage, that is an amalgam by the appellant of the Member’s reasons at [301], [303], [304] and [308]. The appellant refers to this passage as leading to the Member’s conclusion that he preferred the evidence of Dr Khong to that of Dr Cochrane.[40]
[40] Appellant’s submissions, [32].
The appellant refers to the reasons at [304]. The Member said that Dr Cochrane appeared to reach his conclusion that there was no aggravation, etcetera of cervical spondylosis because there was “no documented or discrete injury that caused an aggravation or exacerbation”. The appellant submits that in expressing the above view Dr Cochrane was replying to a direct question asked by the appellant: “… whether you are of the opinion that the injury could be regarded as a ‘disease injury’ contracted by the worker in the course of his employment by a gradual process”. The appellant submits that a similar “impugned” passage responds to a question from the appellant regarding whether “various clinical records” caused an alteration or confirmation of prior views.[41]
[41] Appellant’s submissions, [33]–[35].
The appellant submits Dr Khong and Dr Bodel “have expressed the wrong test”. It quotes ss 4(b)(ii), 9A and 16 of the 1987 Act. It submits that, when s 4(b)(ii) and s 9A are read together, the test of an aggravation injury is whether employment was the ‘main contributing factor’. It submits s 16 of the 1987 Act states compensation is payable only if employment was ‘a substantial contributing factor’. It submits the language adopted by Dr Bodel refers to whether employment is “the main substantial contributing factor”, which is the wrong test. It submits s 16 operates where there is an issue regarding which of a number of employers may be liable; there is no such issue in the current matter. The appellant submits Dr Khong used the terms ‘main contributing factor’ and ‘substantial contributing factor’. It submits Dr Bodel used the term ‘substantial contributing factor’. It submits that Dr Cochrane’s impugned reference to the test in s 4(b)(i) was in response to a direct question put to him by the appellant, it did not reflect misunderstanding of the correct test on the doctor’s part.

Respondent’s submissions

The respondent refers to Raulston. To succeed, the appellant is required to establish error (as opposed to a difference of opinion regarding the outcome) and additionally that the error could have affected the result.[42]
[42] Respondent’s submissions, [1]–[3].
The respondent submits that Ground No. 1 relies on two arguments. One of these is that Dr Bodel and Dr Khong have not properly adopted the language of s 4(b) of the 1987 Act and therefore their opinions should not have been preferred to that of Dr Cochrane (who used the correct terminology). The respondent submits that failure to address the ultimate legal question is not fatal to acceptance of an expert’s opinion.[43] The respondent refers to State Transit Authority of New South Wales v El-Achi.[44] Deputy President Roche there said that it was not fatal that a medical witness failed to express his opinion in the terms of the legislation. It was necessary that the issue of injury be determined on the whole of the evidence and having regard to whether employment is the main contributing factor, an evaluative process.[45]
[43] Guthrie v Spence [2009] NSWCA 369, [194]–[199].
[44] [2015] NSWWCCPD 71 (El-Achi), [72]–[73].
[45] Respondent’s submissions, [7]–[12].
The respondent submits Dr Khong was aware, as a treating specialist, of the relevant radiology and the respondent’s written statement. It is submitted that the evidence of Dr Cochrane and Dr Khong was weighed and there was no error in accepting Dr Khong’s opinion.[46]
[46] Respondent’s submissions, [13]–[15].
The respondent accepts that Dr Bodel used the term “main substantial contributing factor”. The respondent submits that what was intended was probably ‘main contributing factor’, Dr Bodel took a history of no specific accident or injury, but an onset of symptoms associated with the nature of the respondent’s work involving prolonged sitting at his desk and using his computer. Dr Bodel recorded a history of no relevant symptoms before the respondent’s job with the appellant and no other potentially causative factors. The respondent submits that even if, contrary to its submissions, Dr Bodel did misstate the test, this would not change the result. The Member, after careful consideration, preferred the opinion of Dr Khong over that of Dr Cochrane.[47]
[47] Respondent’s submissions, [16]–[18].
The respondent submits that the second limb of the first ground of appeal was that the Member misunderstood Dr Cochrane’s evidence. The Member said it was “unclear” whether Dr Cochrane fully understood the nature of the respondent’s case (in the reasons at [301]). The respondent submits this was directed at Dr Cochrane’s report dated 17 May 2019 and referred to Dr Cochrane’s misunderstanding “at that time”. The Member went on to summarise other later reports and did not repeat the assertion that Dr Cochrane misunderstood the case. He did note that Dr Cochrane did not agree with Dr Khong’s opinion as Dr Cochrane could not identify “a clearly documented injury occurring in the workplace”. The respondent submits the Member clearly understood both Dr Khong and Dr Cochrane and there was no error in him preferring Dr Khong.[48]
[48] Respondent’s submissions, [19]–[23].

Consideration

One point made by the appellant is that, to the extent to which Dr Cochrane misstates the test to establish ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act, this flows from how questions were put to him by the appellant (as opposed to misunderstanding on the doctor’s part). The appellant’s submissions refer to various potential aspects of the causal inquiry regarding whether ‘injury’ is established within the meaning of s 4(b)(ii) (which was the basis on which the Member found ‘injury’). The appellant’s submissions refer to potential interaction between the test in s 4(b)(ii) and s 9A of the 1987 Act (see [33] above). There is no such interaction. Section 9A does not have application to injuries (as in the current matter) which are governed by the ‘disease’ provisions:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.”
StateCover Mutual Ltd v Cameron[49] was a case in which the relevant deeming provisions fixing a date were ss 15 and 18. Justice Basten (Beazley P and Ward JA agreeing) dealing with the deeming provisions which fix deemed dates of injury in ‘disease’ matters, said:
“The Act deals with matters in steps. The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation. Section 18 presumes that liability has been established on the part of a particular employer and then deems when liability has arisen, for the purpose of determining the insurer liable in respect of that compensation. Section 18 is not concerned with a determination of liability, nor with identification of the employer. There is no reason why rules to be applied at one stage of the process should be incorporated into a later stage.”[50] (excluding footnotes, emphasis added)
[49] [2015] NSWCA 127 (Cameron).
[50] Cameron, [18].
It flows from the above that ss 9A and 16 of the 1987 Act were not relevant, in the current matter, to the task of proving ‘injury’ within the meaning of s 4(b)(ii). The appellant’s submission, that ‘substantial contributing factor’ was not relevant to the determination of whether the respondent had sustained an ‘injury’ within the meaning of s 4(b)(ii), is correct. The appellant argues that Dr Khong and Dr Bodel incorrectly identified the test to be applied.

The reports of Dr Khong, Dr Bodel and Dr Cochrane

Dr Khong

Dr Khong was the treating neurosurgeon. In his report dated 13 May 2020[51] requesting authorisation for surgery he did not comment on causation. Dr Khong reported to the general practitioner on 26 August 2020,[52] 30 October 2020,[53] 22 January 2021,[54] 19 April 2021[55] and 23 July 2021[56] (setting out his history of treatment). He did not comment on causation in these reports, save by inference given the request to the appellant to approve the surgery.
[51] ARD, pp 144–146.
[52] ARD, pp 149–152.
[53] ARD, pp 153–156.
[54] ARD, pp 157–160.
[55] ARD, pp 161–164.
[56] ARD, pp 167–170.
Dr Khong reported on 13 May 2021, answering specific questions posed by the respondent’s solicitors.[57] He was asked whether “the setup of [he respondent’s] work station over a period of eight years caused a permanent worsening and aggravation of [his] cervical spondylosis condition”. The doctor responded that it was “likely the setup at his work station caused a permanent aggravation of the degenerative changes in his cervical spine”. The doctor said the latest exacerbation occurred in 2018 when he was spending more time at work and “this exacerbation has not improved to date”. Dealing with how the aggravation occurred Dr Khong said:
“[The respondent] reports long periods of desk work looking up and down from his monitors to his desk and visa versa, and also having phone calls where he would push the phone between his ear and right shoulder. It is likely that doing this over a long period (years) caused an aggravation of the degenerative changes in his neck, and may have even caused an exacerbation of these changes.”
[57] ARD, pp 165–166.

Dr Bodel

Dr Bodel, qualified by the respondent’s solicitors, provided two reports dated 21 August 2019.[58] In his primary report Dr Bodel set out the background, history, complaints and findings on examination. He summarised a file from “Workers Doctors” which was furnished to him. He referred to an MRI scan which he said showed “definite disc pathology at C4/5 and to a lesser extent at C5/6 and C6/7”. Dr Bodel said there was “no definite spinal cord compression and clinically there is no nerve root tension”. He suggested “conservative care” and said he “would recommend against the widespread spinal fusion” which at that point was recommended by a treating orthopaedic surgeon. Dr Bodel said that surgery may need to be considered if the respondent developed “localised signs of radiculopathy”.[59]
[58] ARD, pp 95–106.
[59] ARD, p 100.
Dr Bodel said there was “disc pathology in the cervical spine”. He said this was “primarily a degenerative condition which is constitutionally based”. He noted the neck and associated symptoms had “developed over time”. He said:
“In my view, this gentleman does have a work related injury by way of aggravation, acceleration, exacerbation or deterioration of a disease process, although disease process itself and any degenerative disc disease has not been caused specifically by work.”
Dr Bodel responded to a question which specifically asked “… whether or not our client’s employment was the main contributing factor to such disease or aggravation, acceleration, exacerbation or deterioration of the disease …”. He responded saying:
“I am satisfied that the nature and condition [sic] of work is the main substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process.
There are underlying degenerative processes which are constitutionally based which have been aggravated by his work.”
And:
“This gentleman has quite significant ongoing disability which is related to the effects of the aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease in the cervical spine in this circumstance.”[60]
[60] ARD, pp 103–104.
Dr Bodel furnished a supplementary report of the same date in which he assessed whole person impairment at 16%, on the assumption that the respondent did not proceed with any surgery, saying:
“I assess that the nature and conditions of this gentleman’s work is the main substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process.”[61]
[61] ARD, pp 105–106.

Dr Cochrane

Dr Cochrane initially reported, to the appellant’s solicitors, on 17 May 2019.[62] The report referred to the solicitors’ referral letter dated 3 May 2019 and to “forwarded documentation which has been reviewed and considered”. The doctor referred to a background history that the respondent “alleges that the nature and conditions of the workplace has resulted in the emergence of neck and arm pain, occurring over the years, seemingly culminating in a reported date of injury of 9 January 2019”. He recorded a history of episodes of neck and associated symptoms, periodically requiring treatment, from 2013. There was a history of the installation of a “sit-to-stand workstation” in 2017 and numbness in the dominant right arm from 2018. There was a history of a significant flare-up in December 2018 with “intractable symptoms” in January 2019. The doctor recorded “incongruities” on examination. He commented on “very rigid head posture” and “submaximal effort and give way phenomena far more marked in the left upper than the right upper limb”. The doctor said that on examination of the cervical spine there was “a significant degree of fear-avoidance with minimal voluntary movement and some tremulousness of movement which I felt was somewhat embellished”.
[62] Reply, pp 3–13.
The doctor’s conclusion commenced with the following paragraph:
“[The respondent] presents with reports of work-related aggravation of neck pain and pain and tingling symptoms involving his dominant right upper limb. He presents today with marked disability from what he describes as a gradual onset condition being present for many years. He alleges that the symptoms became intractable on 9 January 2019. I note from your letter of instruction this is coincidentally the same day that he apparently failed to attend a scheduled performance management meeting at the workplace. I note that [the respondent] has now been terminated from employment.[63]
[63] Reply, p 9.
Dr Cochrane commented:
“… it is my determination that there has likely been episodic flare-up of symptoms at
the workplace and such flare-ups may have been aggravated by the nature and activities of the workplace, but I cannot substantially relate the symptoms to being work-related – I believe there is established cervical spondylosis which has been intermittently symptomatic for many years. I am not of the opinion that there has been a discreet work-related injury that occurred at the workplace on 9 January 2019.”[64]
[64] Reply, p 10.
Dr Cochrane, responding to a specific question from the appellant’s solicitors regarding whether the respondent had sustained an ‘injury’ and whether employment was “a substantial contributing factor”, said:
“I am not of the opinion that the worker has sustained an injury. The worker reports intermittent spontaneous flare-ups of symptoms over many years, perhaps five years. I concede that such symptoms may have been aggravated or at least concurrent with episodes of desk-based work or computer-based activity, but I do not believe that employment is the main or substantial contributing factor to what would otherwise be intermittent spontaneous flare-ups of an established cervical degenerative condition. Episodic spontaneous flare-ups are in fact the nature and natural history of established spinal spondylosis.”[65]
[65] Reply, p 10.
The doctor responded to a further question regarding whether there was a “disease injury” contracted in the course of employment, or an aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease:
“I believe it is reasonable to conclude that Mr Tzivanopoulos suffers a disease, and that disease represents multi-level cervical spondylosis. I concede that there appears to have been episodes of flare-up or worsening during employment but I do not consider the worker’s employment is the main contributing factor to contracting the disease or the main contributing factor to the aggravation, acceleration or deterioration of any established cervical spondylosis. I suspect Mr Tzivanopoulos has suffered spontaneous flare-ups episodically as would be the natural history and nature of such a condition.”[66]
[66] Reply, p 11.
Dr Cochrane commented on the likely prognosis:
“The prognosis is for waxing and waning symptoms with a pattern of gradual deterioration over time, as is the natural history of established multi-level cervical spondylosis. Given Mr Tzivanopoulos’ presently reported symptoms, it is likely that surgical treatment may need to be considered. I cannot clearly correlate the need for surgery to a discreet work-related injury however.”[67]
[67] Reply, p 12.
Dr Cochrane provided a number of reports at the request of the appellant’s solicitors specifically commenting on aspects of the history, documentation and permanent impairment. The report dated 1 April 2021 commented on material from two chiropractic practices and three general medical practices and included the following:
“My opinion has not changed – [the respondent] is suffering from constitutional multi-level cervical degeneration. I fully accept that there may well have been work-related episodic and temporary exacerbations or aggravations of pre-existing cervical spondylosis. I remain of the opinion there is no discrete work-related injury having occurred at any stage. The nature and conditions of work could reasonably have caused temporary aggravations of an underlying condition, but I remain of the opinion that it is the underlying multi-level extensive degeneration condition that is the primary cause for symptomatology. As such, I remain of the opinion that employment is not the main or substantial contributing factor to [the respondent’s] multiple levels of cervical spondylosis. I do not believe that the worker has contracted a ‘disease injury’ with respect to employment with Endeavour Energy.”[68] (emphasis in original)
[68] Reply, pp 33–35.

Dr Cochrane reported again on 16 August 2021.[69] On this occasion the doctor interviewed the respondent over a video link. He was unable to have the respondent “independently re-examined” (the doctor’s rooms were in Southport, Queensland) and the respondent’s general practitioner was unable to examine the respondent “in the current climate” (I infer a reference to COVID restrictions). Dr Cochrane said that the reader “must appreciate that I have no up-to-date physical examination details”. Dr Cochrane recorded the respondent “still has neck pain, bilateral but worse on the right side with radicular symptoms which, as described, appear to predominantly conform to a C6 dermatomal distribution”. Dr Cochrane said he could not “confirm radiculopathy” in the circumstances. He noted that Dr Khong was of the opinion that the respondent “should undergo a single-level anterior cervical discectomy and fusion procedure at C6/7”.
[69] Reply, pp 36–45.
Dr Cochrane, responded to a question regarding whether the respondent had “sustained an injury” to which employment was a substantial contributing factor. Dr Cochrane said “there appears to be no discreet injury”. Dr Cochrane responded to a question regarding whether the respondent had sustained an injury that could be regarded as a ‘disease’ injury, as the main contributing factor to either contracting the disease, or to the aggravation, acceleration, exacerbation or deterioration of the disease. The doctor said there was not a ‘disease injury’ contracted by the worker in the course of his employment. He accepted that work activities may have made “a partial contribution”, precipitating “episodic flare-ups of the underlying condition”. He said:
“I am not of the opinion that employment was the main contributing factor to
contracting any aggravation, acceleration or deterioration of established multi-level cervical spondylosis.”[70] (emphasis in original)
[70] Reply, pp 43–44.
Dr Cochrane also furnished a supplementary report dated 16 August 2021[71] in which the appellant’s solicitors invited the doctor to make “any comments that you may wish” in respect of Dr Khong’s report dated 8 March 2021. Dr Cochrane discussed Dr Khong’s report in the following terms:
“I agree with Dr Khong that there is established multi-level cervical spondylosis. I do not believe that employment can be considered the main contributing factor to the acceleration and exacerbation of the cervical spine pathology as this is clearly longstanding. I accept that the first documented reported symptoms were from around 2013, noting employment commenced in 2011. Nonetheless, the nature and activities of work do not reasonably lead to multi-level cervical spondylosis. I do not believe it is reasonable, therefore, to relate employment to the established multi-level cervical spondylosis just because they correlate in time. There does not appear to be a causal relationship to employment in my opinion, and I respectfully disagree with Dr Khong in the regard that employment is considered a contributing factor to the acceleration and exacerbation of the cervical spine pathology. I do not believe that prolonged desk-based activities would lead to cervical spondylosis from C2/3 down to C6/7. There must be constitutional or genetic predisposition factors or other degenerative factors leading to the development of established multi-level cervical spondylosis. I am also not of the opinion that there was any clearly documented injury occurring at the workplace which would have accelerated or exacerbated the pathology.
As such, I am of the opinion that there is no clear work related causal relationship between the established multi-level cervical spondylosis, and therefore I can see no reason why there is a work-related injury that necessitates treatment.”
[71] AALD 16/9/21, pp 22–25.
The above was not reliant on the way in which questions were asked of Dr Cochrane. The doctor was simply asked for any comments he may wish to make.

Resolution

Dr Khong, Dr Bodel and Dr Cochrane all accepted that the condition of cervical spondylosis from which the respondent suffered was a ‘disease’. None of them considered the underlying degenerative condition to have been caused by the respondent’s work duties. Dr Khong, the treating neurosurgeon, expressed in clear terms his opinion that the respondent’s degenerative disease had been aggravated and/or exacerbated by his work duties over many years (see [43] above). Dr Bodel’s opinion was consistent with this. The appellant submits the probative weight of Dr Bodel’s opinion is reduced by the doctor’s use of the phrase “main substantial contributing factor” in place of the phrase “main contributing factor” which appears in s 4(b)(ii) (see [46] to [47] above). Whilst the use of this term did not reflect s 4(b)(ii) in its current form, it is difficult to see that it significantly detracts from Dr Bodel’s opinion. Logically, the ‘main substantial contributing factor’ would also be the ‘main contributing factor’.
The respondent refers to the Presidential decision of El-Achi in which Roche DP dealt with whether the evidence supported a finding of ‘main contributing factor’. The Deputy President, in a passage with which I agree, said:
“72. Though it would have been helpful if Dr Bodel had expressed his opinion in the terms of the legislation, the fact that he did not did not mean that the Senior Arbitrator erred in accepting his evidence. That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process. The Senior Arbitrator properly engaged in that process and the conclusions he reached were open on the evidence.
73. The submission that if Dr Bodel thought that Mr El-Achi’s work was the main cause of the aggravation then he would have said so was presumably meant to establish that the Senior Arbitrator erred in accepting the doctor’s evidence. Such a submission is without substance. The Senior Arbitrator’s task was to assess the doctor’s evidence, weigh that evidence against the other expert evidence, and determine whether Mr El-Achi had received the injury alleged, that is, a s 4(b)(ii) injury. He did that.”
The respondent’s case was that he suffered an injury to his cervical spine and upper extremities pursuant to s 4(b)(ii) of the 1987 Act, constituting the aggravation, acceleration, exacerbation and deterioration of a ‘disease’, as a result of his employment from 28 May 2011 with a deemed injury date of 9 January 2019. The Member said that it “seemed unclear” whether Dr Cochrane “fully understood the nature of [the respondent’s] case”. The Member referred to a specific passage in Dr Cochrane’s report dated 17 May 2019. The doctor accepted the condition of cervical spondylosis was a ‘disease’ and accepted that sitting at a computer console in the workplace could have aggravated that condition. The doctor accepted there were flare-ups, a worsening of symptoms, during the respondent’s employment. The doctor said that he did not believe the respondent had sustained an ‘injury’ (see the summary at [50] to [52] above). It is made clear, by Dr Cochrane’s supplementary report referred to at [57] above, that the doctor approached the issue of ‘injury’ by reference to whether employment was a contributing factor to the underlying cervical spine pathology. This was not the appropriate test.
It is helpful to refer to a well-known passage from Federal Broom Co Pty Ltd v Semlitch (which the Member quoted from at some length[72]) in which Windeyer J said:
“The next question then is, was there in December 1960 ‘an aggravation, acceleration, exacerbation or deterioration’ of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[73]
[72] Reasons, [206]–[211].
[73] [1964] HCA 34; 110 CLR 626 (Semlitch), 639.
In the same case Kitto J said:
“Moffitt J placed at least some of his emphasis upon the word ‘exacerbation’, and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. ‘A temporary increase in the violence of the symptoms of a disease’ is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. In the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proved facts. Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of 1st December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’.”[74]
[74] Semlitch, 634.
The nature of the respondent’s case on ‘injury’ was readily apparent not only from how the matter was pleaded, but from the respondent’s history and the medical case the respondent sought to make on the basis of Dr Khong and Dr Bodel. The passages from Dr Cochrane’s evidence quoted above (see for example [54] and [57] above) are consistent with a failure on Dr Cochrane’s part to appropriately engage with the allegation that was made, based on s 4(b)(ii). The Member’s view of Dr Cochrane’s approach to the ‘disease’ provisions, described in the reasons at [301] to [304], was appropriate and available on the evidence. The doctor’s approach could not be adequately explained by how certain questions asked of him by the appellant’s solicitors were expressed. Viewed as a whole, the questions asked of Dr Cochrane by the appellant’s solicitors were carefully framed and apparently designed to elicit comment on the relevant causation issues.
The appellant submits the Member’s reason for rejecting the opinion of Dr Cochrane was that Dr Cochrane said the respondent did not contract the disease in the course of his employment, the test under s 4(b)(i), rather than s 4(b)(ii).[75] This submission is without merit. The Member in his reasons at [304] said:
“… [Dr Cochrane] disagreed with Dr Khong’s opinion on causation and opined that there was no clearly documented injury occurring in the workplace which would have accelerated or exacerbated the pathology. In this regard, Dr Cochrane appeared to have reached his conclusion that there was no aggravation or exacerbation of [the respondent’s] multi-level cervical spondylosis because there was no documented or discrete injury that caused an aggravation or exacerbation. In doing so, Dr Cochrane did not properly engage with the elements of s 4(b)(ii) of the 1987 Act on the background of the nature and conditions of employment case conducted by [the respondent] ...”.
[75] Appellant’s submissions, [33].
Reading Dr Cochrane’s reports as a whole, this assessment by the Member was available and did not involve error. It represented a valid basis for the Member’s preference for the views of Dr Khong and Dr Bodel to those of Dr Cochrane, dealing with the occurrence of ‘injury’ pursuant to s 4(b)(ii). Dr Khong’s opinion evidence persuasively supported the case brought by the respondent. It was consistent with the application of Semlitch, which Dr Cochrane’s analysis was not. That opinion was supported by Dr Bodel. Dr Bodel’s opinion retained probative force notwithstanding the doctor’s misstatement in his reference to the ‘main substantial contributing factor’. Ground No. 1, at best, is an argument that “a different outcome is preferable”, which cannot succeed on an appeal pursuant to s 352(5) of the 1998 Act (see [27] to [29] above).
Ground No. 1 fails.

GROUND NO. 2

The Member erred by failing to find that the respondent only began to state that his disease was aggravated by work at a very late stage.

Appellant’s submissions

The appellant refers to the reasons at [291] which read:
“Whilst it may have appeared extraordinary that Mr Tzivanopoulos did not consult a general practitioner in one of the two medical practices he attended about his symptoms, in particular, the sensations of numbness and tingling until 10 January 2019, he did report his symptoms to his chiropractors, Dr Park and Dr McAviney. The chiropractic treatment he received from March 2013 had been effective in enabling him to relieve and manage his symptoms until December 2018.”
The appellant submits the significant matter was not the failure by the respondent to report his symptoms, but rather to complain “that his symptoms were caused by work”. The appellant submits the chiropractic notes contain only two “suggestions … relevant to whether work was a main contributing factor”. It states that on 20 March 2013 the respondent complained of thoracic symptoms “as a result of sitting for a prolonged period”[76] and on 28 May 2013 there was a complaint “stiff – work v busy”.[77] It submits these recorded complaints “fall well short of establishing a complaint of aggravation to the cervical spine suffered at work” (emphasis in original). It refers also to an entry on 13 April 2019 that “neck pain could have affected his work performance”. It submits the last of these is not the same as saying that work affected his neck.
[76] ARD, p 307.
[77] ARD, p 308.
The appellant submits the above “fails to address the point that the respondent made no complaint that work caused his problems until after he had finished working”.[78]
[78] Appellant’s submissions, [45]–[48].

Respondent’s submissions

The respondent submits the chiropractic records were “only a small part of a collection of evidence” which formed the basis for the Member’s findings on ‘injury’. The respondent refers to more extensive notes from Mr McAviney which were touched on in the reasons at [97] to [99]. The reasons at [275] are referred to. The respondent submits that the chiropractic notes were treated as “corroborative of the worker’s evidence of symptoms and complaints”. The respondent submits the argument, that the Member’s reasoning was erroneous, because the entries did not refer to symptoms as being caused by work, ignores how the Member used the notes.[79]
[79] Respondent’s submissions, [25]–[28].
The respondent refers to Mason v Demasi and the caution to be exercised when dealing with clinical records.[80] The respondent submits that even if the argument in this ground were accepted it would not establish that the Member had arrived at a wrong result.[81]
[80] [2009] NSWCA 227.
[81] Respondent’s submissions, [29]–[32].

Consideration

This ground fails to identify an error on the part of the Member that requires correction pursuant to s 352(5) of the 1998 Act (see [27] to [29] above). It simply makes an argument going to the weight given to the chiropractic entries relied on by the Member. The respondent correctly submits that the Member relied on these to corroborate the respondent’s evidence of symptoms and complaints. It cannot be validly argued that the Member erred in accepting that evidence as corroborative, and the appellant makes no such submission. This ground is essentially misconceived. At its best, it is simply a submission that an alternative result should be preferred, which does not constitute appealable error consistent with the authorities referred to above.
Additionally, the Member specifically accepted the respondent’s evidence on the basis that he was a “witness of truth”.[82] This credit finding is not challenged on this appeal. This is sufficient to support the Member’s acceptance of the respondent’s complaints of neck and associated symptoms whilst employed by the appellant. The corroboration of such complaints in the chiropractic records simply supports that acceptance. Whether the respondent, a lay person, commented on the cause of his symptoms, is of little relevance. His views on medical causation would carry little if any weight, in any event.
[82] Reasons, [296].
Ground No. 2 fails.

CONCLUSION

Both grounds of appeal have failed. The appeal does not succeed.

DECISION

The Member’s decision dated 18 January 2022 is confirmed.

Michael Snell

Deputy President

2 November 2022