French v Hayes
[2020] NSWWCCPD 26
•7 May 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | French v Hayes [2020] NSWWCCPD 26 |
| APPELLANT: | Kevin J French |
| RESPONDENT: | Sean Hayes |
| INSURER: | AAI Limited t/as GIO – agent for the Workers Compensation Nominal Insurer |
| FILE NUMBER: | A1-4469/19 |
| SENIOR ARBITRATOR: | Mr G Capel |
| DATE OF SENIOR ARBITRATOR’S DECISION: | 30 October 2019 |
| DATE OF APPEAL DECISION: | 7 May 2020 |
| SUBJECT MATTER OF DECISION: | Whether error in determining the need for surgery resulted from the work-related injury; principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 considered and applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Rankin Ellison Lawyers | |
| Respondent: | |
| Mr L Morgan, counsel | |
| Toby Tancred Solicitor | |
| ORDERS MADE ON APPEAL: | 1. The name of the respondent wherever it appears is amended to “Kevin J French”. 2. The Senior Arbitrator’s Certificate of Determination dated 30 October 2019 is confirmed. 3. The matter is remitted to the Senior Arbitrator for determination of the remaining issues |
INTRODUCTION AND BACKGROUND
Mr Sean Hayes (the respondent) commenced proceedings in the Commission claiming weekly payments of compensation, treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum compensation pursuant to s 66 of the 1987 Act. The respondent also sought an assessment of his whole person impairment (WPI) for the purpose of establishing that he was a worker with highest needs as defined by s 32A of the 1987 Act. The respondent alleged that he suffered injury to his neck with symptoms in both arms as a result of being hit in the head by a falling aluminium plank during the course of his employment with Kevin J French (the appellant) as a painter. The injury occurred on 28 January 1998. The appellant declined the claim.
The respondent had previously received compensation pursuant to s 66 of the 1987 Act. On 4 December 2002, the appellant agreed to pay compensation in respect of 25% permanent impairment of the respondent’s neck, together with an amount in respect of the associated pain and suffering pursuant to s 67 of the 1987 Act. A second lump sum claim was resolved in favour of the respondent on 29 February 2012 in which the respondent was assessed as having a further 5% impairment of the neck as well as 15% loss of efficient use of the left arm at or above the elbow and 5% loss of use of the right arm at or above the elbow.
On 29 May 2017, the respondent underwent surgery to his cervical spine in the form of a two-level anterior discectomy and fusion at the C5/6 and C6/7 levels, which was performed under the public health system, as liability for the surgery had been declined by the appellant.
The matter proceeded to an arbitration. The issues for determination were identified as:
(a) whether the cervical discectomy and fusion was reasonably necessary as a result of the injury sustained on 28 January 1998;
(b) the extent and quantification of the respondent’s entitlement to weekly compensation;
(c) liability for the respondent’s medical expenses, and
(d) the quantification of the entitlement pursuant to s 66 of the 1987 Act.
In a Certificate of Determination (COD) dated 30 October 2019, The Senior Arbitrator found that the surgery was reasonably necessary as a result of the injury. He referred the claim pursuant to s 66 of the 1987 Act to an Approved Medical Specialist (AMS) for assessment in accordance with the Table of Disabilities (the applicable table for assessing impairment in respect of injuries prior to 1 January 2001) and for assessment of the respondent’s WPI. The Senior Arbitrator deferred the question of the respondent’s weekly entitlements until after the AMS had issued a Medical Assessment certificate (MAC) in order to provide the parties with the opportunity to adduce further relevant evidence.
The MAC was issued by Dr Tim Anderson, AMS, on 14 November 2019. The AMS assessed 29% WPI in respect of the cervical spine, 7% WPI of the left upper extremity and 5% WPI of the right upper extremity. He also assessed the respondent’s losses in accordance with the Table of Disabilities as 36% permanent impairment of the neck,10% loss of efficient use of the right arm at and above the elbow and 20% loss of efficient use of the left arm at and above the elbow.
The appellant appeals the decision of the Senior Arbitrator.
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 agree that the appeal can 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 subss 352(3) and 352(4) of the 1998 Act have been met.
The Senior Arbitrator has yet to determine the appellant’s entitlement to weekly compensation. If the decision made by the Senior Arbitrator is interlocutory in nature, then leave to bring the appeal is required pursuant to s 352(3A) of the 1998 Act. Neither the appellant nor the respondent have addressed the question of whether the appeal is from an interlocutory decision. Nonetheless, the Senior Arbitrator’s decision that the cervical discectomy and fusion and associated expenses was reasonably necessary treatment as a result of the injury on 28 January 1998 is a binding finding that fixes liability with the appellant for the surgery and its consequences. Accordingly, the Senior Arbitrator’s decision is not interlocutory in nature and the appellant does not require leave to bring this appeal.[1]
[1] Maricic v Medina Serviced Apartments Pty Ltd [2007] NSWWCCPD 196.
The name of the appellant
The respondent commenced the proceedings in the Commission indicating that the name of the respondent was Andrew Kelly and Kevin French t/as Kelly and French Painting Contractors, consistent with the name of the respondent identified in the previous Compensation Court proceedings. In the proceedings at first instance and in this appeal, the appellant (the respondent below) identified his correct name to be Kevin J French. It appears the Senior Arbitrator did not consider which was the correct name of the respondent. I am advised by the appellant that the correct name of the appellant is Kevin J French. I am also advised that the respondent to the appeal agrees, and consents to an amendment of the name of the respondent below. I therefore amend the name of the respondent wherever it appears to “Kevin J French”.
THE EVIDENCE
The respondent’s statements
The respondent provided a number of statements.
The first statement was dated 20 December 2011.[2] The respondent described the injury on 28 January 1998 when he was assisting to paint a church in Orange. The painters were using scaffolding with an aluminium plank positioned at the top of the scaffolding. When the respondent was attempting to move the plank, the plank came off and hit the respondent on the top of his head and his neck. The respondent said that he attended Orange Base Hospital, x-rays were undertaken, and he was referred to physiotherapy as an outpatient. The respondent stated that he was unable to work for three to four weeks but subsequently returned to full duties.
[2] Application to Resolve a Dispute (ARD), pp 1–7.
The respondent indicated that he continued to consult his general practitioner, Dr Robert Matthews, for neck pain and morning stiffness in the neck. Dr Matthews prescribed anti-inflammatories and referred the respondent to a pain management consultant, Dr Graeme Worsley. The respondent stated that he consulted Dr Worsley on 17 January 2001, who recommended a series of injections, which provided the respondent with some relief.
The respondent described his post injury employment with various other employers. He provided a history of a back injury on 2 April 2007, when he twisted while climbing through scaffolding, a left knee reconstruction in October 2007 (resulting from an old sporting injury) and a right knee reconstruction that had been performed some time in the past.
The respondent further described an incident with a later employer on 14 May 2008 when he was standing on a step ladder using a spray gun with a long hose and air compressor. The respondent said the hose became caught around the step ladder and caused the step ladder to topple over and he fell about 1.5 metres onto concrete. The respondent stated that he fractured his right elbow and injured his right hip. He was treated at Forbes District Hospital and thereafter was under the care of his general practitioner, Dr R Leslie.
The respondent also reported that he suffered a further injury with that later employer on 1 July 2008 when he was working on a trestle held up by scaffolding. The respondent stated that the trestle and scaffolding collapsed from under him, causing him to fall on his left knee. He was thrown back, hitting his head on a brick wall. He said he suffered a cut on the back of his head, and he blacked out. The respondent indicated that when he became conscious, he was in great pain and was concerned about his left knee. The respondent said that a co-worker drove him to Orange Base Hospital, where his left knee was x-rayed and the following morning, he awoke with limitation of movement in his back and stiffness. He consulted Dr Leslie who prescribed analgesia for the pain. The respondent subsequently consulted Dr N Cooney, general practitioner, who referred him to Dr Geoffrey Mutton, orthopaedic surgeon. The respondent said that Dr Mutton arranged for a CT scan of his neck and MRI scans of his thoracic and lumbar spines.
The respondent reported that he returned to full time work avoiding heavier duties but ceased work on 16 July 2009 because of severe pain in his low back and left leg. The respondent advised that Dr Mutton performed a discectomy at the L3/4 level of the lumbar spine on 6 October 2009, following which the respondent continued to be unable to work. The respondent described receiving treatment for his left knee (including a further left knee reconstruction) from Dr Andrew Ashton, orthopaedic surgeon.
The respondent stated that, following the injury to his neck in 1998, he had always experienced neck pain that spread to his shoulders. He said that earlier in 2011, he began to experience progressively worsening neck pain and stiffness, accompanied by bad headaches and numbness and tingling over the left side of his face. He consulted Dr Christine Willis, general practitioner, who referred him to an audiologist, a physiotherapist and for pain management.
The respondent confirmed that on 4 December 2002, he had received compensation from the appellant for the permanent impairment of his neck and the associated pain and suffering pursuant to ss 66 and 67 of the 1987 Act.
The respondent provided a second statement, which was dated 14 March 2013.[3] The respondent confirmed the history of injuries described in his earlier statement. Relevantly, the respondent detailed the consequences of the injury that occurred on 2 July 2008, which were:
(a) constant pain in the low back, aggravated by activity;
(b) low back stiffness with difficulty bending and twisting;
(c) worsening back pain with numbness and tingling in the feet when sitting or standing for prolonged periods or driving for more than 20 minutes;
(d) difficulty lifting bending, showering and toileting, as well as various other difficulties as a result of his low back condition, and
(e) left knee pain and difficulties.
[3] ARD, pp 8–18.
In a statement dated 19 December 2014, the respondent referred to the injury on 28 January 1998.[4] He indicated that in the incident, he suffered pain in his neck, and that prior to the injury, he had never previously experienced neck pain to that degree. He conceded that he had, from time to time, experienced only minor neck pain or stiffness due to day to day activities. He stated that the neck pain never recovered after the 1998 injury. He described the pain as constant, spreading to his shoulders, with numbness and pain down both arms. The respondent complained of headaches, difficulty sleeping and an inability to move his neck freely.
[4] ARD, pp 19–20.
The respondent indicated that he wished to undergo the cervical decompression recommended to him by Dr Mark Winder, neurosurgeon.
The respondent referred to a medical examination with Dr Vidyasagar Casikar arranged by the appellant, which he attended on 22 October 2014, and the subsequent report by Dr Casikar. The respondent complained that the doctor did not examine him and spent most of the fifteen minutes of the consultation time reading the papers and looking at some of the scans. The respondent challenged the history recorded by Dr Casikar that after the 1998 injury, he returned to pre-injury duties until the 2008 injury. The respondent said that following the 1998 injury, he was riddled with neck pain and was never able to do all the pre-injury tasks he used to perform.
In a subsequent statement dated 9 December 2015,[5] the respondent disputed the history recorded by Dr Winder that the respondent suffered injury to his neck in the incident on 1 July 2008. The respondent said that the injuries were limited to his knee and low back and that the problems with his neck, arms and tingling in his hands were as a result of the injuries sustained on 28 January 1998.
[5] ARD, p 22.
In a further statement dated 16 May 2016, the respondent again denied that he had suffered any injury to his neck other than the injury on 28 January 1998.[6]
[6] ARD, pp 23–24.
In yet a further statement, the respondent again complained about Dr Casikar in the context of a further examination and report from Dr Casikar dated 1 August 2019.[7] The complaints centred around Dr Casikar’s manner during the consultation and his refusal to consider all of the material before him.
The medical evidence from the respondent’s treatment providers
[7] ARD, p 25.
Dr Robert Matthews, general practitioner
The respondent was referred by Dr Matthews to Dr Worsley in 2001. In the letter of referral dated 15 January 2001,[8] Dr Matthews recorded the history that the respondent was experiencing occipital pain and headaches when looking upwards to paint ceilings. Dr Matthews also referred to the respondent suffering an injury to his head and cervical spine when he was hit on the head by a plank two and a half years previously. Dr Matthews confirmed that a CT Scan dated 26 May 2000 disclosed no evidence of a disc protrusion and queried whether occipital nerve injections would benefit the respondent.
[8] ARD, p 142.
Dr Matthews’ clinical notes spanning the period 4 June 1993 to 25 October 2016 were also in evidence.[9] There were no entries referring to neck symptoms prior to the injury on 28 January 1998. The following entries in those notes are relevant:
(a) the respondent attended on 11 February 1998 reporting that a plank had fallen on his head at work, which knocked him to the ground and caused neck pain and stiffness;
(b) on 12 June 1998 the respondent attended complaining of neck pain, especially at the end of a working day, and early morning stiffness;
(c) on 1 May 2000 the notes again referred to the 1998 injury and the respondent complaining of neck pain in the mid-cervical spine accompanied by referred pain to the shoulders without paraesthesia, and
(d) the respondent further attended complaining of neck pain on 5 June 2000, 12 March 2001, 4 May 2001 and 18 May 2002.
[9] ARD, pp 261–275.
Dr Graeme Worsley, pain management specialist
In correspondence to Dr Matthews dated 17 January 2001,[10] Dr Worsley confirmed the history of the respondent having been struck on the vertex of his skull by a plank, which he recorded occurred in the middle of the year in 1996 [the description of injury would indicate that it was the injury on 28 January 1998]. Dr Worsley noted that in the event, the respondent had briefly lost consciousness. Dr Worsley recorded the history that the respondent underwent x-rays which were normal and was then treated for four months by physiotherapy.
[10] ARD, pp 143–144.
Dr Worsley said that the respondent complained of constant cervical pain radiating and extending to the lower thoracic region, sharp or aching headaches, particularly when mobilising in the morning and aggravation of the symptoms being by cervical extension and movement. On the basis of his clinical examination of the respondent, Dr Worsley diagnosed the development of cervical facet joint arthritic degeneration. Dr Worsley advised that he had injected the respondent’s C3/4 and C4/5 apophyseal joints bilaterally with a depo-steroid anaesthetic.
Dr Worsley wrote again to Dr Matthews on 9 July 2002.[11] Dr Worsley referred to the respondent’s right cervical pain and headache. Examination of the respondent disclosed exquisite tenderness over the mid right apophyseal joint which was consistent with the C4/5 level of the spine and the greater occipital nerve exit foramen. Dr Worsley advised that after the injection of the apophyseal joint the respondent noticed a recurrence of occipital, radiating headaches.
[11] ARD, p 145.
Dr Geoffrey Mutton, orthopaedic surgeon
Dr Mutton examined the respondent on 3 June 2009 at the request of Dr Cooney. He provided a report dated 24 November 2012 directed to the respondent’s then legal representatives, Whitely Ironside and Shillington.[12] Dr Mutton noted the history that the respondent:
(a) had suffered an injury to his head, neck and back in 1997 [sic 1998], but that the respondent complained that the main injury was the neck;
(b) suffered an injury to his right elbow and right hip on 14 May 2008, with the respondent reporting that he mainly injured his back, and
(c) had an injury on 2 July 2008 involving the left knee, shoulder, a laceration to his head and had a period of unconsciousness, mainly injuring his left knee.
[12] ARD, pp 139–141.
Dr Mutton proceeded to examine and discuss the respondent’s low back condition.
Associate Professor Philip Siddall, pain management specialist
The respondent attended the Pain Management and Research Centre at the Royal North Shore Hospital under the care of A/Prof Siddall. In a letter dated 7 June 2011 directed to Dr Charles Ellis, general practitioner, A/Prof Siddall recorded a history of a number of incidents that contributed to the respondent’s pain.[13] Those were referred to as:
(a) an incident in 2000 when a piece of scaffolding fell on the respondent’s head, resulting in continuous neck pain;
(b) a further incident in 2008 when the respondent fell from a ladder and landed on his hip and buttocks, and
(c) a third incident a few months later when the respondent fell from scaffolding, exacerbating his hip and buttock pain and developing low back and leg pain.
[13] ARD, p 215.
Dr Christine Willis, general practitioner
On 31 September 2011, Dr Willis referred the respondent to “On the Move” physiotherapy service.[14] Dr Willis informed the service that the respondent was suffering from a chronic pain syndrome associated with a lumbar injury in 2008 and a cervical injury in 1998 with the main problem being cervicogenic headaches. On 30 September 2011, Dr Willis referred the respondent for psychological intervention through the Curran Centre in Orange in respect of long-standing depression in the context of chronic pain.[15] Dr Willis diagnosed C5/6 disc degeneration and noted the onset to be 2009. Dr Willis also noted the past history of an aluminium plank on a scaffold falling onto the respondent’s head. Dr Willis also advised of the respondent’s lumbar and left and right knee symptoms and treatment. Dr Willis referred the respondent to Dr Clare Sui, pain management specialist, on 15 November 2011.[16] The referral was expressed in the same terms as the referral to the Curran Centre.
[14] ARD, p 222.
[15] ARD, pp 223–224.
[16] ARD, p 225.
Dr Zeshan Shaikh, general practitioner
On 16 April 2012 and 7 May 2012, Dr Shaikh certified in WorkCover Certificates of Capacity that the respondent had capacity to work for 12 hours per week with restrictions in respect of lumbar and cervical conditions.[17] On 16 April 2012, Dr Shaikh also referred the respondent to Dr John Sheehy, neurosurgeon, for an opinion about potential surgical management of both the respondent’s cervical and lumbar symptoms.[18] Dr Shaikh noted neck pain that had been present for several years, worsening in the previous two years and several years of lumbar symptoms, worsening in the previous two months.
[17] ARD, pp 230 and 233.
[18] ARD, pp 231–232.
In two short letters in response, Dr Sheehy advised both Dr Shaikh and the respondent that surgical intervention was not required, but he would be happy to review the respondent if necessary.[19]
[19] ARD, pp 234 and 235.
Dr Mark Winder, neurosurgeon
Dr Winder corresponded with Dr Shaikh, on 9 April 2014.[20] Dr Winder discussed the respondent’s back injury and the subsequent treatment. He also observed that examination of the respondent’s cervical spine displayed signs of myelopathy and advised that he was concerned about potential compression of the cervical cord. Dr Winder arranged for the respondent to undergo an MRI scan and reported again to Dr Shaikh on 24 April 2014.[21] Dr Winder advised that the MRI scan showed two disc protrusions at the C5/6 and C6/7 levels of the cervical spine, with an 8mm reduction of the canal dimensions at that level. Dr Winder was of the view that the respondent’s neck condition could be managed conservatively at that stage.
[20] ARD, pp 178–179.
[21] ARD, pp 180–181.
Dr Winder also provided a report to the appellant on 11 August 2014.[22] Dr Winder advised that the cervical MRI scan disclosed evidence of cervical cord effacement and signal change within the spinal cord at the level of the C6/7 disc protrusion. Dr Winder observed that the respondent experienced bilateral pins and needles in the hands which pointed toward a degree of cervical myelopathy and was in keeping with the injury when the scaffolding fell on the respondent. Dr Winder advised that the only treatment for myelopathy was a decompression of the spinal cord at the C5/6 and C6/7 levels.
[22] ARD, p 182.
On 12 May 2016, Dr Winder reported that the respondent was hyperflexive with obvious weakness of the right upper limb when performing shoulder abduction, elbow flexion and extension and wrist strength. Dr Winder described the problem as being consistent with cervical myelopathy and as a major concern.[23]
[23] ARD, p 196.
Lastly, Dr Winder reported on 20 October 2017 that the respondent had undergone a two-level cervical discectomy and fusion under the public health system.[24] Dr Winder described the respondent as being in a “sordid state”, reporting that the respondent’s reflexes were even more brisk and there was difficulty assessing the respondent’s upper limbs because of the extent of the pain. Dr Winder noted that the respondent was to see a chronic pain specialist. Dr Winder said that, in the context of the severity of the reflex changes, it was necessary for the respondent to undergo a further MRI scan of the neck and thoracic spine in order to exclude the possibility of any cord compression.
[24] ARD, p 200.
Dr Nathan Zhou, general practitioner
Dr Zhou provided WorkCover Certificates of Capacity for the period between 29 January 2015 and 27 May 2015.[25] The date of injury on those certificates was nominated as 12 July 2008 and the diagnosis provided by Dr Zhou in each certificate was “Lumbar spine injury post op L4/5 discectomy and fusion, major depression (QBE) neck pain worse (CGU)”.
[25] ARD, pp 240–254.
In response to an enquiry from the respondent’s legal representatives, Dr Zhou forwarded a hand-written note indicating that he was unable to find any record of a neck injury in 1998 in the clinical notes held by the practice.[26]
The medico-legal opinions
[26] ARD, p 259.
Dr Robert Smith, consultant surgeon
Dr Smith provided a report dated 26 July 2001 at the request of the appellant.[27] Dr Smith took a history of the injury in 1998 and described the history provided by the respondent as somewhat inconsistent. Dr Smith observed that the respondent appeared well built and physically fit with clean but calloused hands. On examination Dr Smith recorded a full range of movement of the neck and shoulders. Dr Smith noted discomfort with pressure over the mid cervical region. Dr Smith recommended a nuclear bone scan but said that he was almost certain that the respondent had recovered from the injury in 1998.
[27] ARD, pp 82–86.
Dr Max Ellis, orthopaedic surgeon
Dr Ellis examined the respondent and reported to the respondent’s former legal representatives on 15 November 2011.[28] Dr Ellis referred to an earlier report provided by him on 23 November 2010, which is not in evidence. Dr Ellis recorded the history of the respondent’s injuries in 2007 and 2008, making no reference to an injury to the neck in any of those incidents. Dr Ellis did record the 1998 injury in the respondent’s “past history”. Dr Ellis noted that the respondent injured his neck and thereafter had continuing intermittent neck pain, which became worse in the nine months leading up to the examination, began to spread to the left shoulder and upper arm and there was numbness and paraesthesia in both hands affecting all fingers intermittently.
[28] ARD, pp 146–151.
Dr Ellis opined that there was no aggravation of the neck condition in the injuries in 2007 and 2008 and that the secondary effects of the neck injury involving the respondent’s upper limbs did not arise until nine months prior to the examination. In accordance with the Table of Disabilities, Dr Ellis assessed the respondent’s permanent impairment of the neck as 15% and loss of efficient use of each arm at and above the elbow as 10% as a result of the injury in 1998.
Dr David O’Keefe, orthopaedic surgeon
Dr O’Keefe was initially retained by the appellant to provide a medico-legal opinion but was subsequently qualified by respondent’s former legal representatives.
In his first report dated 15 February 2012,[29] Dr O’Keefe provided a history of the injury on 28 January 1998 and noted the subsequent injuries with other employers. Dr O’Keefe further noted the settlement on 4 December 2002 of the respondent’s lump sum entitlements pursuant to s 66 and s 67 of the 1987 Act, which did not include any loss attributable to the upper limbs or back. Dr O’Keefe reported that the respondent categorically denied having suffered any further injury to his neck in the later injuries. Dr O’Keefe examined the respondent and reviewed the radiological evidence. Dr O’Keefe opined that the respondent’s worsening neck symptoms were almost certainly attributable to arthritic degeneration which had been present for the past two years and followed from the injury on 28 January 1998. Dr O’Keefe noted the restrictions in the respondent’s left side and trapezius muscle but also felt that there were problems with the left shoulder which had not been investigated. Dr O’Keefe assessed the respondent as suffering from 25% permanent impairment of the neck, 15% of the left arm at or above the elbow and 5% of the right arm at or above the elbow pursuant to s 66 of the 1987 Act. Dr O’Keefe formed the view that the respondent’s neck and arm condition was an ongoing aggravation of the injury to the neck on 28 January 1998.
[29] ARD, pp 152–157.
Dr O’Keefe provided a report dated 21 February 2013 directed to the respondent’s former legal representatives.[30] Dr O’Keefe referred briefly to the respondent’s neck injury in 1998, then described the subsequent injuries, which he reported were injuries to the back, left knee and right elbow. Dr O’Keefe assessed the respondent’s WPI of the lumbar spine and left lower extremity resulting from the later injuries. Dr O’Keefe made no other reference to the respondent’s neck condition.
[30] ARD, pp 173–177.
Dr O’Keefe provided a further report directed to the respondent’s former legal representatives dated 4 March 2015 which addressed the respondent’s injury on 28 January 1998.[31] Dr O’Keefe recorded a consistent history of the mechanism of injury. Dr O’Keefe also took a history of a further injury (without a nominated date) with a later employer, in which the respondent fell to the ground and suffered injury to the back, left and right knees and right elbow. Dr O’Keefe discussed the respondent’s deteriorating pain and the results of an MRI scan of the respondent’s cervical spine carried out on 12 July 2012. He noted Dr Winder’s diagnosis of cervical myelopathy and recommendation for surgery in the form of a C5/6 and C6/7 decompression. Dr O’Keefe further noted Dr Casikar’s opinion that the respondent was not a suitable candidate to undergo a spinal fusion, which Dr O’Keefe said was not the surgery proposed by Dr Winder.
[31] ARD, pp 191–195.
Dr O’Keefe opined that the cause of the respondent’s neck condition was related to the injury in 1998 because his neck was not injured in the second accident. He also formed the view that on the basis of the respondent’s signs and symptoms, surgery was indicated but felt that the most useful surgery would be a two-level anterior interbody fusion. Dr O’Keefe again referred to the opinion of Dr Casikar and reasoned that Dr Casikar’s view was based on an earlier MRI scan and the respondent’s condition had since deteriorated.
Dr O’Keefe provided a further short report dated 27 June 2016 addressing the opinion of Dr Geoffrey Stubbs, AMS and orthopaedic surgeon.[32] The AMS had provided a non-binding opinion on 1 March 2016 that surgery in the form of a cervical fusion was not necessary because there was an absence of radiculopathy and/ or instability of the spine. Dr O’Keefe agreed that the respondent did not have either of those conditions but said that the surgery was intended to address myelopathy (a cervical cord compression) and was a matter exclusively for the domain of a neurosurgeon and not an orthopaedic surgeon.
[32] ARD, p 198.
Dr Vidyasagar Casikar, neurosurgeon
Dr Casikar examined the respondent on behalf of the appellant and provided a report dated 22 October 2014.[33] Dr Casikar took a consistent history of the injury and the treatment provided following the injury. Dr Casikar noted the respondent complained of worsening neck pain, catching in the neck, numbness in the fingers when lying down and headaches. Dr Casikar further noted the injury in 2008 wherein the respondent fell from scaffolding, following which the respondent underwent a lumbar fusion. Dr Casikar referred to Dr Winder’s opinion that the respondent should undergo an “ACDF” (presumably an anterior cervical decompression and fusion). Dr Casikar reviewed the MRI scan dated 18 July 2012, indicating that he was not provided with the most recent MRI scan, the results of which were the basis for Dr Winder’s recommendation in respect of surgery. Dr Casikar diagnosed cervical spondylosis and commented that the neurological symptoms were non-verifiable on clinical examination. Dr Casikar considered that he was unable to come to a conclusion about whether surgery was indicated without access to the most recent MRI scan, but noted a normal examination of the respondent. Dr Casikar was unsure of whether the respondent would benefit from the surgery in terms of employability. Dr Casikar opined that the description of the injury was one of axial loading, which was not consistent with the respondent’s presentation or the radiological investigations. Dr Casikar said that he found it difficult to accept that the need for surgery, and in fact the present problems resulted from the injury in 1998. Dr Casikar described the respondent’s prognosis as poor. Dr Casikar concluded that the respondent was not suffering from any medical condition solely related to the injury.
[33] Reply to Application to Resolve a Dispute (Reply), pp 29–35.
Dr Casikar provided a further report dated 1 August 2019.[34] On this occasion, Dr Casikar also took a history of the two later injuries in 2008 and noted the respondent had undergone a lumbar laminectomy at the hands of Dr Mutton and a spinal fusion at the hands of Dr Winder, neither of which benefitted the respondent. Dr Casikar further noted that Dr Winder had performed a two level “ACDF” on 6 August 2017 and a second cervical fusion on 25 August 2017, also without benefit. Dr Casikar reviewed MRI scans of the cervical spine dated 11 May 2017 and 13 May 2016 and diagnosed failed back syndrome, failed cervical syndrome and spastic quadriparesis. Dr Casikar considered that multiple surgeries would be of no assistance to the respondent and felt an assessment by a neurologist would be useful. Dr Casikar remarked on the opinion of Associate Professor Noel Dan and said that while a disc extrusion might occur some months after an injury, it was difficult to extend that period to 17 years. Dr Casikar also commented that A/Prof Dan had supported the need for the respondent’s cervical surgery, but that such optimism was not supported by the outcomes. Dr Casikar found it very difficult to accept A/Prof Dan’s view that the injury in 1998 was responsible for the multiple surgeries many years later.
[34] Reply, pp 20–28.
Associate Professor Noel Dan, neurosurgeon
The respondent’s legal representative qualified A/Prof Dan to examine and provide a report on behalf of the respondent. In a report dated 8 April 2019,[35] A/Prof Dan recorded the history of the injury on 28 January 1998 and its consequences. A/Prof Dan noted that the respondent suffered from severe headaches and experienced difficulty sleeping, as well as difficulty with the heavier aspects of his work as a painter. A/Prof Dan reviewed documentary material relating to the injury in July 2008 and the resulting lumbar discectomy performed by Dr Mutton. A/Prof Dan took details of the respondent’s current symptoms, which included headaches in the occipital region, throbbing and stiffness in the neck and aching in his shoulders. On examination, A/Prof Dan found tenderness over the occipital nerves bilaterally, the cervical region and the suprascapular region. A/Prof Dan reviewed the radiological investigations, noting that many of the earlier investigations had degraded and were of no assistance. A/Prof Dan reported that:
(a) the MRI scan of the cervical spine dated 19 May 2010 showed a C5/6 disc lesion with minimal change at the C6/7 level;
(b) the C5/6 disc was more prominent in the MRI scans taken on 18 July 2012 and 24 August 2014;
(c) the MRI scan dated 13 May 2016 showed the C5/6 lesion was greater than the C6/7 lesion, with a large sequestrated fragment at the C6/7 level, and
(d) the MRI dated 11 May 2017 showed the sequestrated fragment at the C6/7 level with a smaller C5/6 disc lesion.
[35] ARD, pp 201–205.
A/Prof Dan reviewed the documentary material, which included Dr Matthews’ clinical notes, the history recorded by Dr Worsley, the reports of Dr O’Keefe and the MAC issued by Dr Stubbs, AMS. A/Prof Dan particularly referred to the comment by the AMS that the respondent’s cervical fusion was to address radiculopathy and/or instability of the cervical spine or spinal cord compression but that those conditions were not present. A/Prof Dan remarked that the respondent was a poor historian but did complain of radicular symptoms, even though they did not meet the criteria for assessment of WPI. A/Prof Dan commented that at the time of the surgery, the respondent had a very large cervical disc lesion which was compressing the cervical cord and the correct approach for management of that condition was to remove the sequestrated disc and an anterior cervical fusion was an inevitable requirement that followed. A/Prof Dan explained that the surgery was to address spinal cord compression. A/Prof Dan said that the respondent reported to him that he had always suffered from headaches following the injury in 1998.
A/Prof Dan extensively reviewed the reports and documentation provided by Dr Winder and noted Dr O’Keefe’s acknowledgement that the cervical myelopathy was a neurosurgical issue, rather than an orthopaedic concern. A/Prof Dan concluded that he had no doubt that the respondent suffered a cervical injury, resulting in severe headaches and occipital neuralgia. He said that the cervical pain, the large disc protrusion and the upper limb symptoms and hyper-reflexia reflected spinal cord dysfunction. A/Prof Dan did not doubt that the disc protrusion was not initially present but commented that they do not occur in the cervical spine spontaneously. A/Prof Dan further concluded that, in his view, the respondent suffered a significant cervical injury in the incident in 1998, which was probably exacerbated by the incident on 1 July 2008. He opined that the “subsequent injury would be significantly attributed to the 1998 injury.”[36] A/Prof Dan provided assessments of the respondent’s WPI of the cervical spine.
[36] Report dated 8 April 2019, p 4, [3], ARD, p 204.
In a subsequent short report dated 3 July 2019, A/Prof Dan clarified his opinion on causation expressed in his earlier report.[37] A/Prof Dan advised that there was an exacerbation of the respondent’s cervical injury in the 2008 incident and that the exacerbation was not temporary. He said, however, that the respondent’s primary dysfunction related to the 1998 injury. He added that there was a cumulative defect as result of the 2008 injury but that the underlying pathology still resulted from the 1998 injury. A/Prof Dan explained that, on the basis of continuing symptoms since 1998, there could be little doubt that the cervical injury dated back to that time even though the disc extrusion occurred some time later. Overall, he expressed the view that there was strong evidence that the need for surgery performed by Dr Winder in 2017 flowed from the 1998 injury.
[37] ARD, p 207.
The Medical Assessment Certificate
The MAC provided by Dr Stubbs, AMS, dated 1 March 2016 was also in evidence.[38] The AMS was asked to provide a non-binding opinion as to whether the decompression and fusion of the respondent’s C5/6 and C6/7 discs proposed by Dr Winder was reasonably necessary. The AMS reviewed the documentary material and recorded the history of the respondent’s injuries, which included that the respondent hit and lacerated his head in the injury on 1 July 2008. The AMS summarised the history as an injury beginning in 1998 and a cut on the back of the head in the fall on 1 July 2008. The AMS said that the respondent advised that he had always had neck and shoulder pain, which increased in 2008, following the injury in 1998 but provided no details of any further injury to the neck.
[38] ARD, pp 117–130.
The AMS was of the view that the clinical examination revealed no neurological deficits in the upper or lower limbs, the respondent’s neck showed poor extension but otherwise reasonable movement with a symmetrical pattern and again with no neurological deficit. The AMS reviewed in some detail the radiological investigations and reports. The AMS observed that the MRI investigations confirmed his assessment that there was no cord compression and concluded that the respondent suffered from age related degenerative cervical spondylosis which had not been contributed to by the injury in 1998. The AMS disagreed with Dr Winder’s view that there was myelopathy due to cervical and thoracic compression. The AMS conceded that the imaging showed some indentation of the cervical cord but said there was no compression and there were no features that would confirm the presence of myelopathy. He determined that the proposed treatment was not reasonably necessary as a result of the injury.
The radiological evidence
Numerous radiological investigations were annexed to the ARD and the Reply.[39] A further MRI scan dated 24 April 2014 was not in evidence but was discussed by Dr Winder in his reports. The Senior Arbitrator provided a concise and accurate summary of those scans which is reproduced below.
[39] ARD, pp 208, 228 and 260, Reply pp 42, 43 and 44.
Documentation
A COD issued on 11 December 2015 was in evidence, in which the same Senior Arbitrator, Mr G Capel, remitted the matter to the Registrar for referral of the question of the proposed surgery to the AMS.[40]
[40] ARD, pp 114–115.
Terms of Settlement in Matter No 52986 of 2001 dated 4 December 2002 confirmed the appellant and respondent entered into an agreement to resolve the respondent’s lump sum entitlements pursuant to s 66 for 25% permanent impairment of the neck and $1,000 in respect of the associated pain and suffering pursuant to s 67.[41]
[41] ARD, pp 305–306.
A Complying Agreement under s 66A of the 1987 Act dated 30 March 2012 confirmed that the respondent and the appellant resolved the respondent’s further claim pursuant to s 66 and s 67 for a further 5% permanent impairment of the neck, 15% loss of efficient use of the left arm at and above the elbow, 5% loss of efficient use of the right arm at and above the elbow and a further $14,000 for the associated pain and suffering pursuant to s 67 of the 1987 Act.[42]
[42] Reply, pp 60–62.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator summarised the respondent’s statement evidence and reviewed the medical evidence relied upon by both parties. He accurately summarised the radiological evidence as follows:
“The x-rays taken on 28 January 1998 showed some narrowing at C4/5 and C5/6 that may have been traumatic in origin, and a loss of lordosis, consistent with muscle spasm.
A CT scan dated 26 May 2000 showed no evidence of any gross abnormality, whilst an MRI scan dated 1 November 2002 merely showed minor bulging at C5/6 and C6/7.
A CT scan was performed on 20 June 2011. It was noted that the applicant had experienced worsening neck pain over a period of six weeks together with morning occipital headaches, left trapezial and deltoid radiation and bilateral finger and hand tingling. The scan showed minor left sided protrusions at C5/6 and C6/7 with slight indentation but there was no visible cord compression.
A CT scan dated 12 April 2012 reported similar findings, but there was mild left sided compression at C5/6 and the protrusion at C6/7 was reported as ‘probably contacting the ventral cord surface without compression’.
An MRI scan dated 24 April 2014 confirmed that the protrusion at C5/6 was in contact with the cord, but there was no compression. There was degenerative spondylosis at C5/6 and at C6/7 and osteophyte formation at C6/7 without cord compression.
Finally, the MRI scan dated 13 May 2016 showed bulging at C5/6 without impingement and a protrusion at C6/7 that was in contact and distorted the spinal cord. There was stenosis and a potential impingement on the C7 nerve. There were no imaging features of myelomalacia.”[43]
[43] Hayes v Andrew Kelly & Kevin French t/as Kelly & French Painting Contractors [2019] NSWWCC 352 (reasons), [65]–[70].
The Senior Arbitrator also provided a detailed summary of the submissions of both parties.
The Senior Arbitrator identified the issue to be determined was whether the need for surgery arose as a result of the undisputed neck injury on 28 January 1998, which was a question of causation. He observed that an issue of causation is one of fact which has to be determined on a case by case basis. He referred to the High Court authority of Comcare v Martin,[44] but said that the causal chain of connection described in Kooragang Cement Pty Ltd v Bates[45] still had application in the Commission. The Senior Arbitrator cited Kirby P’s observation in Kooragang that notions of proximate cause were no longer accepted and that the mere passage of time between the work injury and the subsequent incapacity or death was not determinative of the entitlement to compensation.[46]
[44] [2016] HCA 43; 258 CLR 467.
[45] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[46] Kooragang, 463.
The Senior Arbitrator also referred to the decision of Burke CCJ in Rose v Health Commission (NSW),[47] in which Burke CCJ considered what constituted “reasonable treatment” for the purposes of s 10 of the Workers’ Compensation Act 1926 (the 1926 Act), which was the equivalent provision to s 60 of the 1987 Act. The Senior Arbitrator cited the relevant passages from that decision in which his Honour concluded that the Court should have regard to:
(a) the medical evidence as to whether the treatment was appropriate;
(b) whether alternate treatment was available;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the place that treatment took in the context of the usual treatment for the condition.[48]
[47] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[48] Rose, 47.
The Senior Arbitrator also referred to a later decision of Burke CCJ in Bartolo v Western Sydney Area Health Service,[49] in which his Honour referred to the test as being whether it is better for the worker to have the treatment or not,[50] but the Senior Arbitrator noted that Roche DP questioned that approach in Diab v NRMA Ltd.[51] The Senior Arbitrator noted that Roche DP approved the approach in Rose. The Senior Arbitrator also noted that Roche DP summarised the relevant principles for consideration, which Roche DP considered to be “useful heads for consideration,” and added that Roche DP observed that all treatment carries a risk, so that a poor outcome does not necessarily indicate that the treatment was not reasonably necessary.[52]
[49] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
[50] Bartolo, 238.
[51] [2014] NSWWCCPD 72 (Diab).
[52] Diab, [88]–[90].
The Senior Arbitrator also observed that a condition can have multiple causes but that the respondent had to establish that the injury materially contributed to the need for surgery. The Senior Arbitrator relied on Murphy v Allity Management Services[53] for that proposition and quoted the relevant passages from that authority.
[53] [2015] NSWWCCPD 49 (Murphy), [57]–[58].
The Senior Arbitrator turned to the respondent’s evidence and noted that the respondent maintained that he had continued to experience neck stiffness and pain extending to the shoulders and arms as well as numbness and pain in the arms since he suffered the injury on 28 January 1998. The Senior Arbitrator further noted that the respondent continued to work but reported complaints of worsening pain to his general practitioner from time to time, in the context of performing overhead painting. The Senior Arbitrator gave as an example the referral by Dr Matthews to Dr Worsley in January 2001.
The Senior Arbitrator referred to the history recorded by Dr Smith that, after the injury on 28 January 1998, the respondent returned to normal work, so that it appeared the respondent had performed his usual duties, probably with some restrictions, prior to the injury on 1 July 2008. The Senior Arbitrator also referred to the opinion of Dr Worsley in January 2001 that the respondent had developed cervical facet joint arthritic degeneration but did not comment on causation. The Senior Arbitrator referred to the lack of detail in the respondent’s statements as to what transpired between 2001 and 2008 but observed that the clinical notes disclosed that the respondent experienced intermittent flare ups of neck pain from 1998 to 2002 and headaches from 2011.
The Senior Arbitrator considered the history recorded by A/Prof Siddall that the respondent had experienced neck pain since the injury in 1998 and, consistent with Dr Worsley’s opinion, suspected that there may have been facet joint pathology.
The Senior Arbitrator commented that Dr Mutton’s evidence was of little assistance because Dr Mutton had focussed on the 2008 injuries.
The Senior Arbitrator said that Dr Ellis recorded the history of intermittent neck pain since 1998, which increased over a nine month period in 2011 and noted there had been no other injury to the neck. The Senior Arbitrator observed that the history of symptoms accorded with Dr Matthews’ evidence and the referral for a CT scan in 2011. The Senior Arbitrator further observed that Dr Ellis agreed that the radiological investigations showed no neurological involvement.
The Senior Arbitrator said that surgery was not contemplated at that stage and Dr Sheehy was of the view that there was no need for surgery in 2012. The Senior Arbitrator said that this was not surprising, given that the radiological investigations before 2011 showed no evidence of major pathology and the CT scan dated 20 June 2011 showed disc protrusions at the C5/6 and C6/7 levels without evidence of cord compression. The Senior Arbitrator remarked that it was unclear as to whether Dr Sheehy had the CT scan dated 12 April 2012 available to him, which referred to compression at the C5/6 level and probable contact with the cord at the C6/7 level without compression.
The Senior Arbitrator referred to the respondent’s evidence in 2015 that he had not injured his neck in the 2008 injury and that his symptoms did not change at that time. The Senior Arbitrator concluded that, taking into account the respondent’s unchallenged evidence and the entries in the clinical notes, together with the fact that Dr Worsley foreshadowed a deterioration in the respondent’s condition in 2001, there was little doubt that the respondent had not injured his neck in the incident on 1 July 2008.
The Senior Arbitrator said that the respondent’s main support for the surgery being causally related to the injury in 1998 came from the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan. The Senior Arbitrator noted that Dr Winder was of the view that the respondent’s symptoms were consistent with myelopathy caused by spinal cord compression. The Senior Arbitrator said that the CT scan dated 13 May 2016 reported that the disc protrusion at C6/7 level was in contact with and distorting the spinal cord with possible impingement but no features of myelomalacia. Given the results of the scan, and in the context of the respondent’s complaints, the Senior Arbitrator observed that it was understandable why Dr Winder had recommended surgery. The Senior Arbitrator considered that Dr Winder’s views should carry more weight because, as a treating specialist, he had reviewed the respondent on a number of occasions over several years. The Senior Arbitrator said that Dr Winder was best placed to provide an opinion on causation and the need for surgery, which Dr Winder attributed to the 1998 injury.
The Senior Arbitrator indicated that he was mindful that Dr O’Keefe was originally qualified by the appellant, so that his support for the respondent was significant. The Senior Arbitrator noted that Dr O’Keefe was of the view that the worsening neck symptoms were due to arthritic deterioration following the injury on 28 January 1998, which confirmed the view expressed by Dr Worsley in 2001. Additionally, Dr O’Keefe saw the respondent on a number of occasions and observed the respondent’s worsening condition. He was of the opinion that the respondent’s symptoms were consistent with spinal cord compression and agreed that a two level fusion was required. The Senior Arbitrator observed that Dr O’Keefe rejected the opinion of the AMS because the surgery was intended to address myelopathy.
The Senior Arbitrator referred to the opinion of A/Prof Dan and remarked that A/Prof Dan was a highly regarded neurosurgeon and should carry a significant weight. The Senior Arbitrator said that even though A/Prof Dan believed the respondent injured his neck in the 2008 injury, that conclusion was not supported by the respondent’s evidence or the contemporaneous medical evidence, or the histories provided to the various doctors. The Senior Arbitrator concluded that A/Prof Dan’s conclusion on that point was of little weight. The Senior Arbitrator noted, however, that A/Prof Dan was of the opinion that the respondent’s symptoms were consistent with radiculopathy and spinal cord compression and that a discectomy and fusion was appropriate treatment for the spinal cord compression. The Senior Arbitrator further noted that A/Prof Dan was of the view that the primary dysfunction and need for surgery was attributable to the 1998 injury, despite the accumulative effect of the 2008 injury.
The Senior Arbitrator concluded that on the basis of the respondent’s complaints and their clinical examinations of the respondent, each of the three specialists discussed supported a diagnosis of spinal cord compression, despite the results of the radiological investigations.
The Senior Arbitrator stated that the appellant primarily relied upon the radiological investigations and the evidence of the AMS and Dr Casikar.
The Senior Arbitrator observed that according to the AMS, the respondent did not require surgery because the scans showed no evidence of compression and there was no evidence of radiculopathy or instability. The Senior Arbitrator noted that the AMS did not diagnose cervical facet joint arthritis, which was diagnosed by Dr Worsley. The Senior Arbitrator considered that the AMS’s position was understandable, but that the views were inconsistent with those of Dr Winder and were rejected by Dr O’Keefe and A/Prof Dan. The Senior Arbitrator noted that Dr O’Keefe questioned the AMS’s expertise as an orthopaedic surgeon to comment on a neurological issue, although remarked that that criticism could also be applied to Dr O’Keefe, who was of the same speciality. The Senior Arbitrator concluded that in his opinion, the views of a neurosurgeon would be more persuasive.
The Senior Arbitrator turned to the evidence of Dr Casikar and said that the main problem with Dr Casikar’s opinion was that:
(a) the doctor, who examined the respondent in 2014, only had access to the MRI scan dated 8 July 2012;
(b) the history recorded by the doctor was deficient, and
(c) the conclusion reached by Dr Casikar of the scan on 18 July 2012 was that the scan only showed moderate cervical spondylosis, but the doctor did not mention the disc protrusions and cord contact evident in the CT scan dated 12 April 2012.
The Senior Arbitrator further noted that, despite having said that it was difficult to accept that the need for surgery was due to the injury in 1998, Dr Casikar conceded that he was unable to arrive at a conclusive view until he had seen the more recent scans. The Senior Arbitrator remarked that the concession made Dr Casikar’s first report of limited probative value.
The Senior Arbitrator said that by the time Dr Casikar re-examined the respondent in 2019, the respondent had undergone two cervical fusions that had not relieved his symptoms. The Senior Arbitrator noted that although the 2017 scan was not in evidence, Dr Casikar reviewed the MRI scans from 2016 and 2017 but described only the disc degeneration and the protrusion. The Senior Arbitrator referred to the investigation dated 13 May 2016, which showed that the disc protrusion at C6/7 was in contact with the spinal cord and there was a potential impingement of the C7 nerve root. The Senior Arbitrator observed that Dr Casikar did not comment about the significance of that pathology, but in any event (which the Senior Arbitrator thought was curious) recommended the respondent seek a neurological opinion regarding his symptoms.
The Senior Arbitrator pointed out that Dr Casikar agreed with A/Prof Dan that a disc extrusion could take years to occur, which the Senior Arbitrator said added weight to A/Prof Dan’s opinion, even though Dr Casikar doubted that this occurred in the respondent’s case. The Senior Arbitrator further pointed out that although Dr Casikar disagreed with A/Prof Dan’s views on causation, he conceded that he not seen all of the radiological investigations, which the Senior Arbitrator also considered detracted from Dr Casikar’s opinion. The Senior Arbitrator said that it was apparent that A/Prof Dan had access to a large number of investigations, which also lent weight to his opinion. The Senior Arbitrator referred to Dr Casikar’s suggestions that:
(a) there were other factors responsible for the respondent’s condition;
(b) the condition was a natural progression of degenerative changes, and
(c) the condition did not solely relate to the injury in 1998.
The Senior Arbitrator observed that Dr Casikar did not comment upon the cervical facet joint arthritis. The Arbitrator concluded that Dr Casikar’s evidence was not persuasive.
The Senior Arbitrator reiterated that the respondent had support from Dr Winder, Dr O’Keefe and A/Prof Dan. The Senior Arbitrator referred to the concerns he held about the value of the evidence of Dr Casikar and the AMS. He maintained that Murphy was authority for the proposition that a condition can have many causes. He said that A/Prof Dan addressed the Murphy principle in his last report when he stated that the need for the surgery was due to the 1998 injury even though there was some contribution from the potential neck injury in 2008.
The Senior Arbitrator said that the respondent has tried various forms of treatment over the years and eventually came to surgery to release the spinal cord compression. He noted that the only other potential cause was that flagged by Dr Casikar and the AMS that the symptoms were the natural progression of degenerative changes. The Senior Arbitrator conceded that such cause might be the case but said that the respondent’s case was that the 1998 injury was causative of the need for surgery.
The Senior Arbitrator concluded that, by applying the common sense test of causation in Kooragang, the weight of the evidence from Dr Winder, Dr O’Keefe and A/Prof Dan supported the respondent’s case that his injury had materially contributed to the need for the discectomy and two-level spinal fusion undertaken in 2017. The evidence established that the need for the surgery was to address the effects of the respondent’s work injury. The Senior Arbitrator considered that the respondent’s condition was “beyond conservative forms of treatment, given the nature and level of [his] symptoms and the radiological findings.”[54]
[54] Reasons, [137].
The Senior Arbitrator further concluded that there was no novus actus interveniens, by either a further neck injury in 2008 or the surgery performed by Dr Winder in 2015 and 2017. The Senior Arbitrator observed that the surgery was performed to address the effects of the 1998 injury, and there was no persuasive evidence that the respondent had recovered from the effects of that injury. The Senior Arbitrator concluded that he was satisfied that the surgery was intended and had the potential to alleviate the respondent’s symptoms although it was unfortunate that it had not done so. The Senior Arbitrator, applying Diab, concluded that a poor outcome does not mean that the surgery was not reasonably necessary and that it was an appropriate form of treatment for the management of the respondent’s cervical pathology. The Senior Arbitrator said that there were no other alternate forms of treatment, and there was no evidence that the cost of the surgery was unreasonable. The Senior Arbitrator said that these factors satisfied the relevant factors discussed in Rose and Diab. Accordingly, he was satisfied on the balance of probabilities that the surgery undertaken by Dr Winder on or about 25 August 2018 and the expenses incidental to the surgery were reasonably necessary treatment as a result of the injury sustained on 28 January 1998.
The Senior Arbitrator remitted the claim pursuant to s 66 of the 1987 Act for assessment of the WPI and the assessment under the Table of Disabilities to the Registrar for referral to an AMS. He considered that there was insufficient evidence to be able to deal with the weekly payments claim to be dealt with after the AMS had issued the MAC.
The Certificate of Determination issued on 30 October 2019 records:
“The Commission determines:
1. The applicant sustained injury to his neck arising out of or in the course of his employment with the respondent on 28 January 1998.
2. The applicant’s employment was a substantial contributing factor to his injury.
3. The anterior cervical discectomy and fusion performed by Dr Winder, and associated expenses, was reasonably necessary treatment as a result of the injury arising out of or in the course of his employment with the respondent on 28 January 1998.
The Commission orders:
4. Claim for weekly compensation and medical expenses is adjourned.
5. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment due to injury sustained on 28 January 1998 as follows:
(a)Table of Disabilities:
(i)permanent impairment of the neck;
(ii)loss of use of the right arm at or above the knee including any loss below the elbow, and
(iii)loss of use of the left arm at or above the knee including any loss below the elbow.
(b)Whole Person Impairment for the purpose of a determination as to whether the applicant is a worker with high or highest needs:
(i)cervical spine;
(ii)right upper extremity, and
(iii)left upper extremity.
6. The documents to be reviewed by the Approved Medical Specialist are:
(a)Application to Resolve a Dispute and attachments;
(b)Reply with attached documents;
(c)Application to Admit Late Documents received on 21 October 2019, and
(d)Application to Admit Late Documents received on 21 October 2019.
7. The matter is to be listed for a telephone conference before me once the Medical Assessment Certificate is issued to the parties to deal with the balance of the claim”.
GROUNDS OF APPEAL
The appellant brings four grounds of appeal, alleging the following errors on the part of the Senior Arbitrator:
(a) error of fact in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan. (Ground A);
(b) error of fact by determining that the anterior cervical discectomy and fusion performed by Dr Winder was causally related to the injury on 28 January 1998 (Ground B);
(c) error of fact and/or law by determining surgery was reasonably necessary treatment (Ground C), and
(d) error of fact in determining that the surgery did not cause a break in the chain of the causal connection (Ground D).
LEGISLATION
Section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
…
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
SUBMISSIONS
Ground A: error of fact in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan
The appellant’s submissions
The appellant refers to the Senior Arbitrator’s reliance on the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan as carrying sufficient weight to provide the necessary causal connection between the injury and the need for surgery. The appellant says the Senior Arbitrator erred in accepting those opinions, which reasoned that the need for surgery was to address issues which, on the basis of the objective imaging, did not exist. The appellant submits that the Senior Arbitrator’s finding was ‘glaringly improbable’ and “contrary to compelling available inferences to be drawn from uncontested or objectively verifiable facts.” The appellant relies on the High Court authority of Fox v Percy,[55] in which Gleeson CJ, Gummow and Kirby JJ adopted that phraseology from various previous authorities.
[55] [2003] HCA 22; 214 CLR 118 (Fox v Percy), [29].
The appellant explains that the radiological investigations between 1998 and 2002 make no mention at all about disc protrusions, cervical spine compression or any other spinal cord issue. The appellant identifies those radiological reports as those of radiologist Dr Michael James dated 29 January 1998, Dr Wisal Almosawi dated 26 May 2000 and Dr Alan Gunn dated 1 November 2002.[56]
[56] Reply, pp 41–43.
The appellant submits that it was not until 2011 that the radiological imaging disclosed only small disc protrusions and specifically disavowed large protrusions.[57] The appellant refers to the Senior Arbitrator’s awareness that the diagnosis of cord compression provided by Dr Winder, Dr O’Keefe and A/Prof Dan was inconsistent with the diagnostic tests.
[57] CT scan reports by Dr Shane Labuschagne, radiologist, dated 20 June 2011, 12 April 2012, Reply, pp 44–45.
The appellant quotes from Dr Winder’s reports dated 9 April 2014,[58] and 11 August 2014,[59] in which Dr Winder indicated that:
[58] ARD, p 178.
[59] Reply, p 37.
(a) the respondent showed clinical signs of myelopathy;
(b) he was concerned about compression of the cervical spine;
(c) an MRI scan was required in order to determine whether there was any potential compression of the cervical cord which would mandate treatment;
(d) the resulting MRI scan showed evidence of:
(i)disc protrusions at C5/6 and C6/7;
(ii)spinal cord effacement, and
(iii)a certain signal change within the cord, particularly behind the C6/7 level.
(e) the respondent had symptoms of bilateral pins and needles in the hands and hyper-reflexia, which suggested a degree of cervical myelopathy which was in keeping with the injury sustained, and
(f) the required and only appropriate treatment was decompression of the spinal cord.
The appellant submits that those were the reasons given by Dr Winder as to why the respondent required the treatment. The appellant says, however, that those reasons were inconsistent with the findings made by Dr John Ly, radiologist, in his report of the MRI scan of the cervical, thoracic and lumbar spines dated 24 April 2014,[60] in which Dr Ly reported that the imaging did not reveal any cord compression, myelomalacia or oedema. The appellant contends that Dr Winder recommended the surgery to treat cervical myelopathy despite the MRI report explicitly disavowing the existence of that condition. The appellant says that the entry in the report under the heading “Clinical Notes” indicates that Dr Ly was cognisant of Dr Winder’s opinion that the respondent suffered from myelopathy and that the spinal cord was compressed. The entry reads “Clinically myelopathic. ? Cervical compromise.”[61]
[60] ARD, pp 277–278.
[61] ARD, p 277.
The appellant also refers to the MRI scan of the cervical spine reported by Dr Deepak Prasad, radiologist, 13 May 2016,[62] in which Dr Prasad commented that the cervical cord returned a normal signal , there was no abnormal cord signal seen and there was no imaging of features of myelomalacia. The appellant says those findings are also evidence that the reasons Dr Winder put forward for the surgery did not exist.
[62] ARD, p 260.
The appellant contends that, on the basis of the absence of myelopathy, cord compression or cervical cord signal, the acceptance of Dr Winder’s opinion is of itself demonstrative of error on the part of the Senior Arbitrator. The appellant asserts that, given the reasons for the surgery propounded by Dr Winder were at odds with the radiological investigations, then prima facie, Dr Winder’s opinion should not be accepted as being supportive of a causal connection between the need for surgery and the 1998 injury.
The appellant again refers to the evidence of Dr Prasad that the C5/6 disc protrusion was slightly deforming the cervical spinal cord, there was distortion of the spinal cord by the C6/7 disc protrusion and there was foraminal stenosis with potential impingement of the C7 nerve root. The appellant submits that from that evidence, it was not open to the Senior Arbitrator to conclude that, in the context of the scans showing that the disc protrusions were distorting the cord and the nature of the respondent’s complaints, Dr Winder’s recommendation for surgery was understandable. The appellant also maintains that it was not open to the Senior Arbitrator to conclude that he could afford more weight to the opinion of Dr Winder that the need for surgery resulted from the 1998 injury because Dr Winder had seen the respondent on a regular basis over a number of years. The appellant explains that Dr Winder’s recommendation for surgery was on the basis of the presence of myelopathy and cord compression and not on the basis of the radiological results that disclosed disc protrusions that contacted the cervical cord. The appellant submits that the Senior Arbitrator erred by considering that the radiological results gave support for Dr Winder’s opinion.
The appellant contends that the evidence of Dr Casikar and the AMS is supportive of error on the part of the Senior Arbitrator, particularly that of the AMS, who confirmed that the indications for surgery stipulated by Dr Winder did not exist. The appellant quotes from the AMS’s report where the AMS reasoned that:
(a) the report of Dr Ly did not support Dr Winder’s view that cord compression is occurring;
(b) despite the brisk reflexes, the respondent had no other signs of motor neurone disease;
(c) the MRI report confirmed the AMS’s own assessment that there was no cord compression;
(d) the respondent was suffering from degenerative cervical spondylosis to which the 1998 injury made no contribution, and
(e) Dr Winder’s supposition that there was cord compression present with myelopathy was not supported by the radiological changes.
The appellant maintains that the Senior Arbitrator erred by accepting Dr Winder’s opinion and by finding that the radiological opinion supported Dr Winder’s opinion when the reasons put forward for the surgery were not to address the findings in the radiological investigations.
The appellant submits that the Senior Arbitrator did not merely choose between conclusions equally open to him, where there was no preponderance of view, as discussed by the Full Court of the Federal Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[63] The appellant contends that there was a preponderance of view, that is, the evidence from the objective radiological investigations, to which the Senior Arbitrator failed to give sufficient regard, so that acceptance of and reliance on Dr Winder’s opinion was not open to him. The appellant asserts that the Senior Arbitrator’s conclusion was glaringly improbable and made contrary to the compelling inferences based on uncontested or objectively verifiable facts.
[63] [2001] FCA 1833 (Branir).
The appellant refers to the Senior Arbitrator’s observations that:
(a) Dr O’Keefe also saw the respondent on a number of occasions, over which time the respondent’s condition worsened;
(b) despite the radiological findings, Dr O’Keefe accepted that the respondent’s condition was consistent with spinal cord compression, and
(c) on that basis Dr O’Keefe concluded that the surgery in the form of a two level fusion was warranted.
The appellant also refers to Dr O’Keefe’s statement that the hyper-reflexia in the respondent’s limbs tended to confirm the possibility of spinal cord compression (which the appellant says is “myelomalacia”) which would require surgery in the near future. The appellant submits there is no evidence of cord compression in this case, so that Dr O’Keefe’s premise, which was based on the presence of cord compression, should not have been accepted by the Senior Arbitrator.
The appellant reiterates that there is no evidence of myelomalacia and the radiological evidence unambiguously shows that it was not present. The appellant maintains that the fact that Dr O’Keefe saw the respondent on a number of occasions during which the respondent’s condition worsened should not have mattered in circumstances where the surgery was performed in order to address specific matters. The appellant asserts that the fact that Dr O’Keefe saw the respondent on a number of occasions and observed worsening of the respondent’s condition should not have persuaded the Senior Arbitrator to accept or place weight on Dr O’Keefe’s opinion.
The appellant maintains that the Arbitrator erred by accepting and relying upon Dr O’Keefe’s opinion as being supportive of the respondent’s case and the conclusion that the 1998 injury materially contributed to the need for surgery. The appellant says that the conclusion reached by the Arbitrator was glaringly improbable and/or made contrary to compelling inferences based upon uncontested or objectively verifiable factors.
The appellant refers to the Arbitrator’s observations that A/Prof Dan:
(a) was convinced that the respondent’s symptoms were consistent with radiculopathy and compression of the cervical cord;
(b) said that the discectomy and fusion was appropriate treatment for the nerve cord compression, and
(c) opined that the primary dysfunction and need for surgery was attributable to the 1998 injury, despite the accumulative effect of the alleged 2008 neck injury.
The appellant submits that the acceptance of A/Prof Dan’s opinion, which was contrary to the repeated radiological imaging that did not show cord compression, was glaringly improbable and/or was contrary to the compelling inferences based on uncontested evidence or verifiable facts. The appellant contends that this error was compounded by the Senior Arbitrator discounting Dr Casikar’s opinion in favour of that of A/Prof Dan on the basis that Dr Casikar did not have available to him the entirety of the diagnostic tests. The appellant emphasises that the Senior Arbitrator took into account that A/Prof Dan had access to voluminous diagnostic tests, which added weight to A/Prof Dan’s views. The appellant says that the fact that A/Prof Dan had access to numerous radiological investigations is immaterial when none of those investigations disclosed any cord compression. The appellant asserts that, on the contrary, the Senior Arbitrator ought to have rejected A/Prof Dan’s opinion because of the radiological evidence.
The respondent’s submissions
Before specifically addressing the grounds of appeal, the respondent submits generally that the appeal grounds proceed on an assumption that it is sufficient that the appellant merely disagrees with the Senior Arbitrator’s analysis of the evidence upon which he based his conclusions. The respondent refers to and quotes from the decision of Roche DP in StGeorge Leagues Club Ltd v Wretowska,[64] in which Roche DP cited relevant authorities for the following propositions:
(a) an appeal pursuant to s 352 of the 1998 Act requires the appellant to show that an arbitrator’s decision is affected by error of fact, law or discretion;[65]
(b) in considering the facts and giving weight to the views and advantages of a primary decision maker, if the choices are equally open and there can be no preponderance of view, the conclusion of error cannot necessarily be made where the appeal court merely has a preference for one view of the facts over another (Branir);[66]
(c) where the challenge is to an evaluative judgment, if a statutory right of appeal requires a demonstration that the decision the subject of the appeal is affected by error, the appellate tribunal cannot intervene on the basis that it considers a different outcome is preferable (Northern NSW Local Health Network v Heggie),[67] and
(d) where the relevant statutory test turns on the tribunal being satisfied about a matter involving a broad evaluative judgment, then the degree of restraint that the appeal tribunal should manifest should be that applicable to matters of discretion (Vines v Australian Securities and Investment Commission).[68]
[64] [2013] NSWWCCPD 64 (Wretowska), [145]–[148].
[65] Section 352(5) of the 1998 Act.
[66] Per Allsop J (as his Honour then was), (Drummond and Mansfield JJ agreeing), [28].
[67] [2013] NSWCA 255; 12 DDCR 95, per Sackville AJA (Ward JA agreeing), [71].
[68] [2007] NSWCA 126, per Spigelman CJ, [8].
The respondent submits that it is not available to the appellant to broadly argue on appeal that the evidence before the Senior Arbitrator was against his findings when those findings were contrary to the argument advanced at the arbitration. The respondent says that it is not available to the appellant to argue that the Senior Arbitrator gave undue weight to some of the evidence and too little weight to other evidence to the extent that it led the Senior Arbitrator into error.
Specifically in relation to Ground A of the appeal, the respondent submits that the appellant relies upon its own interpretation of the radiological imaging reports, which he says the respondent argued in detail at the arbitration, and on its own interpretations of the reports and opinions of Dr Winder, Dr Casikar and the AMS. The respondent submits that the Senior Arbitrator specifically considered the radiological evidence and the appellant’s argument about that evidence, as well as closely considered the competing medical opinions. The respondent says that there is no basis to submit that the Senior Arbitrator’s reasons were glaringly improbable, or contrary to compelling inferences or uncontested or objectively verifiable facts, as the appellant submits.
The respondent contends that the Senior Arbitrator made clear and distinct reference to the appellant’s argument at first instance that there were other pathologies identified that were causative of the respondent’s need for surgery. The respondent says that the Senior Arbitrator explained his reasoning for accepting that the 1998 injury was causative of the need for surgery.
The respondent submits that the Senior Arbitrator’s finding that the damage suffered can have multiple causes was consistent with the relevant authorities, citing ACQ Pty Limited v Cook,[69] Sutherland Shire Council v Baltica General Insurance Co Ltd,[70] and AMP Capital Investors Limited v Transport Infrastructure Development Corporation.[71] The respondent asserts that there was clearly the requisite relationship between the 1998 injury and the respondent’s condition and the Senior Arbitrator gave reasons for so finding.
Ground B: error of fact by determining that the anterior cervical discectomy and fusion performed by Dr Winder was causally related to the injury on 28 January 1998
[69] [2009] HCA 28; 237 CLR 656; 258 ALR 58; 83 ALJR 986.
[70] (1996) 39 NSWLR 87; 12 NSWCCR 716.
[71] [2008] NSWCA 325.
The appellant’s submissions
The appellant submits that it does not cavil with the proposition that the 1998 injury does not have the be the sole or substantial cause of the need for the surgery. The respondent says, however, that the three specialists who lent support to the respondent’s case did so for specific reasons. The appellant asserts that once it is established on the basis of uncontested and/or objectively verifiable evidence that those reasons did not exist, there can be no material contribution from the 1998 injury to the need for surgery. The appellant contends that the material contribution of the 1998 injury was reliant upon the presence of cord compression and/or myelopathy, which the appellant submits did not exist. The appellant asserts that in the absence of those conditions, it cannot be determined that the 1998 injury made a material contribution to the need for surgery. Accordingly, the appellant submits, the surgery should not have been determined to be causally related to the 1998 injury. The appellant submits that the Senior Arbitrator was in error, his finding was glaringly improbable and/or made contrary to compelling inferences based on uncontested or objectively verifiable facts.
The respondent’s submissions
The respondent submits that the Senior Arbitrator accepted, on the balance of probabilities, that the respondent had proved his case, which was to the standard identified in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[72] The respondent says that the Senior Arbitrator applied the “common sense” test of causation observed by Kirby P in Kooragang. The respondent submits that similar principles were discussed by the Court of Appeal in State of New South Wales v Bishop,[73] in which Basten JA observed that causation is a factual issue for an arbitrator to determine and depended upon the circumstances of each particular case.
[72] [2008] NSWCA 246.
[73] [2014] NSWCA 354.
The respondent contends that the Senior Arbitrator provided reasons as to why he accepted the respondent’s evidence that there had been a continuation of neck symptoms and referred to the clinical and specialist evidence that supported the respondent’s evidence.
The respondent submits that it was open to the Senior Arbitrator to accept that evidence, relying on Onesteel Reinforcing Pty Ltd v Sutton,[74] in which Basten JA (Allsop P and McColl JA agreeing) observed:
“Rules of the Commission are made by the Minister: Workplace Injury Act, s 364. They do not purport to, and should not be construed as, fettering the broad powers conferred on the Commission by s 354. Rule 15.2 is exhortatory in form and it is doubtful whether it imposes any legal constraint on the powers of the Commission when ‘informing itself on any matter’. The rule certainly could not, and does not purport to, impose rules governing the admissibility of evidence. To do so would be directly inconsistent with the express language of s 354. If the rule does not impose a legal constraint on the power of the Commission, in respect of the inferences the Commission may draw from the material before it, non-compliance with the rule would not constitute an erroneous decision in point of law.”[75]
And:
“Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence.”[76]
[74] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
[75] Sutton, [79].
[76] Sutton, [83].
The respondent also quoted the passage from the judgment of Allsop P (Basten and McColl JJA agreeing) in the same decision, in which his Honour observed:
“Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”[77]
[77] Sutton, [3].
The respondent submits that, consistent with the approach in Sutton, the Senior Arbitrator gave clear reasons, particularly in relation to the evidence of Dr Winder, Dr O’Keefe and A/Prof Dan. The respondent says that the appellant argues that its interpretation of one piece of the evidence should have been preferred over other evidence. The respondent says that the Senior Arbitrator was entitled to weigh up all the evidence and make his decision in accordance with the entirety of the evidence before him, and that such an approach is consistent with the authority of EMI (Australia) Ltd v Bes.[78]
[78] [1970] 2 NSWR 238.
The respondent concludes that the Senior Arbitrator made no error of fact or law.
Ground C: error of fact and/or law by determining surgery was reasonably necessary treatment
The appellant’s submissions
The appellant’s only submission in relation to this ground of appeal is that “as a corollary to the above,”[79] the Senior Arbitrator erred in finding the surgery was reasonably necessary because the alleged indicators for surgery did not exist. The appellant says that the Senior Arbitrator ought to have found that the surgery was inappropriate and therefore not reasonably necessary.
[79] Appellant’s submissions, [53].
The respondent’s submissions
The respondent adopts the submissions he made in respect of the previous grounds of appeal and does not accept that this ground of appeal is a valid ground.
Ground D: error of fact in determining that the surgery did not cause a break in the chain of the causal connection
The appellant’s submissions
The appellant submits that the Senior Arbitrator erred when he failed to determine that the surgery was a novus actus interveniens. The appellant submits that this case was not a case whereby the treatment that the respondent underwent was reasonably necessary and either caused an exacerbation of the respondent’s symptoms or condition or was negligently administered.
The appellant maintains that:
(a) the surgery was not causally related to the injury, and
(b) having regard to the opinions of Dr Casikar and the AMS, there was no clinical support for the surgery.
The appellant refers to the evidence of Dr Casikar who it says was consistently of the opinion that the respondent’s earning capacity, WPI, and loss of efficient use of both arms were related to the surgery performed by Dr Winder and not the 1998 injury.
The appellant reiterates that the Senior Arbitrator ought to have found the surgery to be a novus actus interveniens, there was no reasonable necessity for the surgery, and therefore, the impairment caused by the surgery was not likely to have happened as a result of the 1998 injury.
The respondent’s submissions
As with Ground C, the respondent adopts the submissions he made in respect of the previous grounds of appeal and does not accept that this ground of appeal is a valid ground.
DISCUSSION
There is no issue that the Senior Arbitrator’s findings which are the subject of this appeal are factual findings and the authorities referred to by both parties are applicable. The decision that the Senior Arbitrator was required to make was a decision as to causation, that is, a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts. The appellant specifically frames its submissions about the evidence in the same terms as those adopted by the High Court in Fox v Percy, which is authority for the proposition that findings of fact will not normally be disturbed if they have rational support in the evidence.[80]
[80] Fox v Percy, 125–6.
A useful overview of the principles to be applied in relation to an appeal from a primary judge’s findings of fact was also contained in the judgment of Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic[81] as follows (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[82]
[81] [2008] NSWCA 175; 72 NSWLR 728 (Najdovski).
[82] Najdovski, [22].
Section 352(1) of the 1998 Act allows for an appeal against a decision of an arbitrator to a Presidential member. Section 352(5) of the 1998 Act limits that right of appeal to the establishment of error of fact, law or discretion. Consequently, the application of the above principles needs to be considered in the context of the Commission and its statutory power to intervene.
In determining whether the Senior Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[83] are relevant and have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[84] as follows:
“…
(a) An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c) It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[83] (1966) 39 ALJR 505.
[84] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
The respondent has also referred to and quoted from the subsequent decision of Roche DP in Wretowska in which the Deputy President again reviewed and summarised those principles in the context of the Commission. That summary is reproduced at [117] above.
Applying the above principles, the appellant must show that the Senior Arbitrator overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Senior Arbitrator is so preponderant that it establishes that the Senior Arbitrator’s decision is wrong. The grounds of appeal and the appellant’s submissions disclose that the appellant alleges error on the part of the Senior Arbitrator in his conclusions as to the weight to be afforded to and the acceptance of certain evidence, where the preponderance of the evidence compelled the Senior Arbitrator to arrive at a different conclusion. Each ground of appeal is dealt with in turn.
Ground A: error of fact in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan
The appellant alleges error on the part of the Senior Arbitrator in accepting those opinions as to the need for surgery because the issues that were to be addressed by the surgery did not exist. The appellant says that absence of those issues was shown by the objective radiological imaging, which was compelling evidence. Curiously, the appellant submits that there was an absence of imaging prior to 2011 that disclosed evidence of any significant disc protrusions. The appellant does not explain how that is relevant to the question of the need for surgery, when the surgery was not proposed until 2014, and the CT scan dated 12 April 2012, as well as the subsequent radiological investigations, clearly indicated that the respondent’s cervical pathology included disc protrusions.
The appellant refers to the reasons put forward by Dr Winder in his reports dated 9 April 2014 and 11 August 2014 as to why the proposed surgery was reasonably necessary and says that the reasons were not consistent with the report by Dr Ly of the MRI scan dated 24 April 2014. The appellant contends that the imaging did not reveal any cord compression, myelomalacia or oedema.
The Senior Arbitrator noted that the report of that scan confirmed that there was a disc protrusion at C5/6 level which was in contact with the spinal cord and that there was degenerative spondylosis at C5/6 and again at C6/7, where there was also osteophyte formation, but that there was no cord compression.[85]
[85] Reasons, [69].
The AMS quoted from Dr Ly’s report on the MRI scan as follows:
“In the cervical spine there is straightening of the cervical lordosis, the cervical spine is anatomic. Cervical cord is normal from the foramen on magnum to C7. No cord compression, syrinx or myelomalacia is seen. There is no Chiari malformation … No joint effusion or synovitis or marrow oedema is seen”.[86]
[86] MAC, p 8.
The AMS added that in relation to each disc level, Dr Ly relevantly reported that at C5/6 level, the disc bulge was in contact with the annular surface of the cord without flattening, mass effect or oedema of the cord. This was causing narrowing in the spinal canal with a diameter of 8mm. At the C6/7 level, an osteophyte was in contact with the surface of the cord but did not cause cord compression.
Dr Winder also reviewed and took into account the results of that MRI scan in his report dated 24 April 2014.[87] Dr Winder noted:
“His cervical spine imaging shows that he does have two disc protrusions which are more paracentrally placed on the left-hand side both C5/6 and C6/7. There is still a cuff of CSF surrounding the cord but I suspect this is likely to be the cause of his pins and needles in the hands and also the hyper reflexive changes which are present, as his canal dimensions are reduced 8mm at the levels of his disc protrusions.”
[87] ARD, p 180.
In the report dated 24 April 2014, Dr Winder did not recommend surgery in respect of the cervical spine. His recommendation for surgery in that report related to the lumbar spine. At that stage, Dr Winder recommended conservative treatment for the cervical condition.
The recommendation for surgery was made in the report dated 11 August 2014.[88] Dr Winder did not refer to cervical cord compression as being a feature. Dr Winder’s reasons for the proposed surgery were:
[88] ARD, p 182.
(a) the respondent showed clinical signs of myelopathy;
(b) he was concerned about compression of the cervical spine;
(c) an MRI scan was required in order to determine whether there was any potential compression of the cervical cord which would mandate treatment;
(d) the resulting MRI scan showed evidence of:
(i)disc protrusions at C5/6 and C6/7;
(ii)spinal cord effacement, and
(iii)a certain signal change within the cord, particularly behind the C6/7 level.
(e) the respondent had symptoms of bilateral pins and needles in the hands and hyper-reflexia, which suggested a degree of cervical myelopathy which was in keeping with the injury sustained, and
(f) the required and only appropriate treatment was decompression of the spinal cord.
Nothing in those reasons is inconsistent with the MRI scan results on 24 April 2014. Dr Winder recorded the respondent’s worsening symptoms which in his expert opinion, were consistent with cervical myelopathy and which were not ameliorated by conservative treatment. Dr Winder described spinal cord effacement and not spinal cord compression. The cord effacement was clearly apparent on the radiological finding and the cervical cord was 8 mm narrower at the levels of the protrusions.
In his consideration of appropriate treatment, Dr Winder was entitled to have regard to the symptoms and signs as well as the radiological evidence.
The appellant submits that the MRI scan dated 24 April 2014 explicitly disavowed the existence of myelopathy. On a plain reading of Dr Ly’s report, such a submission cannot be advanced. The presence of cord compression, myelomalacia (not myelopathy) and oedema were said to be “not revealed” which in a clinical setting cannot be taken to “explicitly exclude” myelopathy. In any event, Dr Winder was of the view that the surgery was required to address the effacement of the cord seen on the radiological evidence, and to address the respondent’s symptoms, which were suggestive of spinal cord compression.
A/Prof Dan opined that the respondent’s cervical pain, large disc protrusion, upper limb symptoms and hyperflexia reflected a spinal cord dysfunction.[89] A/Prof Dan’s view was that at the time the respondent underwent surgery, the respondent had a very large cervical disc lesion which was compressing the cervical cord and that removal of the sequestrated disc and spinal fusion was the correct approach.[90] The surgery was performed on 29 May 2017.
[89] Report dated 8 April 2019, p 4, ARD, p 204.
[90] Report dated 8 April 2019, p 3, ARD, p 203.
An MRI scan of the respondent’s cervical spine was conducted on 13 May 2016. Dr Prasad reported that the scan disclosed a disc bulge which contacted and slightly deformed the C5/6 level and a disc protrusion at the C6/7 level which contacted and distorted the cervical cord with potential impingement of the C7 nerve. Dr Prasad concluded that there were degenerative changes at the C5/6 and C6/7 levels, the cervical cord returned normal signal and there were no imaging features of myelomalacia.[91]
[91] ARD, p 260.
A/Prof Dan reviewed the disc of the MRI, rather than simply relying on the report. A/Prof Dan also reviewed the disc of an MRI scan dated 11 May 2017, which he said showed the sequestrated disc fragment at C6/7 and a smaller lesion at C5/6.[92] That scan was not in evidence before the Senior Arbitrator. A/Prof Dan’s opinion was clearly consistent with the findings on MRI scan dated 12 May 2016 and in the absence of evidence of the MRI scan dated 11 May 2017, it is not open to the appellant to argue that the reasons put forward for the surgery had no basis because the radiological evidence was at odds with those reasons.
[92] Report dated 8 April 2019, p 2, ARD, p 202.
The appellant contends that the evidence of Dr Casikar and the AMS is supportive of error on the part of the Senior Arbitrator. The appellant relies on the AMS’s reasons, which were that:
(a) Dr Winder’s opinion that there was cord compression and myelopathy present was inconsistent with the scan dated 24 April 2014, which confirmed the AMS’s view that there was no such compression;
(b) other than the brisk reflexes, there were no signs of motor neurone disease, and
(c) the AMS diagnosed degenerative cervical spondylosis, which was not related to the injury in 1998.
The Senior Arbitrator preferred the evidence of Dr Winder, Dr O’Keefe and A/Prof Dan over that of the AMS, noting the AMS’s views were inconsistent with Dr Winder, the treating surgeon, and were rejected by both Dr O’Keefe and A/Prof Dan.
The reasons proffered by Dr O’Keefe for rejecting the opinion of the AMS were considered by the Senior Arbitrator. Those reasons were that the AMS said the surgery was not necessary because the appellant did not have radiculopathy or instability of the spine, which was not the purpose of the surgery. Further, the respondent’s condition was a neurological issue and not one for which an orthopaedic surgeon was properly qualified. Dr Dan also criticised the view of the AMS because the purpose of the surgery was to address a very large disc protrusion and the spinal cord compression evident at the time of the surgery and not radicular symptoms.
The Senior Arbitrator accepted those logical and probative criticisms of the opinion of the AMS. It was open to him to do so and it was open to him to therefore prefer the evidence of Dr Winder, Dr O’Keefe and A/Prof Dan over the opinion of the AMS.
The appellant contends that the Senior Arbitrator erred by discounting Dr Casikar’s opinion on the basis that Dr Casikar did not have all of the available imaging before him. The Senior Arbitrator’s rejection of Dr Casikar’s opinion was not so limited. In context, the Senior Arbitrator noted that Dr Casikar had himself qualified his opinion on the basis that he only had access to the scan dated 18 July 2012. The Senior Arbitrator also took into account the deficient history taken by Dr Casikar. Additionally, he noted the conclusion reached by Dr Casikar was based only on the scan dated 18 July 2012, reported as only showing cervical spondylosis, whereas the earlier CT scan dated 12 April 2012 reported disc protrusions and evidence of cord contact. He further noted that Dr Casikar recommended the respondent seek neurological review.
Those were all logical and proper reasons for discounting the opinion of Dr Casikar.
The appellant is critical of the Senior Arbitrator for affording the opinion of Dr Winder greater weight because Dr Winder was the respondent’s treating surgeon and had the opportunity to review the respondent on a number of occasions. It is a matter of common sense that a treating specialist who reviewed, investigated and treated the respondent’s condition over a number of years would be better placed to provide an opinion than a surgeon who did not have access to the whole of the history or investigations and did not have the opportunity to observe the respondent’s increasing symptoms.
The appellant also submits that the Senior Arbitrator had no basis for accepting Dr O’Keefe’s opinion. The Senior Arbitrator considered that Dr O’Keefe’s support for the respondent was significant because Dr O’Keefe had originally expressed a view supportive of the respondent in the context of being engaged by the appellant to provide an opinion. The Senior Arbitrator also considered that because Dr O’Keefe had examined the respondent on several occasions, he had a better opportunity to assess and report on the respondent’s condition. The Senior Arbitrator noted that Dr O’Keefe’s opinion was consistent with that of Dr Winder and A/Prof Dan. However, although accepting Dr O’Keefe’s opinion as being consistent with the respondent’s case, the Senior Arbitrator concluded that opinions of the neurosurgeons were more persuasive. At the end of the day, therefore, Dr O’Keefe’s evidence was not determinative.
The appellant submits that the Senior Arbitrator did not merely choose between conclusions equally open to him, in circumstances where there was no preponderant view, as discussed by the Full Court in Branir. The appellant submits that there was a “preponderant view” which was the objective radiological evidence that contradicted Dr Winder’s opinion and of which the Senior Arbitrator failed to give sufficient regard.
The appellant asserts that there was no evidence of myelomalacia present in the radiological investigations and in fact in was excluded. Neither Dr Winder nor A/Prof Dan diagnosed myelomalacia. Dr Winder diagnosed myelopathy. It appears that the appellant has confused the two conditions, which does not assist the appellant’s case.
I have discussed the radiological evidence in the context of the evidence from Dr Winder and A/Prof Dan. There is clearly no conflict upon which a supposition could be based that the radiological evidence was so preponderant that it ought to be afforded greater weight than that of the medical experts accepted by the Senior Arbitrator. The appellant puts no other convincing basis upon which error of the kind required to disturb the Senior Arbitrator’s acceptance of the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan could be established. It cannot be said that the Senior Arbitrator overlooked material facts or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Senior Arbitrator is so preponderant that it establishes that the Senior Arbitrator is wrong.[93]
[93] Branir.
Ground A of the appeal therefore fails.
Ground B: error of fact by determining that the anterior cervical discectomy and fusion performed by Dr Winder was causally related to the injury on 28 January 1998
The appellant concedes that the 1998 injury does not have to be the sole or the substantial cause of the need for surgery.
In support of this ground of appeal, the appellant is reliant upon its assertions that Dr Winder, Dr O’Keefe and A/Prof Dan gave specific reasons supporting the need for surgery, but those specific reasons did not exist. The appellant says that once it is established that those reasons did not exist, there could be no material contribution from the 1998 injury to the need for surgery. The appellant contends that the connection between the injury and the surgery was reliant upon the presence of cord compression or myelopathy.
As the respondent submits, the Senior Arbitrator provided reasons as to why he was satisfied on the basis of the respondent’s evidence that there was a continuation of the respondent’s neck symptoms from the 1998 injury. That evidence was that:
(a) the respondent maintained throughout that his symptoms persisted ever since the 1998 injury;
(b) the entries in the clinical notes supported that to be the case, as did the histories provided to A/Prof Siddall, Dr Mutton and Dr Ellis;
(c) surgery was not suggested by Dr Sheehy in 2012, which was understandable in the context of the radiological investigations up to 2011;
(d) there was no injury to the neck in the 2008 incident;
(e) in 2001, Dr Worsley foreshadowed a deterioration in the respondent’s condition, and
(f) Dr Winder, Dr O’Keefe and A/Prof Dan all considered that the respondent’s dysfunction and need for surgery was attributable to the 1998 injury.
The Senior Arbitrator considered and correctly applied the test set out in Murphy.
The appellant’s submission in support of this ground do not address any of the evidence relied upon by the Senior Arbitrator that the 1998 injury materially contributed to the need for surgery. The appellant’s submissions appear to be arguing about the reasonable necessity of the surgery, rather than the relevance of the 1998 injury to the need for surgery.
I have already discussed the reasons relied upon by the respondent put forward by the various specialists about the need for the surgery and accepted by the Senior Arbitrator. For the reasons set out in respect of Ground A of the appeal, I formed the view that it was open to the Senior Arbitrator to accept the views of those specialists. The surgery was intended to address the respondent’s symptoms arising from the pathology identified in the radiological evidence.
I do not accept that the reasons for the surgery did not exist. The appellant makes no other submission to support this ground of appeal and consequently, the ground of appeal fails.
Ground C: error of fact and/or law by determining that the anterior cervical discectomy and fusion performed by Dr Winder was reasonably necessary
Again, the only submission made by the appellant is that the Senior Arbitrator erred in finding that the surgery was reasonably necessary because the indicators for surgery did not exist. I have already determined that the reasons for surgery put forward by Dr Winder and A/Prof Dan were consistent with the clinical signs and symptoms recorded and the radiological evidence that was available to each of those specialists. I have already determined that the reasons for surgery were validly consistent with the radiological evidence.
Once more, the appellant makes no submission which identifies error on the part of the Senior Arbitrator. The Senior Arbitrator correctly applied the authorities of Diab and provided cogent reasons, supported by the evidence of Dr Winder, Dr O’Keefe and in particular A/Prof Dan (who addressed each of the matters required by Diab), for finding that the surgery was reasonably necessary.
Consequently, this ground of appeal also fails.
Ground D: error of fact in determining that the surgery did not cause a break in the chain of the causal connection
The appellant submits that the Senior Arbitrator erred by failing to determine that the surgery was a novus actus interveniens. The appellant contends that this case was not a case where the surgery was reasonably necessary and exacerbated the respondent’s symptoms or was administered negligently. The appellant says that the surgery was not causally related to the injury and according to the opinions of Dr Casikar and the AMS, there was no clinical support for the surgery. The appellant submits that Dr Casikar was consistently of the opinion that the respondent’s reduced earning capacity and impairments related to the surgery performed by Dr Winder and not the 1998 injury. The appellant maintains that the Senior Arbitrator ought to have found that the surgery constituted a new intervening act, was not reasonably necessary and not likely to have resulted from the 1998 injury.
This ground of appeal and the submissions in support disclose that the reason the appellant gives for the surgery to have constituted a novus actus interveniens is that the surgery was not reasonably necessary, which was the subject of Ground C of the appeal, and did not result from the 1998 injury (Ground B).
The appellant has not established error on the part of the Senior Arbitrator under either of those grounds. The Senior Arbitrator was not in error in accepting the opinions of Dr Winder, Dr O’Keefe and A/Prof Dan over the opinions of the AMS and Dr Casikar. Consequently, there is no evidence to support the appellant’s claim that the respondent’s loss of earning capacity and impairments following the surgery resulted from the surgery which was independent of the 1998 injury and constituted a new intervening incident that severed the causal chain of connection.
It follows that Ground D of the appeal also fails.
CONCLUSION
The appellant has failed to establish error of the kind required to disturb the Senior Arbitrator’s decision. The Senior Arbitrator’s Certificate of Determination is therefore confirmed.
DECISION
The Senior Arbitrator’s Certificate of Determination dated 30 October 2019 is confirmed.
The matter is remitted to the Senior Arbitrator for determination of the remaining issues
Elizabeth Wood
DEPUTY PRESIDENT
7 May 2020
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