Gardener v Sauer's Bakehouse Pty Ltd - [2018] NSWWCCPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Gardener v Sauer’s Bakehouse Pty Ltd [2018] NSWWCCPD 49
APPELLANT:	Anthony Gardener
RESPONDENT:	Sauer’s Bakehouse Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-2404/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	28 June 2018
DATE OF APPEAL DECISION:	14 November 2018
SUBJECT MATTER OF DECISION:	Challenge to an arbitrator’s factual findings; application of the principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Law Partners Personal Injury Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 28 June 2018 is confirmed.

INTRODUCTION AND BACKGROUND

Anthony Gardener (the appellant) was employed by Sauer’s Bakehouse Pty Ltd (the respondent) as a co-ordination officer/manager, when he fell from a ladder on 29 July 2016. The respondent accepted liability for injury to the lumbar spine in the incident. Professor van Gelder performed a right L4/5 discectomy on 3 April 2017, and a right L4/5 decompression and discectomy on 20 September 2017.[1] An MRI scan on 12 August 2017 demonstrated bilateral femoral head avascular necrosis. Dr Chin, orthopaedic surgeon, sought approval from the respondent’s insurer to carry out a right total hip replacement. The insurer declined liability for injury to the hips in a s 74 notice dated 6 December 2017. It denied that the appellant injured his hips on 29 July 2016, and that the treatment was reasonably necessary as a result of the workplace injury.[2] This appeal is against an award entered by the Arbitrator in favour of the respondent, on the basis that the condition of the hips did not result from the incident on 29 July 2016. The appeal fails for reasons which follow.
[1] Professor van Gelder’s reports, 31 August 2017 and 25 September 2017, at Application to Resolve a Dispute (ARD), pp 22 and 23.
[2] ARD, p 217.

THE ARBITRAL PROCEEDINGS AND DECISION

The Application to Resolve a Dispute was registered on 10 May 2018. The alleged injury was the fall on 29 July 2016. The claim was one pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), involving $3,546.25 for past treatment, and $40,000 (pursuant to s 60(5) of the 1987 Act) for future treatment for a “total right hip replacement recommended by treating specialist Dr Chin”.
The matter was listed for arbitration hearing on 20 June 2018. Both parties were represented by counsel, Mr Morgan for the appellant and Mr Halligan for the respondent. There were no applications to adduce oral evidence. Both counsel made submissions, and the Arbitrator reserved his decision. The Arbitrator delivered his decision orally on 26 June 2018. The Certificate of Determination dated 28 June 2018 recorded that “[t]here be an award for the respondent”. The Arbitrator’s reasons were transcribed.[3]
[3] Transcript 26.6.18 (T2).
The Arbitrator briefly described the issues. He noted it was “common ground that the proposed surgery of a right hip replacement is reasonably necessary”. He said the respondent argued “there was no causal nexus between the condition for which the surgery had been proposed and the [appellant’s] injury”.[4]
[4] T2 1.26–33.
The Arbitrator summarised the appellant’s evidence of the fall, and his treatment by his general practitioner Dr Khan, and by Professor van Gelder, who carried out the surgical procedures to the appellant’s lower back.[5] The Arbitrator summarised the views on causation of Dr Chin, Dr Habib (qualified by the appellant’s solicitors) and Dr Powell (qualified by the respondent’s solicitors).[6] He referred to Woolworths Limited v Christopher-Coates,[7] a decision of the President Keating DCJ dealing with principles of causation. He referred to Murray v Shillingsworth[8] and Seltsam Pty Limited v McGuiness,[9] both of which were referred to in Christopher-Coates.
[5] T2 2.8–4.23.
[6] T2 4.25–13.33.
[7] [2014] NSWWCCPD 14; 15 DDCR 291 (Christopher-Coates).
[8] [2006] NSWCA 367; 4 DDCR 313.
[9] [2000] NSWCA 29; 49 NSWLR 262.
The Arbitrator summarised the submissions. The appellant referred to the authorities listed in the preceding paragraph. The appellant submitted that Dr Powell was “equivocal” in his opinion. He conceded it was possible that avascular necrosis could take up to a year to develop following trauma, and said there was “no easy answer” to the question of whether there was “a traumatic component” to the development of the appellant’s bilateral avascular necrosis. The appellant submitted Dr Powell failed to note that he (the appellant) experienced pain in his right hip at the time of the fall. The appellant relied on the opinion of Dr Habib. Dr Habib was inclined to attach significance to the fall, as the appellant’s right hip (he landed on his right foot) was the first to become symptomatic.
Mr Morgan submitted the first reference to right hip pain in the medical evidence was in the MRI scan report dated 12 August 2017, which had a history of four months of pain. Mr Morgan submitted the right hip complaints had been “subsumed by the co-morbid back condition”. The appellant stated that he consulted Dr Khan within three weeks of the fall, and developed foot drop prior to admission to Liverpool Hospital in March 2017.[10]
[10] T2 15.28–16.32.
Mr Halligan submitted, for the respondent, that the appellant had failed to discharge his onus of proving a causal connection between the fall and the condition of bilateral avascular necrosis. Mr Halligan submitted the “most authoritative opinion came from Dr Chin”, whose report dated 30 October 2017 left “some considerable doubt as to the causative link”. Dr Habib’s opinion, the respondent submitted, was “hardly definitive”. Mr Halligan relied on some authorities on causation under the Commonwealth compensation legislation. The totality of Dr Powell’s evidence would lead to the conclusion that a “connection between the fall and the onset of the bilateral avascular necrosis in the circumstances was impossible”.[11]
[11] T2 17.1–33.
The Arbitrator analysed the medical evidence dealing with bilateral avascular necrosis. Drs Chin, Habib and Powell all “acknowledged that the cause is often unknown or idiopathic”. Drs Powell and Chin thought a causal connection with the fall was “possible”, but “not likely”. Consistent with the authorities referred to in Christopher-Coates, “such opinions are not fatal to [the appellant’s] case. But it is still incumbent upon a claimant to prove his case by the other evidence that he adduces”. The Arbitrator said that he accepted the fall was “responsible for the [appellant’s] ongoing back complaints”. He said of the avascular necrosis that there was “an absence of evidence to establish the necessary causal link to the onset of this ‘disease’ condition, if I can call it that, being caused by the fall.”[12]
[12] T2 18.31–19.28.
The Arbitrator referred to “inconsistencies” in the appellant’s evidence. The appellant said he reported the injury on the day it happened, but “no report of injury form was lodged”. Usually this would be “unremarkable”, but “there is no contemporaneous evidence at all to support [the appellant’s] assertions that he had injured his right hip in the fall”. He said he consulted Dr Khan on the day following, 30 July 2016, but “[n]o such consultation was recorded in the clinical notes before me and no explanation was given as to its absence”. The appellant “said he consulted Dr Khan about three weeks after the accident as the pain had become unbearable in his right hip, amongst other places”. The Arbitrator said that “[a]gain, no such consultation was recorded in the clinical notes”. Dr Habib took a similar history of a consultation on 30 July 2016, but “[t]here is just no entry in the clinical notes”. The clinical notes from Dr Khan’s practice showed the appellant “in fact, did not consult his general practitioners at all until 17 October 2016”, when Dr Karim recorded “Low back pain for two weeks, pain radiating to the left foot and tingling sensation”. The visit prior to that was on 18 May 2016, well prior to the fall.[13]
[13] T2 19.30–20.29.
The Arbitrator described it as “quite remarkable” that after such a traumatic fall the appellant “neither took himself to hospital nor to a GP until almost three months after the event”. When he did, on 17 October 2016, he “did not mention the fall but simply complained about only two weeks of back pain which would date its onset to early October”. The appellant’s counsel submitted that the appellant was “a stoic individual … but it does not explain the inconsistencies”. The Arbitrator noted the entry in the clinical notes on 17 October 2016 had “no reference to [the appellant’s] hips”. The first mention of the hips was in the MRI scan report dated 12 August 2017, when “the radiologist noted clinical indications of four months’ pain and diagnosed bilateral avascular necrosis”. The appellant has complained of injuring his right hip “[s]ince that time”.[14]
[14] T2 20.31–21.18.
The Arbitrator said there was no contemporaneous evidence that the right hip was involved, between 29 July 2016 (the date of the fall) and 12 August 2017 (when the hip condition was diagnosed on the MRI). This raised the possibility that the appellant “may have, quite unwittingly, reconstructed actual events and genuinely made assertions that have not been established by the contemporaneous evidence”.[15] He said:
“[The appellant] bases his case upon what he remembered when he gave his statement in March of this year. It is dangerous to accept that when there is no support when you would expect there to be support.
Mr Morgan submitted that maybe it was the treatment for the back that masked the true nature of the hip pathology, but that long gap and the inconsistencies to which I have referred I’m afraid means the [appellant] has failed to establish his onus and, accordingly, for the above reasons, there will be an award in favour of the respondent.”[16]
[15] T2 21.20–33.
[16] T2 21.30–22.7.

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

GROUNDS OF APPEAL

The appellant raises the following grounds:
(a)    Taking irrelevant considerations into account. (Ground No 1)
(b)    Failing to take relevant evidence into account. (Ground No 2)
(c)    Misunderstanding the medical evidence. (Ground No 3)
(d)    Misconceiving the matter before him, in considering it was to be resolved by record of contemporaneous complaint. (Ground No 4)
(e) Failing to address the fact that the onset of right hip pain occurred before any left hip pain. (Ground No 5)
(f)    Failing to consider the significance of symptoms recorded by treating doctors prior to the diagnosis of avascular necrosis. (Ground No 6)
The appellant’s solicitors forwarded an email to the Commission on 4 September 2018, with a copy to the respondent’s solicitors, advising that the appellant had “recently undergone bilateral total hip replacement surgery”. The email stated that “[d]uring the surgical procedure, it was discovered that the [appellant’s] right hip was fractured”. The email said “we intend to rely upon further evidence in respect of the causation issue regarding the fracture”. It said that the solicitors were “in the process of obtaining this evidence as quickly as possible”. The Commission wrote to the appellant’s solicitors on 29 October 2018 advising that the appeal was ready for allocation, and enquiring whether it was intended that an application be made to admit fresh evidence. The appellant’s solicitors replied on the same date, saying that they did “not wish to admit fresh evidence”.

THE NATURE OF THE APPEAL

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[17] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[18] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[19]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(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’.”[20]
[17] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[18] (1966) 39 ALJR 505, 506.
[19] [1996] HCA 140; 140 ALR 227.
[20] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[21] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[22]
“… 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.”[23]
[21] [2017] NSWWCCPD 5, [67].
[22] [2001] FCA 1833, [28].
[23] Raulston, [20].
In Northern NSW Local Health Network v Heggie[24] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[25]
[24] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[25] Heggie, [72].
The grounds of appeal raise factual issues, going to the Arbitrator’s analysis of the medical and lay evidence, relevant to the issue of whether the condition of avascular necrosis resulted from the workplace injury on 29 July 2016.

GROUND NO 1

Taking irrelevant considerations into account.

Appellant’s submissions

The appellant submits the Arbitrator “placed significant weight upon what he called inconsistencies. In fact most of the matters referred to were not inconsistencies.” The Arbitrator said “no report of injury form was lodged”.[26] The appellant submits there “was no dispute the incident happened and caused a significant back injury”. The appellant’s statement said that he reported the incident to his supervisor, and an “incident report was completed and signed”. The appellant submits the Arbitrator erred when he said that an incident report was not lodged.[27]
[26] T2 19.32–33.
[27] Appellant’s submissions, [3]–[4].
The Arbitrator said there was no reference to the appellant attending his general practitioner, until he saw Dr Karim on 17 October 2016.[28] The Arbitrator said it was “quite remarkable after such a traumatic fall that [the appellant] neither took himself to hospital nor to a GP until almost three months after the event”.[29] The appellant submits:
“The Arbitrator’s comments amount to a repudiation of a matter that was not in issue before him. The Arbitrator seems to be suggesting that he did not accept the occurrence of the fall when that was not in issue. To the extent that the Arbitrator was deciding a matter that was not in issue he was making an error. The Arbitrator was denying the injury to the right hip on the basis he did not accept the incident happened and resulted in a serious back injury. This becomes more obvious when coupled with the remarks about the report of injury.”[30]
[28] T2 20.2–29.
[29] T2 20.31–33.
[30] Appellant’s submissions, [5].
The appellant also refers to a “minor matter”; the Arbitrator described the “first suggestion of an onset of problems in the hips”[31] as the MRI scan of the right hip on 12 August 2017. The appellant submits the scan followed a referral from Dr Khan, who recorded hip problems on 9 August 2017.[32]
[31] T2 21.10–12.
[32] Appellant’s submissions, [6].

Respondent’s submissions

The respondent accepts there was “never any dispute that the accident occurred or that the appellant injured his back or that it was reported”. The respondent submits what was “remarkable was that the right hip was not the subject of complaint until 9 August 2017”. The Arbitrator’s observations about this were “legitimate”. It submits references to consultations with the general practitioner after the accident “have no relevance to the claim for the hip injury without specific implications that the hip was traumatised”.[33]
[33] Respondent’s submissions, [2.8(i)–(ii)].

Consideration

In his reasons, the Arbitrator said:
“There are inconsistencies in Mr Gardener’s evidence which give me some concern. He said that he reported the injury on 29 July 2016 but no report of injury form was lodged. Usually such an absence would be unremarkable but there is no contemporaneous evidence at all to support Mr Gardener’s assertions that he had injured his right hip in the fall. Mr Gardener said he consulted Dr Khan on 30 July 2016, ie, the day after the fall, and that he complained about lower back pain radiating through his right hip and ankle. No such consultation was recorded in the clinical notes before me and no explanation was given as to its absence.
Mr Gardener said he consulted Dr Khan about three weeks after the accident as the pain had become unbearable in his right hip, amongst other places. Again, no such consultation was recorded in the clinical notes before me and no explanation was given as to its absence. Dr Habib took a history that Mr Gardener consulted his family doctor on 30 July 2016 and, again, the conservative treatment of rest and analgesics was prescribed. There is just no entry in the clinical notes lodged from Dr Khan’s practice and no explanation has been given as to its absence.
…
It is quite remarkable after such a traumatic fall that Mr Gardener neither took himself to hospital nor to a GP until almost three months after the event. It is also remarkable that when he saw Dr Karim on 17 October he did not mention the fall but simply complained about only two weeks of back pain, which would date its onset to early October. Mr Morgan submitted that the explanation [for] Mr Gardener’s reticence was that he was a stoic individual and that may indeed be so but it does not explain the inconsistencies.”[34] (emphasis added)
[34] T2 19.30–21.6.

The appellant attacks the Arbitrator’s reasons as “denying the injury to the right hip on the basis that he did not accept the incident happened and resulted in a serious back injury”. The appellant refers to the evidence in the appellant’s statement, that the incident was reported to his supervisor, Alex Carson, and “an incident report was completed and signed.[35]
[35] Appellant’s submissions, [4]–[5].
The appellant’s statement said that the boxes he was seeking to access were on top of the racking system, “around 6 metres high”, and he “fell from a height of around 5 metres to the concrete ground”.[36] There was medical evidence before the Arbitrator that such a fall was “sufficient to cause instant death”, and that most survivors would have “at least one major bone fracture”.[37] There was a basis in the medical evidence for the Arbitrator’s puzzlement regarding the outcome of the fall. When the reasons are read as a whole, as they should be,[38] there was not a failure by the Arbitrator to accept that the injury happened. The Arbitrator’s reasons, at the outset, acknowledged the respondent conceded that injury occurred on 29 July 2016, although the respondent denied that the effects of injury included “bilateral avascular necrosis”.[39] In his analysis of the evidence the Arbitrator said “I accept that the shock of the fall was responsible for Mr Gardener’s ongoing back complaints”.[40]
[36] Appellant’s statement dated 12 March 2018, [12], ARD, p 210.
[37] Dr Powell’s report 20 November 2017, Reply, p 13.
[38] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[39] T2 1.28–30.
[40] T2 19.23–25.
The Arbitrator’s remarks about the absence of a report of injury form, and the absence of records of consultations with the general practitioner in the weeks following the fall, also should be read in context. The focus of the remarks is not on whether the incident occurred, which was common ground, but on whether the appellant made complaints of right hip symptoms, around the time of the incident. This is apparent from that part of the passage set out at [27] above, which is highlighted. The Arbitrator correctly noted that the appellant’s statement said he saw Dr Khan on 30 July 2016 (the day following the incident) and in August 2016 (about three weeks after the incident) for complaints which included the right hip.[41] The Arbitrator correctly noted that the clinical material in evidence (an apparently continuous record put on as part of the appellant’s case) did not include notes from those consultations. The Arbitrator noted that the first clinical note that post-dated the fall (17 October 2016) contained no reference to the hips. These were relevant matters for the Arbitrator to consider, in dealing with the issue of whether the right hip was injured in the incident.
[41] Appellant’s statement dated 12 March 2018, [15]–[16], in ARD, p 211, referred to T2 20.2–29.
The appellant also asserts error, in the Arbitrator’s reference to the first chronicled report of “problems in the hips” being in the MRI scan report on 12 August 2017, where there was a history of four months’ hip pain. The appellant submits there was an earlier reference in Dr Khan’s notes on 9 August 2017, when the doctor referred the appellant for the MRI scan. It should be noted that the date of 12 August 2017 was consistent with submissions on the appellant’s behalf made at the arbitration hearing.[42] The appellant’s submission that the first chronicled complaint of hip pain was on 9 August 2017 is correct, so the Arbitrator’s reference to 12 August 2017 involved error. It was of a trivial nature and could not have affected the result.
[42] Transcript 20.6.18 23.1–6.
The above matters, the subject of attack by the appellant in Ground No 1, were relevant to the central issue in the case, being whether there was a causal connection between the conceded fall on 29 July 2016, and the condition of bilateral avascular necrosis that was diagnosed in August 2017. The appellant, elsewhere, argues that the issue of injury to the right hip is not to be resolved by a consideration of whether there was a contemporaneous record of right hip complaint (see Ground No 4). That is a different argument.
Ground No 1 is rejected.

GROUND NO 2

Failing to take relevant evidence into account.

Appellant’s submissions

The appellant submits that Dr Khan’s certificate dated 16 March 2018 certified that “the work related injury included bilateral hips”. This is submitted to be “of great importance” as it was Dr Khan who saw the appellant “after the incident”, and it was Dr Khan “who first referred the hips for investigation”. The appellant submits the Arbitrator failed to consider this evidence.[43]
[43] Appellant’s submissions, [7].

Respondent’s submissions

The respondent submits there was “no narrative report” available from Dr Khan, to know what his opinion was regarding the hip injury. The respondent submits Dr Khan’s opinion “in all likelihood” was heavily influenced by the opinion of Dr Habib. It submits that “importantly”, the notes from the general practice reveal no mention of hip pain between 18 May 2016 and 17 October 2016.

Consideration

Dr Khan’s certificate dated 16 March 2018[44] contains the following “[d]iagnosis of work related injury/disease” (with a stated injury date of 29 July 2016):
“Chronic Lower Backpain – Discopathy/Radiculopathy – Discetomy [sic]/Bilateral Hip Injury”.
[44] ARD, p 141.
The doctor marked a box indicating “Injury/disease is consistent with patient’s description of cause”. Under a heading “How is the injury/disease related to work?” the doctor said:
“Injury at work – 29/7/2016. - Fell off the ladder – 6m. (Ladder collapsed) – Since then pain – lower back radiating to legs.”
In Greif Australia Pty Limited v Ahmed[45] Roche DP discussed the probative value of medical certificates dealing with issues of causation:
“44. The only evidence from Dr Khoo is in his medical certificates and a hand written report dated 24 March 2005. The initial certificates only refer to a right shoulder injury and cervical disc disorder. The certificate of 13 May 2005 is the first mention of back pain but there is no report by the doctor attempting to link that pain with either the injury on 17 March 2005 or the nature and conditions of employment.
45. There are numerous medical certificates from various doctors at Glenwood Medical Centre. The first is from Dr Kheray dated 5 July 2005, which referred to a date of injury of 17 March 2005 and stated ‘instant neck pain and gradual back pain after lifting 60kg bin full of rubbish’. This history was not consistent with other evidence (accepted by the Arbitrator) that the back pain did not start until 12 May 2005. In any event, neither this certificate nor any of the other certificates from Glenwood Medical Centre give any reasons for purporting to support a claim that Mr Ahmed’s lower back symptoms have resulted from either the injury on 17 March 2005 or the nature and conditions of employment. The certificates contain no more than a bare assertion without any analysis of the issues and provide no support for the Arbitrator’s conclusion (Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16).”[46]
[45] [2007] NSWWCCPD 195 (Ahmed).
[46] Ahmed, [44]–[45].
The Deputy President confirmed this reasoning in Greif Australia Pty Ltd v Ahmed[47] (a reconsideration application in the same proceedings). The President Keating DCJ applied Ahmed No 2 in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde.[48]
[47] [2007] NSWWCCPD 229; 6 DDCR 461, [79] (Ahmed No 2).
[48] [2011] NSWWCCPD 22, [93].
The evidentiary significance of medical certificates will depend on the circumstances of the particular case. There will be occasions where, if a certificate simply proves that a particular complaint was made at a certain time, that will be significant to issues of causation. By way of example, if there were a certificate from Dr Khan dated 30 July 2016, that established a complaint of right hip pain was made then, on the day following the fall, that would be of obvious significance. The certificate dated 16 March 2018 is not of such a nature. The certificate establishes that complaints of hip pain were made prior to 16 March 2018, which is proved from other sources in any event. The certificate does not refer to when hip complaints were first made. The doctor’s stated reason for supporting a connection between the fall and the bilateral hip injury does not assist. It makes no specific reference to the hip complaints, referring simply to pain in the lower back radiating to the legs. As with the certificate discussed in Ahmed, it offers “a bare assertion without any analysis of the issues”, a “bare ipse dixit”, which is “not probative”, to adopt the language of McColl JA in South Western Sydney Area Health Service v Edmonds.[49] Notwithstanding the appellant’s submission to the contrary, the certificate was not evidence of “great importance”.
[49] [2007] NSWCA 16; 4 DDCR 421 (Edmonds), [130]–[132].
A judge at first instance (or an arbitrator) has an obligation to “receive and consider the entirety of the evidence”.[50] McColl JA (Mason P and Hunt AJA agreeing) in Ainger v Coffs Harbour City Council[51] said:
“The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA.”[52]
[50] Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, [23].
[51] [2005] NSWCA 424 (Ainger).
[52] Ainger, [48].
The Arbitrator’s reasons considered the various reports from treating and qualified specialists. He dealt with the appellant’s statement regarding his symptoms and treatment from time to time. He dealt with the clinical material from Dr Khan’s practice, and the extent to which the appellant’s recorded complaints and history from time to time supported the case the appellant made on causation. The Arbitrator exposed his reasons for resolving the contest on causation in the way he did. The Arbitrator did not err in failing to specifically deal in his reasons with the certificate dated 16 March 2018.
Ground No 2 is rejected.

GROUND NO 3

Misunderstanding the medical evidence.

GROUND NO 4

Misconceiving the matter before him, in considering it was to be resolved by record of contemporaneous complaint.

GROUND NO 5

Failing to address the fact that the onset of right hip pain occurred before any left hip pain.

These grounds go to the Arbitrator’s analysis of the medical evidence, and it is convenient to deal with them together.

Appellant’s submissions

The appellant submits that the Arbitrator’s analysis focussed on the opinion evidence of Drs Powell and Chin, who thought attribution to the fall was possible, rather than Dr Habib, who was “more supportive of the connection”. Dr Habib described a mechanism involving damage to the arterial supply to the head of the femur. He said the fall was in all probability a substantial contributing factor to not only the lumbar discopathy, but also the condition of the right hip and ankle joints. Dr Habib explained a mechanism where the “avascular necrosis developed over time”.[53] Dr Powell said that “it can take up to a year for the condition to become clinically apparent”.[54] This would be consistent with it commencing around the time of the incident. The Arbitrator regarded the fact that hip symptoms, on his analysis, commenced about one year after the incident, as “determinative”. The appellant submits this involved error.
[53] Appellant’s submissions, [8].
[54] Dr Powell’s report dated 20 November 2017, Reply, p 15.
The appellant submits that his right leg took a greater impact than his left in the fall. Hip pain initially developed on the right, it had an earlier need for hip replacement, it is a greater source of pain and disability. The avascular necrosis on the left side is not as clinically advanced. The appellant submits that Dr Habib’s explanation of “causation explains why the right hip is worse”.[55] He submits the Arbitrator did not engage with this evidence.
[55] Appellant’s submissions, [14].

Respondent’s submissions

The respondent submits that Dr Chin’s opinion was that it was difficult to ascertain whether the fall caused the right hip pain and bilateral avascular necrosis. Dr Powell said the fall could not be considered a substantial contributing factor to the avascular necrosis. These doctors did not make “any concession of the condition being attributed to the fall”. Dr Powell did not provide any support for the appellant’s case. Dr Habib’s evidence was adequately taken into account.[56] It is not an error for an Arbitrator to not refer to a particular medical report, citing Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home).[57]
[56] Respondent’s submissions, Ground 3(i)–(iv).
[57] [2008] NSWCA 127; 6 DDCR 266.
The respondent refers to the first recorded complaint of hip pain being on 9 August 2017, more than one year after the fall. Dr Habib erroneously relied on a history of immediate hip pain. Dr Habib’s view is “isolated from any other opinion”.[58]

Consideration

[58] Respondent’s submissions, Ground 5(i)–(iv).

The medical opinion evidence on the right hip condition

Dr Chin

Dr Chin reported to Dr Shinwari on 24 August 2017.[59] He recorded a history of “neurologic type symptoms down [the appellant’s] legs”, and of “right greater than left hip and buttock pain at the time” of the fall, but “the focus was on his back”. The diagnosis of avascular necrosis of both femurs was “quite clear”. That report did not otherwise deal with causation.
[59] ARD, p 33.
Dr Chin reported to the insurer on 30 October 2017. On causation he said:
“It is difficult to ascertain whether the original injury caused the right hip pain and avascular necrosis of both hips. We usually see avascular necrosis of the hips from either hip dislocations or neck of femur fractures without either of those, it is difficult to ascertain why he has bilateral [osteonecrosis] of the femoral heads. Often the cause is unknown or idiopathic.
…
Anthony’s current presentation may be idiopathic or may be related to other causes like steroid use. I am unsure whether he was given corticosteroids when he injured his back or as part of some of the spinal surgery that he would have had.”[60]

Dr Habib

[60] Reply, p 19.

The doctor reported to the appellant’s solicitors on 30 March 2018. The appellant’s solicitors subsequently obtained an amended report from Dr Habib, again dated 30 March 2018, which expanded on the doctor’s discussion about causation dealing with avascular necrosis. The amended report additionally added an assessment of whole person impairment, not relevant for current purposes. The amended report was attached to an Application to Admit Late Documents dated 6 June 2018.[61] This is the version of the report to which the appellant refers in his submissions on appeal. It was before the Arbitrator, and is the version of Dr Habib’s report to which I refer on this appeal.
[61] Dr Habib’s report dated 30 March 2018 (amended) in Appellant’s Application to Admit Late Documents dated 6 June 2018 (AAALD), p 4.
Dr Habib recorded that, at the time of the fall, “[a]ccording to his statement he felt immediate pain in his back, right hip and radiating in both the lower limbs to the calf”. The doctor recorded “[a]s the pain persisted he consulted the family doctor on 30/07/16”. Dr Habib recorded a history of the treatment by Dr van Gelder for the spinal problem. He recorded that the appellant “continued to experience considerable pain in the right groin/gluteo trochanteric area despite considerable relief of the sciatic symptoms”. He said the MRI scan on 12 August 2017 showed “early changes of avascular necrosis of both femoral heads”.[62]
[62] AAALD, p 5.
On causation, Dr Habib said:
“It appears that the heavy contusional trauma to the right hip and to a lesser extent the left hip joint to be a contributory factor from the damage to the part of the arterial supply of the head of the femur through the ligamentum capitis femoris. The artery along the ligament is a branch of the obturator artery.
The avascular necrosis of the head of the femur can occur without obvious trauma, called idiopathic. As [the appellant] developed the hip joint symptoms, right first and the left one later, I’ll be inclined to consider his condition referable to the trauma suffered in the said incident of 29/07/16.
As he has had no pain or restricted mobility of the right hip joint prior to the subject fall on 29/07/16 and no pre-accident imagery of the hips, one would have to presume in all probability that the fall on 29/07/16 to be the substantial contributor to not only his lumbar discopathy with right radiculopathy, but also the right hip and right ankle joints conditions.
…
I agree with Dr R Chin’s opinion regarding the need for total hip replacement and also I am of the opinion that the fall on 29/07/16 being the substantial contributor, this condition and the procedure to be the part of the initial injury at work on 29/07/16.”[63]
[63] AAALD, p 8.
The doctor’s diagnosis relevant to the right hip was “Traumatic arthropathy, aggravation of possibly pre-existing but asymptomatic right hip arthropathy.”[64]

Dr Powell

[64] AAALD, p 9.

Dr Powell reported to the insurer on 20 November 2017,[65] and to the respondent’s solicitors in a supplementary report dated 5 June 2018.[66]
[65] Reply, p 6.
[66] Respondent’s Application to Admit Late Documents dated 6 June 2018 (RAALD), p 4.
Dr Powell recorded a history:
“He indicated that he fell approximately 6m, landing on concrete, initially with his right ankle, but then onto his right buttock and back, hitting his head.
He indicated that he was concussed, although he did not lose consciousness.
He had pain in the lower back, down the right buttock and pain extending in both legs to the calves, and shortly afterwards developed feelings of numbness down both legs.”
The subsequent history was described:
“… he continued to have difficulties with pain in his lower back and numbness in both legs and pain radiating into both calves. He used oral analgesics and was finding it increasingly difficult to get around.
He had no other symptoms.”
Dr Powell recorded the history of treatment by Dr van Gelder of the spinal condition. He recorded that, after the second spinal operation, there was:
“no change in his symptoms which continued to be pain about the right buttock area, extending down to the right calf, intermittent feelings of numbness in the right foot and ankle, difficulty weight bearing and needing to use external support.”[67]
[67] Dr Powell’s report dated 20 November 2017, Reply, pp 7–8.
Dr Powell said there was “no easy answer” to the issue of “whether there might be a traumatic component” to the “aetiology of the avascular necrosis”. He described the condition as “not infrequent through the population”, and said that in 60 to 70 per cent of cases there is “no identifiable cause nor association”. It is frequently bilateral. Dr Powell dismissed a number of possible explanations, medications, corticosteroids, alcohol, bariatric causes, direct injury to the vascular system. He said there has been an association with “repetitive low impact trauma over a period of time, but its association with a single event is more difficult to establish particularly where there has been no major structural disruption.” The doctor said that if the appellant “did indeed strike first with his right lower limb and he had unilateral disease, this might be an associative explanation. However, it would not explain the bilateral presentation.”[68]
[68] Reply, p 14.

Dr Powell concluded:
“It is most likely that [the appellant] has idiopathic avascular necrosis of the hips, and it is just unfortunate that it has arisen coincidentally with the other events that have occurred.
…
“[The appellant’s] work incident could not be considered a substantial contributing factor to his development of bilateral avascular necrosis in the hips. It would be unlikely that a single trauma event in the absence of structural injury in the hip region would result in bilateral avascular necrosis., The presentation of bilateral disease is more indicative of some form of central aetiology rather than peripheral.”[69]
[69] Reply, p 15.
In his supplementary report dated 5 June 2018, Dr Powell reviewed the material obtained from All Care Medical Centre (the practice of Dr Kahn and others). The doctor discussed, in a general sense, medical conditions which could be associated with avascular necrosis. He said:
“As outlined previously, a single episode trauma event without fracture is unlikely to be a cause of avascular necrosis, particularly bilateral disease.
[The appellant] still remains in the idiopathic group for avascular necrosis and it is unlikely that the event described, if it did happen, has had any significant influence upon this condition.”[70]
And:
“It is highly unlikely that [the appellant] developed bilateral avascular necrosis as a result of a fall from 6m on 29 July 2016. The development of avascular necrosis though a single trauma is mainly associated with hip fracture, which [the appellant] has not had.”[71]
[70] RAALD, p 6.
[71] RAALD, p 7.

Application of the medical evidence

The Arbitrator summarised the medical evidence from Drs Chin, Habib and Powell in detail.[72] Dealing with Dr Habib,[73] the Arbitrator noted at some length the history recorded by the doctor, including the mechanics of the fall in which the appellant landed on his right foot first, and “severely jarred the right ankle and the right hip”.[74] He noted Dr Habib’s suggested explanation for the development of avascular necrosis, involving damage to the arterial supply to the head of the femur.[75] He noted Dr Habib’s opinion, that he inclined to the view that the damage was traumatic, as symptoms occurred initially in the right hip. The Arbitrator clearly was cognisant of, and recorded, the medical opinion evidence of the three specialists who commented on causation of the avascular necrosis, including Dr Habib. The Arbitrator referred to those parts of Dr Habib’s reasoning that led the doctor to his view on causation. The appellant’s submission that the Arbitrator “only focussed [on] the conclusion reached by Drs Powell and Chin” is without merit.
[72] T2 4.25–13.33.
[73] T2 6.33–9.19.
[74] T2 8.7–8.
[75] T2 8.20–29.
Dr Habib’s opinion was based on a history, taken from the appellant’s statement, that the appellant suffered immediate pain in the right hip at the time of the fall. It was based on a history that such symptoms (with others) persisted, leading him to consult with his general practitioner on 30 July 2016. It was based on a history that the appellant tried work for “a short period” after the fall, but because of “severe pain in the back radiating in the right lower limb and also the right hip pain, he was not able to continue”. It was based on a history that the right hip pain (and other symptoms), led to imaging and a referral to Dr van Gelder, who the appellant first saw in December 2016.[76] Dr Habib proceeded on the basis that there was a severe jarring injury to the right foot and hip on 29 July 2016, “heavy contusional trauma”, involving “damage to the part of the arterial supply of the head of the femur”.[77]
[76] AAALD, pp 5–6.
[77] AAALD, p 8
The appellant submits that “Dr Habib described a mechanism by which the avascular necrosis developed over time”, and “a conclusion that the [appellant] did not complain of hip pain for one year after the incident cannot be treated as determinative of the issue of causation”.[78]
[78] Appellant’s submissions, [12].
Dr Habib identified a mechanism by which the avascular necrosis may have been caused, being interference with the arterial supply to the head of the femur. Dr Habib’s opinion was not based on a history of hip symptoms developing up to a year after the fall. The factual assumptions relied upon by Dr Habib involved severe contusional trauma at the time of the fall, with immediate symptoms in the right hip (amongst other places), which continued, until Dr van Gelder was eventually consulted in December 2016. Dr Habib does not suggest that his explanation of the condition is consistent with a late onset of hip symptoms, up to a year after the fall.
Dr Chin’s report, dated 24 August 2017, has a history of the fall from a six metre high ladder, predominantly onto the back. It is silent on issues of causation.[79] The doctor’s discussion on causation is found in his report to the insurer dated 30 October 2017. Dr Chin described a history of a fall from a six metre ladder, injury to the back, and a diagnosis of bilateral avascular necrosis on an MRI scan. The doctor said that the condition was usually seen “from either hip dislocations or neck of femur fractures”. The medical evidence does not suggest that either of those traumatic outcomes resulted from the fall. Dr Chin said that, in the absence of such matters, “it is difficult to ascertain why he has bilateral osteonecrosis of the femoral heads. Often the cause is unknown or idiopathic”. He also said:
“Anthony’s current presentation may be idiopathic or may be related to other causes like steroid use. I am unsure whether he was given corticosteroids when he injured his back or as part of some of the spinal surgery that he would have had.”[80]
[79] ARD, p 33.
[80] Dr Chin’s report dated 30 October 2017, Reply, p 19.
There is no suggestion in the evidence, and the case was not run on the basis, that steroid use associated with back surgery was a cause of the condition. Dr Chin does not offer the appellant assistance on the causation issue.
Dr Powell, reporting on 20 November 2017, said the largest group of sufferers of avascular necrosis were “idiopathic … 60 – 70% of patients”. He said the appellant did “not appear to have any of the common associated factors” (certain medications, corticosteroids, alcohol, a bariatric cause). The doctor said the appellant “has not had any trauma to cause direct injury of the vascular system (fracture or dislocation)”. He said if the appellant struck the ground first with his right lower limb, this might explain “unilateral disease”, but not the bilateral presentation.[81] He said it was:
“… impossible to determine from any of the investigations how long the process has been present in the hips. It could have commenced around the time of the incident, as it can take up to a year for the condition to become clinically apparent. It may have arisen in the interim but predating the fall would be unlikely.”[82]
[81] Dr Powell’s report dated 20 November 2017, Reply, p 14.
[82] Reply, p 15.
The doctor concluded the condition in the appellant’s case was idiopathic, having “arisen coincidentally with the other events that have occurred”.[83]
[83] Reply, p 15.
Dr Powell maintained this view in his report dated 5 June 2018, saying:
“It is highly unlikely that [the appellant] developed bilateral hip avascular necrosis as a result of a fall from 6m on 29 July 2016. The development of avascular necrosis through a single trauma is mainly associated with hip fracture, which [the appellant] has not had.
The likelihood of bilateral disease occurring from a single trauma event is even more remote. Trauma tends to [be] unilateral or if bilateral, tends to be asymmetric, and rarely results in a symmetric disorder.
The presentation of a symmetric disorder generally indicates a central and/or systemic cause.”[84]
[84] RAALD, p 7.
The MRI scan report dated 12 August 2017, after identifying the radiological changes in the right hip, said that “[s]imilar changes are identified in the left femoral head”.[85] Dr Powell, commenting on this MRI scan report, said the signal change in the left femoral head, was “not as intense” as the right.[86]
[85] Reply, p 24.
[86] Reply, p 12.
The only doctor to postulate “damage to the part of the arterial supply of the head of the femur through the ligamentum capitis femoris”, as a cause of the avascular necrosis, was Dr Habib. His understanding of the history is set out at [63] above. It is a history of immediate right hip symptoms at the time of the fall on 29 July 2016, persisting to 30 July 2016 when the appellant consulted his family doctor, and thereafter. Dr Habib’s supportive opinion is not based on a history of right hip pain not commencing until as long as one year after the fall (see [64] above).
The doctor who said it could take “up to a year”, from when the “process” commenced to “when it became clinically apparent”, was Dr Powell. Dr Powell regarded relevant “trauma to cause direct injury of the vascular system” as “fracture or dislocation”,[87] which had not occurred. This was consistent also with Dr Chin’s opinion.[88] Dr Powell considered it unlikely that “a single trauma event in the absence of structural injury in the hip region would result in bilateral avascular necrosis”.
[87] Reply, p 14.
[88] Reply, p 19.
Dr Powell did not say that his remarks, about the “process” taking up to a year before becoming clinically apparent, would apply if the condition resulted from trauma, as opposed to being idiopathic. One can envisage that other considerations would become relevant; the nature and severity of the trauma and the extent of any resulting interference with the arterial supply to the femoral head would be obvious examples. Dr Powell’s evidence is silent on such matters, the doctor having approached this issue on the basis that the condition was probably, in the circumstances, idiopathic.
The only specialist opinion that supported a causal link to the fall on 29 July 2016 was Dr Habib. Dr Habib considered the matter on the basis that symptoms in the right hip commenced immediately from the time of the fall. Dr Habib did not offer any opinion about the potential length of the process leading to the condition becoming clinically apparent, if trauma was a causal factor.
Submitting on Ground No 3, the appellant says that the Arbitrator focussed only on the conclusions of Drs Powell and Chin. This is incorrect. The Arbitrator set out Dr Habib’s views and reasoning at length,[89] as he did the evidence from Drs Chin and Powell. The Arbitrator said there was “an absence of evidence to establish the necessary causal link to the onset of this ‘disease’ condition, if I can call it that, being caused by the fall”.[90] He then turned to examine “inconsistencies” in the appellant’s evidence. A consideration of the inconsistencies involved a consideration of the evidence of Dr Habib.
[89] T2 6.33–9.19.
[90] T2 19.25–8.
The inconsistencies are discussed under Ground No 1. The Arbitrator said there was “no contemporaneous evidence at all to support [the appellant’s] assertions that he had injured his right hip in the fall”.[91] The passage of the Arbitrator’s reasons quoted at [27] above sets out a number of the identified inconsistencies in the evidence. The first three medical consultations referred to in the appellant’s statement are inconsistent with the general practitioners’ records. The first corroborated complaint to a doctor, after the fall, was on 17 October 2016 with Dr Karim, the entry for which referred to two weeks of back pain, and did not refer to the hips or to a fall from 6 metres. The first recorded mention of right hip complaint was to Dr Khan on 9 August 2017, over one year after the fall, when the appellant was referred for an MRI scan.[92] The Arbitrator referred to the radiologist’s report of that investigation, dated 12 August 2017, in which the “[c]linical indication” for the scan of the right hip was given as “[f]our months of pain”.[93] I have referred (at [31] above) to the Arbitrator’s misdescription of the first reference to the hips in the notes being on 12 (rather than 9) August 2017. Nothing turns on this.
[91] T2 19.34–20.2.
[92] ARD, p 162.
[93] Reply, p 24, referred to at T2 21.10–14.
The Arbitrator said, correctly, that there was “no contemporaneous evidence … that the right hip was involved”, between the fall on 29 July 2016, and the recording of hip complaints in August 2017. He said that the appellant’s case was based on “what he remembered when he gave his statement in March of this year”. It was “dangerous to accept” the appellant’s evidence in his statement, where it is not supported where one would expect support.[94]
[94] T2 21.25–33.
The Arbitrator’s rejection of the appellant’s evidence, regarding when he experienced right hip pain, was available in the circumstances. The Arbitrator referred to multiple inconsistencies between the appellant’s evidence in his statement, and the material in the clinical records from Dr Khan’s practice. These were unexplained.
The specialist medical opinion that supported the appellant’s case was that of Dr Habib. The respondent’s submissions observe that the first consultation in the general practitioners’ notes, after the fall, is that recorded with Dr Karim on 17 October 2016. The respondent submits there were 30 consultations with that practice, between 27 February 2016 and 2 August 2017, with no record of hip pain. The first such complaint was on 9 August 2017, “more than 1 year after the fall”. The respondent submits that “Dr Habib erroneously relies on a history of immediate hip pain”. It submits “Dr Habib’s thesis of a causal nexus and the necrosis stands isolated from any other opinion”.
The respondent’s submission is correct. Dr Habib’s opinion was based on a history of right hip pain dating from the time of the fall on 29 July 2016. This history was inconsistent with other evidence, was not substantiated by the clinical material from the general practice of Dr Khan and others, and was not accepted by the Arbitrator. The appellant failed to prove, on evidence accepted by the Arbitrator, the history on which Dr Habib relied, in reaching his opinion on causation. The effect of this was that Dr Habib’s opinion was deprived of weight.[95] The Arbitrator’s approach was consistent with r 15.2(3) of the Workers Compensation Commission Rules 2011, which provides that “evidence based on speculation or unsubstantiated assumptions is unacceptable”. This led to the Arbitrator’s conclusion that the appellant had failed to discharge his onus of proof on the causation issue, which was the only issue in the proceedings between the parties. The Arbitrator referred specifically to “the long gap and the inconsistencies”.[96] Contrary to the appellant’s submission, a large part of the Arbitrator’s reasons and analysis were devoted to the issue of the acceptability and weight of Dr Habib’s opinion. The Arbitrator did not err in the approach which he took. Ground No 3 fails.
[95] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [82]–[83], Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [2]–[3], [86].
[96] T2 22.1–5.
In relation to Ground No 4, the appellant submits the Arbitrator erred in seeking to resolve the causation issue by reference to whether there were contemporaneous records of right hip complaints.[97] Dr Habib did not describe a mechanism by which the avascular necrosis developed over time (see [64] above). Dr Habib’s opinion proceeded on the basis that right hip symptoms were present immediately, from the time of the fall. Dr Habib clearly regarded this immediate onset of symptoms as consistent with the mechanism which he described.
[97] Appellant’s submissions, [11]–[12].
The medical evidence supporting the proposition that there may be a period of up to about one year, between commencement of the process and avascular necrosis becoming clinically apparent, was from Dr Powell.[98] Dr Powell did not accept that the trauma involved was of a type that would cause bilateral avascular necrosis; rather he considered the process in the appellant’s case was idiopathic. He thought it “highly unlikely that [the appellant] developed bilateral hip avascular necrosis as a result of a fall from 6m on 29 July 2016”.[99]
[98] Reply, p 15.
[99] RAALD, p 7.
For reasons discussed above, it cannot be assumed that the time taken for the process to become clinically apparent, if the condition resulted from trauma (the appellant’s case) would be the same as the time involved if the condition was idiopathic, and trauma was not, on the probabilities, a factor (Dr Powell’s view). The evidence is silent regarding the time taken for the condition to develop and be clinically apparent, if trauma is the cause. The only specialist evidence identifying trauma as the probable cause was from Dr Habib, who proceeded on the understanding that right hip symptoms were present immediately. Given the history on which Dr Habib’s opinion was based, there was no error in the Arbitrator looking to contemporaneous evidence to deal with the causation issue. Ground No 4 fails.
In Ground No 5, the appellant argues the Arbitrator should have had regard to the appellant’s complaint that pain initially developed in the right hip, that hip replacement was first recommended on the right side, that the right hip is the greater source of pain and disability, and that the condition is more clinically advanced in the right hip. The appellant submits this is consistent with the “hip problem being a consequence of the fall”.
The MRI scan report dated 12 August 2017 described the changes in the left femoral head as “similar” to those on the right side.[100] Dr Powell appears to have had access to the scan itself,[101] and he commented there was “a little more advancement on the right”.[102] At the time of his original assessment, Dr Powell described the condition as “symptomatic on the right”.[103] Dr Chin’s short report dated 3 November 2017,[104] recommending right total hip replacement, was one of the documents “reviewed” by Dr Powell at the time of his first assessment.[105] Dr Powell’s history was consistent with the fall being initially onto the right lower limb.[106] Dr Powell’s assessment was conducted with an awareness of the various matters raised in the appellant’s submissions on this issue.
[100] ARD, p 20.
[101] Reply, pp 7 and 12.
[102] Reply, p 13.
[103] Reply, p 12.
[104] ARD, p 24.
[105] Reply, pp 7 and 17.
[106] Reply, pp 7 and 13.
Dr Powell expressed some difficulty with the appellant’s history that “hip pain was a feature from the outset”, noting this was not “reflected in Dr van Gelder’s assessments”.[107] On this point, Dr Powell’s doubt was ultimately reflected in the Arbitrator’s analysis of the contemporaneous documentary evidence, dealing with the acceptability of the appellant’s evidence that right hip pain was present from immediately after the fall. Aware of the multiple factors raised by the appellant’s submissions on this issue, Dr Powell concluded that it was “most likely that [the appellant] has idiopathic avascular necrosis of the hips, and it is just unfortunate that it has arisen coincidentally with the other events that have occurred”.[108]
[107] Reply, p 13.
[108] Reply, p 15.
Dr Chin’s opinion is discussed above, it does not support the appellant on the causation issue.
The only specialist medical support for the appellant on the issue was from Dr Habib, who relied on the sequence of events. He described the fall onto the right foot, and said the “clinical history and findings are consistent with the severe arthropathies of the right hip and the right ankle joint”. He said that as the appellant “developed the hip joint symptoms, right first and the left one later, I’ll be inclined to consider his condition referable to the trauma”. He said that as there was no history of pain or restricted mobility prior to the fall, and no pre-accident imagery of the hips, “one would have to presume in all probability that the fall on 29/07/16 to be the substantial contributor to not only his lumbar discopathy with right radiculopathy, but also the right hip and right ankle joints conditions”.[109]
[109] AAALD, pp 8–9.

The difficulty with this, from the appellant’s point of view, is that Dr Habib’s opinion took account of the sequence of events, including his understanding of the clinical history, that the appellant suffered from right hip pain from immediately after the fall. For reasons discussed above, the weight of Dr Habib’s opinion on the causation issue is eroded, by the lack of consistency between the history on which Dr Habib relied, and the Arbitrator’s rejection of that history, by reference to the inconsistencies between the history and the contemporaneous documentary evidence.
It follows that Ground No 5 fails.

GROUND NO 6

Failing to consider the significance of symptoms recorded by treating doctors prior to the diagnosis of avascular necrosis.

This ground also deals with histories recorded by treating doctors.

Appellant’s submissions

The appellant submits there was evidence of complaints “of right sided symptoms prior to August 2017”. He submits the Arbitrator “did not engage” with this evidence. The appellant submits it was “only after the surgery was not successful in relieving the right sided pain that attention turned to the right hip”. He submits it is “highly likely that the [appellant’s] complaints of right sided pain included the right hip but the medical practitioners did not refine their record keeping”. The position “needs to be reviewed in light of what is now known”. The appellant refers to three histories, Dr Karim on 27 February 2017, Professor van Gelder on 31 August 2017 and Dr Chin on 24 August 2017.[110]
[110] Appellant’s submissions, [15].

Respondent’s submissions

The respondent submits that “low back pain radiating to the right foot does not equate to anything encompassing the hip”. It submits the submission is “fanciful in the absence of a consistent clinical history”.[111]
[111] Respondent’s submissions, [2.8 Ground 6(i)].

Consideration

The treatment at the general practice attended by the appellant involved a number of doctors. Dr Karim saw the appellant on 17 October 2016, the first consultation recorded in the notes after the fall on 29 July 2016. The complaints were “low back pain for 2 weeks pain radiating to the left foot + tingling sensation”. Gross neurological examination of the lower limbs was described as “NAD”. The note included “?S1 Radiculopathy”.[112] The next entry in the notes is with Dr Karim on 27 February 2017, the entry referred to in the appellant’s submissions. The recorded complaints were:
“low back pain for few weeks
         pain radiating mostly to right foot but occasionally radiating to the left foot
         O/E – low back
         nil swelling/bruise
         nil midline tenderness
         nil tenderness others
         movements mild restricted in all directions
Gross neurological exam of the lower limbs NAD”.[113]
[112] ARD, p 179.
[113] ARD, p 178.
There was a consultation with Dr Lee, at the same practice, on 6 March 2017. The examination referred to restricted back movements, “Neuro exam normal”, and “Tender in L5/S1”. It referred to a lumbar CT scan that was reported as showing abnormalities from L3/4 to L5/S1. The quoted CT scan report included an item of history:
“Was in a traction in Nepean Hospital 18 years ago following a footy injury. Had disc prolapse at the time.
Has always been niggling since then. In the last 6 months it has gotten worse after coming off a ladder.
Pain initially [radiated] down both legs. Now in the right leg. Bladder and bowel control ok”[114]
[114] ARD p 177.
The next entry is on 24 March 2017 with Dr Karim, with a history “L4/5 disc bulge with L5 nerve root compression cortisone inj by prof james van gelder – liverpool hosp on 20/03/17”.[115]
[115] ARD, p 177.
The appellant underwent lumbar surgery at the hands of Dr van Gelder on 3 April 2017.[116] He attended Dr Khan on 5 April 2017. The complaints were recorded:
[116] ARD, p 22.
“Subjective:
Injury at work – 29/07/16. – Fell off the ladder – 6m. (Ladder collapsed) – Since then Pain – lower back radiating to legs.
Seen Dr few times – see previous notes
Was referred to Dr Van Gelder
Musculo-skeletal: back pain.
Objective:
Musculo-skeletal:
Affected joint:- Tender, Movement restricted.
Diagnosis:
Chronic Lower Backpain – Discopathy/Radiculopathy – Discectomy”.[117]
[117] ARD p 176.
The complaints following the surgery continued to involve leg symptoms. On 15 May 2017, Dr Khan recorded “Pain limiting function, unable to walk or stand for long periods, unable to climb stairs”. That entry included a reference to a post-surgical MRI scan, “shows annular tears with probable impression on right L5 nerve root”.[118] Dr Khan, on 22 May 2017, recorded “Back pain.- Radiating to Rt Buttock and leg – last 3 days”.[119] The first reference to hip pain was on 9 August 2017: “Right hip pain. Right ankle pain”. On that consultation Dr Khan ordered radiological studies of the right ankle and hip.[120] The MRI report dated 12 August 2017 gave a diagnosis of “[b]ilateral femoral head avascular necrosis”. The clinical indication for the scan was described as “[f]our months of pain”.[121]
[118] ARD, p 171.
[119] ARD, p 170.
[120] ARD, p 163.
[121] ARD, p 20.
The multiple consultations at the general practice after 29 July 2016, up to 9 August 2017 (when hip pain was clearly mentioned), do not suggest symptoms involving the right hip. It would be conjecture to postulate that such complaints involved the right hip, simply on the basis of a lay observation that the right hip is in the general vicinity of the lower back, right buttock and leg. Many of the notes include notations that are consistent with the appellant being physically examined, and brief findings recorded, at the time of the consultations. It would be expected that a medical practitioner would be able to differentiate between symptoms emanating from lumbar disc pathology, as opposed to avascular necrosis in the right hip.
The appellant specifically relies on a consultation with Professor van Gelder, the treating neurosurgeon, on 28 August 2017.[122] The report describing that consultation referred to the diagnosis, made by that time, of avascular necrosis. It said “[h]e has right hip pain.” The report described recurrent sciatica in the “right leg in L5 distribution”. Professor van Gelder said “surgical decompression and exploration for disc herniation is a good option”. The report did identify symptoms in the right hip, and spinal symptoms, co-existing. Professor van Gelder differentiated between the two. He recorded the complaint of right hip pain, and then proceeded to describe spinal symptoms radiating down the right leg in an L5 distribution, for which he suggested “surgical decompression and exploration for disc herniation”. This report does not suggest any confusion in the doctor’s mind between hip symptoms and spinal symptoms. Dr Powell had access to a number of Professor van Gelder’s reports when he initially examined the appellant. Dr Powell said:
“He indicated that he had back pain, and hip pain which he indicated was in the right buttock and into the legs. He indicated that the hip pain was a feature from the onset. This does not seem to be reflected in Dr Van Gelder’s assessments and his initial assessment suggested lumbar disc pathology was [the appellant’s] main difficulty and for this he proceeded to operative management requiring revision.”[123] (emphasis added)
[122] Professor van Gelder’s report dated 31 August 2017, ARD, p 22.
[123] Reply, p 13.
The appellant also refers to the consultation with Dr Chin on 24 August 2017.[124] The doctor took a history of the fall, and of “right greater than left hip and buttock pain at the time”. He also took a history of “neurologic type symptoms down his legs”, and that “the focus was on his back”. This history, given about 13 months after the fall, is of hip symptoms from the time of the fall. This is consistent with the history in the appellant’s statement dated 12 March 2018. It is the history that the Arbitrator rejected, because of its inconsistency with contemporaneous medical material.
[124] ARD, p 33.
On the recorded history, when a lumbar MRI scan was carried out (see [96] above) the appellant had suffered from niggling lumbar symptoms since a “footy” injury, involving disc prolapse, 18 years previously. On the history, that was the problem that got worse after coming off a ladder. The appellant provided histories to, and was examined by, different doctors at the general practice from time to time. There was no indication, before 9 August 2017, of hip related symptoms. When right hip complaints were recorded on 9 August 2017, the appellant was given a referral for an MRI scan to investigate them, which led to the diagnosis of bilateral avascular necrosis. The evidence does not suggest right hip complaints were made, prior to 9 August 2017.
The appellant’s submissions on Ground No 6 do not identify specific error, and the consequences that are alleged to have flowed. They assert that the Arbitrator failed to “engage” with the evidence of right sided problems prior to August 2017. The submissions say the position needs to be “reviewed” in light of what is known now. The submissions in support of Ground No 6 are essentially submissions on the evidence, rather than submissions that seek to identify error on the part of the Arbitrator.
There is no basis in the evidence to conclude that doctors at the general practice, or Professor van Gelder, prior to August 2017, failed to appropriately identify and record symptoms that emanated from the appellant’s right hip. The submission is essentially based on conjecture. The Arbitrator did not err in failing to “engage” with this possibility. Ground No 6 fails.

CONCLUSION

The factual findings made by the Arbitrator, and challenged on this appeal, were properly available to him on the evidence. Error of the sort referred to at [19]–[22] above is not made out. None of the Grounds of Appeal have succeeded. The appeal fails.

DECISION

The Arbitrator’s decision dated 28 June 2018 is confirmed.

Michael Snell

Deputy President

14 November 2018