Greenhills Childcare Centre Incorporated v Meireles - [2020] NSWWCCPD 37

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Greenhills Childcare Centre Incorporated v Meireles [2020] NSWWCCPD 37
APPELLANT:	Greenhills Childcare Centre Incorporated
RESPONDENT:	Gemma Sarah Meireles
INSURER:	Guild Insurance Ltd
FILE NUMBER:	A1-4316/19
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	4 December 2019
DATE OF APPEAL DECISION:	15 June 2020
SUBJECT MATTER OF DECISION:	Evidence in medical histories in the Commission: Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, alleged factual error: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, application of Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Perry, counsel
Lee Legal Group
Respondent:
Mr J Beran, counsel
CMC Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 4 December 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Gemma Meireles (the respondent) is a qualified worker in early childhood education. She was employed as a childcare worker by Greenhills Childcare Centre Incorporated (the appellant) for over ten years, prior to a work injury on 26 October 2018.[1] On that morning she parked and opened up the gates of the respondent’s Centre at South Windsor. She was then pulling a trolley, into which she had placed her uniform and other items, from her car towards the Centre’s gate. As she did so, she lost her balance on the uneven surface and fell. She reported the fall but worked her normal shift. She was provided with “light duties” working her normal hours. She had persisting pain in the knees. She saw a doctor on 8 November 2018. She was referred for MRI scans and physiotherapy. She saw an orthopaedic surgeon, Dr Qurashi, on 24 April 2019. She had cortisone injections. Dr Qurashi recommended realignment surgery to both knees.[2]
[1] Claim form, Application to Resolve a Dispute (ARD), pp 11–12.
[2] Respondent’s statement, [13]–[25], ARD, pp 27–30.
It was uncontroversial that the respondent suffered from some knee symptoms prior to 26 October 2018. The appellant’s insurer initially accepted liability to make voluntary payments of compensation. It declined liability for weekly payments and medical expenses in a s 78 Notice dated 30 May 2019. The insurer accepted that there had been “an aggravation of a pre-existing injury/condition” on 26 October 2018. It stated that “any aggravation has now resolved” and “any ongoing injury/condition to your knees was not a result of your employer [sic]”.[3]
[3] Section 78 Notice, ARD, p 24.
The current proceedings seek orders for payment of the cost of future treatment in respect of “bilateral knee patellofemoral realignment”. The matter was listed for arbitration hearing on 11 November 2019. Mr Beran appeared for the respondent and Mr P Perry appeared for the appellant. The matter proceeded on the written material, counsel addressed and the Arbitrator reserved her decision. The Commission issued a Certificate of Determination dated 4 December 2019 accompanied by 14 pages of reasons.[4] There were orders for the payment of the cost of the proposed surgery, against which this appeal is brought.
[4] Meireles v Greenhills Child Care Centre Incorporated [2019] NSWWCC 388 (Reasons).

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 both 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.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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,[5] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[6] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[7]) to the nature of the appeal process 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’.”[8]
[5] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[6] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[7] [1996] HCA 140; 140 ALR 227.
[8] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[9] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[10]
“… 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.”[11]
[9] [2017] NSWWCCPD 5, [67].
[10] [2001] FCA 1833, [28].
[11] Raulston, [20].
In Northern NSW Local Health Network v Heggie[12] 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”.[13]
[12] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[13] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[14] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[15]
[14] [2020] NSWCA 54 (Hill).
[15] Hill, [20].

THE ARBITRATOR’S REASONS

The Arbitrator noted the only issue was whether the need for the proposed surgery resulted from the injury on 26 October 2018.[16]
[16] Reasons, [4].
The Arbitrator summarised the respondent’s statement dated 11 July 2019.[17] She noted that clinical notes from the respondent’s general practitioner showed complaints of left knee pain in June 2015 and October 2017. The notes showed complaints of bilateral knee pain on 8 November 2017 and 13 January 2018. On the second of these occasions the history recorded six months of knee pain, with ongoing physiotherapy and an impact on the respondent’s functioning. At that time, she was given a referral to an orthopaedic surgeon, Dr Fraser.[18] She ultimately did not use this referral.[19]
[17] Reasons, [10]–[18].
[18] Reasons, [20]–[24].
[19] Reasons, [91].
The next general practitioner consultation that mentioned knee pain was on 8 November 2018. The notes on that date recorded a history of the fall on 26 October 2018. The notes recited the complaints and findings on examination in detail. The Arbitrator referred to the certificate issued by Dr Lu on that consultation. The certificate referred to an MRI of the left knee in October 2017, treatment with physiotherapy, and then “minimal pain and good function prior to the fall”. The Arbitrator said that after the fall “there were regular consultations with respect to the [respondent’s] knees”.[20]
[20] Reasons, [25]–[27].
The Arbitrator referred to the opinion evidence from treating practitioners. Dr Lu said “employment is a contributing factor to injury as she was symptom free until she sustained a fall on 26/10/18”. He described this as “an aggravation of a pre-exiting condition given she was pain-free prior to the fall and now has persistent knee pain”.[21] Dr Qurashi referred to the knee problems, saying “[m]ost of this started after an injury involving a fall at work in November 2018 after which she has been experiencing ongoing symptoms by way of anterior knee pain”.[22]
[21] Reasons, [29].
[22] Reasons, [31].
The Arbitrator summarised the evidence of Dr Bodel, the orthopaedic surgeon qualified in the respondent’s case. The Arbitrator quoted from Dr Bodel’s report dated 25 September 2019:
“… the rapid deterioration that occurred following the event on the 26 October 2018 has caused additional structural pathology to the arthritic retropatellar regions leading to the need for surgery as proposed by Dr Qurashi.
It is possible that she may well have required this surgery at some later stage, but the events of 26 October 2018 have brought forward the timing of that surgery as recommended by Dr Qurashi.”[23]
[23] Reasons, [37]–[41].
The Arbitrator summarised the reports of Dr Wallace, the orthopaedic surgeon qualified in the appellant’s case. He said that in the event on 26 October 2018, the appellant “… suffered a minor aggravation of pre-existing patellofemoral joint arthritis at her bilateral knees which would have settled within 6 weeks of this incident”. Dr Wallace said the injury on 26 October 2018 “has not materially contributed to the need for surgical realignment at her bilateral knees”.[24]
[24] Reasons, [43]–[49].
The Arbitrator summarised the submissions of counsel. Mr Beran submitted Dr Wallace did not give an opinion on whether the work injury had brought forward the time when the respondent required the proposed surgery. He submitted Dr Wallace did not take a history of a ten-month period while the respondent was symptom free, before the incident on 26 October 2018. He submitted Dr Wallace did not explain why the aggravation which he diagnosed would have settled within six weeks, which was not consistent with the clinical notes.[25]
[25] Reasons, [57]–[58].
The Arbitrator referred to Mr Perry’s submission that the respondent had provided no evidence about her previous knee symptoms and treatment. Mr Perry described this as a “fatal flaw” in the respondent’s case. Mr Perry referred to Dr Wallace’s opinion that the mechanism of injury, falling backwards onto the buttocks, was inconsistent with causing the patellofemoral pathology. The evidence was “unclear” regarding whether the respondent twisted her knees in the incident. He submitted the respondent saw her general practitioner on 31 October 2018 (the first consultation after the incident) about quitting smoking and did not mention the incident. This suggested the incident was “very minor”, consistent with Dr Wallace’s view. He submitted the doctors did not explain how the need for the proposed realignment surgery resulted from the incident. The reason articulated by Dr Qurashi for the surgery had nothing to do with the incident on 26 October 2018.[26]
[26] Reasons, [60]–[69].
The Arbitrator referred to Mr Beran’s submissions in reply. He directed attention to the handwritten incident report by the respondent, which was the most contemporaneous record of the mechanism of injury. The respondent had not tried to conceal her prior history. The doctors agreed the pre-existing pathology was not caused by the fall, it was enough that the need for surgery was brought forward by the aggravation. Dr Wallace’s view that the aggravation should have quickly resolved was not correct.[27]
[27] Reasons, [71]–[74].
The Arbitrator quoted from Kooragang Cement Pty Ltd v Bates,[28] Murphy v Allity Management Services Pty Ltd[29] and Taxis Combined Services (Victoria) Pty Ltd v Schokman,[30] decisions dealing with the test of causation.[31]
[28] (1994) 35 NSWLR 452, 10 NSWCCR 796.
[29] [2015] NSWWCCPD 49 (Murphy).
[30] [2014] NSWWCCPD 18.
[31] Reasons, [78]–[80].
The Arbitrator noted the appellant’s submission that the incident on 26 October 2018 was “minor and temporary”. The Arbitrator noted the first medical consultation at which the incident was recorded was on 8 November 2018. The history recorded ongoing knee pain since the fall, which had “worsened since Sunday”. She described this as “broadly consistent” with the history in the incident report, completed on 9 November 2018, that the respondent had sought to treat the problem with “rest, elevation and ice”, but the pain had worsened. The Arbitrator said she accepted the respondent’s description of a progression of symptoms that “reasonably accounts for the delay”.[32]
[32] Reasons, [81]–[83].
The Arbitrator referred to the appellant’s submission that there was uncertainty regarding whether the responded twisted her knees in the fall, in the clinical note from 8 November 2018. The Arbitrator said there was a “greater degree of confidence” in having twisted or hyperextended the knees, in the incident report filled out on the following day and in her statement. She said whether the respondent twisted her knees was not determinative. The clinical note on 8 November 2018 clearly indicated ongoing pain in the knees since the fall. All of the doctors accepted the incident was capable of causing an aggravation of the pre-existing pathology. The issue of ‘injury’ was not in dispute.[33]
[33] Reasons, [85]–[86].
The Arbitrator referred to Dr Lu’s initial certificate stating the respondent was pain free prior to the fall. Dr Qurashi’s history was that most of the knee problems started after the fall. The Arbitrator referred to Dr Bodel’s history that the respondent had knee symptoms in 2017 but was asymptomatic after physiotherapy and the use of anti-inflammatories for several months. She said she accepted this history, which was consistent with the clinical notes and the histories recorded by Dr Lu and Dr Qurashi.[34] She said the medical and lay evidence showed an increase in knee symptoms and the need for treatment after the fall. From 8 November 2018, there were regular medical consultations, a referral for an MRI of both knees, and a referral to an orthopaedic surgeon.[35]
[34] Reasons, [90].
[35] Reasons, [91].
The Arbitrator said she accepted the appellant’s submission that Dr Qurashi did not express a clear opinion on the causal connection between the incident and the need for surgery. The quote he forwarded to the insurer suggested Dr Qurashi considered some connection existed. She said Dr Bodel provided a clear opinion on the material contribution made by the fall, explaining it brought forward the need for surgery. The Arbitrator described some of Dr Bodel’s opinions as “opaque”, referring to passages that discussed ‘disease’. She said by the time of his final report, Dr Bodel “accurately comprehended the history and treating evidence”, and there was a “sound basis for the acceptance of the opinions expressed”.[36]
[36] Reasons, [93]–[98].
The Arbitrator noted Dr Wallace did “not accept that any patellofemoral pathology was caused by the fall given the mechanism of injury”. She said the primary difference between Dr Bodel and Dr Wallace was whether the aggravation had ceased. The Arbitrator said Dr Wallace’s opinion that an aggravation would have ceased within six weeks did “not sufficiently engage with the [respondent’s] actual circumstances and the evidence from her treating doctors” regarding symptoms and the need for treatment. For this reason the Arbitrator preferred the opinion of Dr Bodel over that of Dr Wallace.
The Arbitrator made the following ultimate findings of fact:
“102. I am satisfied on the balance of probabilities that the injury on 26 October 2018 has materially contributed to the present need for surgical treatment even if it is not the only or even a substantial cause for the need for the treatment.
103. I am satisfied that the applicant has discharged her onus of proof in relation to the claim and that the present need for bilateral knee patellofemoral realignment surgeries proposed by Dr Qurashi results from the injury on 26 October 2018.”

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) “That in observing at [90]: I accept that it would have been helpful had the [respondent] provided direct evidence on this matter, the Arbitrator erred in failing to direct herself that it was essential, to discharge the onus, for the [respondent] to bring evidence to demonstrate that the injury relied on had made a material contribution to the need for surgery. Not only did the [respondent] fail to provide direct evidence, she failed to provide evidence at all.” (italicisation in original) (Ground No. 1)
(b) “The Arbitrator further erred at [91] in her statement: the medical evidence and lay evidence clearly show an increase in knee symptoms and the need for treatment after the fall. This is incorrect, and the error made by the Arbitrator has clearly affected the decision (sec 352(5)).” (italicisation in original) (Ground No. 2)

GROUND NO. 1

Appellant’s submissions

The appellant states the Arbitrator noted a submission by the appellant that the medical practitioners did not indicate how the proposed bilateral realignment surgery was related to the injury. The appellant refers to Dr Qurashi’s report dated 8 May 2019 where the doctor stated “the distal malalignment is likely to cause her ongoing symptoms”. The appellant submits the malalignment was “quite clearly not caused by the injury”. The appellant submits there was clear evidence the cause of the ongoing symptoms as at May 2019 was not the event at work.[37]
[37] Appellant’s submissions, [2]–[6].
The appellant submits that, to establish the work injury constituted a material contribution to the need for surgery, the respondent, as a “minimal requirement”, needed to provide:
(a) an account of her knee symptoms from at least June 2015 to 2018, and
(b) an account of the progression of that knee pain, which on 13 January 2018 she told her general practitioners’ practice had been ongoing and had impacted on her day to day functioning.[38]
[38] Appellant’s submissions, [7].

The appellant noted the Arbitrator’s comment that it would have been helpful if the respondent had provided direct evidence on this matter. The appellant refers to Dr Bodel’s reference to complaints in 2017, when there were also complaints in 2015 and 2018. It submits the difference between true history, and Dr Bodel’s understanding of the history, was such that Dr Bodel’s opinion was “robbed … of any value”.[39] Reference is made to South Western Sydney Area Health Service v Edmonds.[40]
[39] Appellant’s submissions, [8]–[13].
[40] [2007] NSWCA 16 (per McColl JA), [127]–[131].

Respondent’s submissions

The respondent submits that, although the respondent’s statement does not deal with the prior history, there was “an abundance of evidence” in medical histories, dealing with her pre-injury state. The pre-existing condition was not hidden, the matter was approached at the arbitration hearing as a case involving aggravation. The respondent did not need to prove that “her injury was the only or even substantial cause for the need for treatment”.[41]
[41] Respondent’s submissions, [10].
The respondent refers to the history in Dr Qurashi’s report dated 24 April 2019 that “most” of the respondent’s pain started after the fall at work. The Arbitrator noted this in her reasons at [90]. The knee pain that would deteriorate, in Dr Qurashi’s opinion, was pain that was significantly increased after the injury. The respondent refers to the causation test described in Murphy and submits it was satisfied. The symptoms were increased after the injury such that “previously uncontemplated surgery was brought forward as stated by Dr Bodel”.[42]
[42] Respondent’s submissions, [11].
The respondent submits caution should be taken in the use of clinical notes, referring to Nominal Defendant v Clancy[43] and Mason v Demasi.[44] The respondent submits the weight to be ascribed to such notes was a matter for the Arbitrator,[45] and the Arbitrator in the reasons at [83], made an analysis of the notes and the reasons for delay in reporting.[46]
[43] [2007] NSWCA 349.
[44] [2009] NSWCA 227.
[45] King v Collins [2007] NSWCA 122, [32]. See also Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby).
[46] Respondent’s submissions, [12]–[13].
The respondent submits the histories given to Dr Bodel and the general practitioner were not impeached. The respondent submits the appellant’s attack on Dr Bodel is misfounded. There is no clinical record or complaint of relevant pain over the period of more than nine months before the injury. The respondent refers to the history in the certificate dated 8 November 2018,[47] “minimal pain and good function prior to the fall”. The report of Dr Lu dated 22 November 2018 recorded “pain-free prior to the fall”.[48] The respondent submits Dr Bodel’s history that the respondent’s knees were “asymptomatic after receiving physio treatment and through some anti-inflammatories for several months” was “totally founded in evidence”. The respondent submits the Arbitrator’s assessment of the evidence and application of the causation test described in Murphy was correct.[49]
[47] Application to Admit Late Documents (AALD) filed 11/11/19, p 148.
[48] AALD 11/11/19, p 6.
[49] Respondent’s submissions, [15]–[18].

Consideration

Ground No. 1 includes an assertion that the respondent failed to provide evidence at all of her knee complaints prior to the injury. This is without merit. It is true that her statement dated 11 July 2019 did not address this topic, but there was much material that did. In Onesteel Reinforcing Pty Ltd v Sutton[50] it was said:
“… if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor’s opinion. Much will depend on the context and the issues tendered for consideration as to how the Commission evaluates material before it. In most cases, as here, that evaluation will be a factual question …”.[51]
[50] [2012] NSWCA 282 (Sutton).
[51] Sutton (per Allsop P), [4].
In the same case McColl JA said:
“Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Southwest Sydney Area Health Service v Edmonds (at [129]) referring to Smith v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 (at [32]) per Mason P (Handley JA and Campbell J agreeing).”
The Commission is not bound by the rules of evidence: s 354(2) of the 1998 Act.[52] In JB Metropolitan Distributors Pty Ltd v Kitanoski Roche DP, dealing with evidence in the context of the Commission, said:
“The submission that there was no lay evidence before the Arbitrator is incorrect. As the Commission has pointed out in dozens of cases, statements in a medical history are evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225).”[53]
[52] See Sutton (per Allsop P), [2].
[53] [2016] NSWWCCPD 17, [98].
The respondent correctly submits that there was an “abundance of evidence” in the medical histories dealing with the pre-injury state of the respondent’s knees. The weight to be given to such evidence was largely a matter for the Arbitrator.[54]
[54] Rigby (per Beazley JA (as her Honour then was)), [144].
The appellant makes an argument that the surgery is to correct the malalignment in the respondent’s knees, and the malalignment is “quite clearly not caused by the injury”. This submission fails to take account of the fact that a purpose of the surgery is to deal with the respondent’s symptoms. On the Arbitrator’s fact finding, based on the evidence overall, the symptoms, at least in large part, result from the injury. That causation issue will be further dealt with below. Dr Qurashi, in his initial report dated 24 April 2019, recorded “a fall at work in November 2018 after which she has been experiencing ongoing symptoms by way of anterior knee pain”.[55] In his report dated 8 May 2019, Dr Qurashi referred to “treatment by way of realignment surgery to reduce the severity of her symptoms and hopefully slow down the degenerative process”.[56]
[55] ARD, pp 18–19.
[56] ARD, p 20.
Dr Bodel’s history, in his primary report dated 18 July 2019, recorded that following the injury the respondent had five months of physiotherapy with no change in her symptoms, Panadol had not helped, and there was continued difficulty with work activities whilst on light duties. Dr Bodel recorded that cortisone injections had not helped and Dr Qurashi had recommended realignment surgery. He recorded the history “[s]he can no longer tolerate the pain and wants to proceed with the procedure”.[57] Dr Bodel gave the opinion that the respondent had “a twisting injury to both knees and has severe painful retropatellar crepitus and chondromalacia in both knees as a result of this injury”. He said there is “a direct causal link between the episode of injury that occurred at work and her ongoing complaints”. He said “the episode of injury has made a material contribution to the need for surgery”.[58] Whilst the Arbitrator made some criticisms of Dr Bodel’s report, she concluded there was “a sound basis for the acceptance of the opinions expressed in that report”.[59] She preferred Dr Bodel’s opinion over that of Dr Wallace, on the topic of whether the effects of the work injury continued.[60]
[57] ARD, p 33.
[58] ARD, pp 33 and 36.
[59] Reasons, [98].
[60] Reasons, [101].
The above amply supports the Arbitrator’s finding at [102] of the reasons, that the injury materially contributed to the need for surgical treatment. The evidence overall, including the treating medical evidence from the respondent’s general practice and from her orthopaedic surgeon Dr Qurashi, is consistent with a significant increase in bilateral knee symptoms from the time of the injury. The evidence supports the proposition that the proposed surgery is to deal with the respondent’s complaints of pain since the injury. It was open to the Arbitrator to find that the injury was a material contributing factor to the requirement for surgery. The argument that causation was not made out, as the underlying problem of malalignment did not itself result from the injury, is rejected.
The appellant submits there was clear evidence the cause of the ongoing symptoms as at May 2019 was not the event at work. To the extent to which this is a reference to the causative role of the underlying malalignment, this is dealt with above. The other evidence to that effect was from Dr Wallace, the orthopaedic surgeon qualified by the appellant. Dr Wallace accepted that there was an aggravation injury on 26 October 2018. Dr Wallace’s opinion was that the respondent suffered a “minor aggravation” of bilateral arthritis of the knees, which “would have settled within 6 weeks of this incident”.[61] Consistent with this, Dr Wallace considered the respondent did “not require any surgical intervention at her bilateral knees as a result of any work-related conditions at the joints”.[62]
[61] Reply, p 5.
[62] Reply, p 6.
The Arbitrator, in her reasons at [100], gave clear reasons for her rejection of Dr Wallace’s opinion on this issue. She said it did “not sufficiently engage with the [respondent’s] actual circumstances and the evidence from her treating doctors with regard to her symptoms”.
In Purkess v Crittenden the plurality, referring to Watts v Rake,[63] said:
“We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.”[64]
[63] [1960] HCA 58; 108 CLR 158.
[64] [1965] HCA 34; 114 CLR 164, [4].
The way in which the Arbitrator dealt with Dr Wallace’s opinion on causation was consistent with these principles. Dr Wallace’s view on causation essentially consisted of an assertion that the effects of the aggravation injury, which he conceded, would be limited to a period of six weeks. This was not explained. It was inconsistent with the lay evidence and evidence from treating doctors, regarding the respondent’s symptoms and presentation subsequent to 26 October 2018. The character and quality of the evidence from Dr Wallace was insufficient to displace the prima facie case that the bilateral knee symptoms after 26 October 2018 resulted from the injury, having regard to the accepted evidence of an aggravation injury. The Arbitrator’s reasons for rejecting Dr Wallace’s opinion on the limited period of the aggravation were open to her and consistent with authority. Her conclusion was consistent with the evidence as a whole.
The appellant attacks Dr Bodel’s report on the basis of the history on which the doctor proceeded was inadequate. The appellant refers to a history in 2018 that knee symptoms were “ongoing” and “impacted on her day to day functioning”.[65] The appellant submits this “level of knee problems prior to October 2018” was greater than that recorded by Dr Bodel.[66] The appellant refers to Dr Bodel’s past history that “she had some complaints in 2017”. The appellant submits there were also complaints in 2015 and 2018. The appellant refers to a passage in Dr Bodel’s report where the doctor stated the respondent “had no clinical indication of pre-existing abnormality before the episode of injury that occurred at work”.[67] The appellant submits this “robbed Dr Bodel’s opinion of any value”.[68]
[65] AALD 11/11/19, p 107.
[66] Appellant’s submissions, [9].
[67] ARD, p 36.
[68] Appellant’s submissions, [13].
In Hancock v East Coast Timber Products Pty Limited[69] Beazley JA (as her Honour then was) analysed a number of the authorities relating to Makita (Australia) Pty Ltd v Sprowles[70] and associated decisions. Her Honour said:
“… the principles in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case. Accordingly, the absence of any express reference to those specific incidents did not mean that the facts upon which Dr Summersell based his opinion, including falls and instability of the knee, did not form a proper foundation for his assessment as required by the principle in Makita. The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports.”[71]
[69] [2011] NSWCA 11 (Hancock).
[70] [2001] NSWCA 305; 52 NSWLR 705.
[71] Hancock, [88].
Dr Bodel’s recorded past medical history in his report dated 18 July 2019 stated:
“This lady states that she is otherwise quite well. I have taken history and reviewed clinical notes and although she had some complaints in 2017 about her knees they were asymptomatic after receiving physio treatment and through some anti-inflammatories for several months.”[72]
[72] ARD, p 33.
The appellant refers to complaints in 2015 and 2018, which it says Dr Bodel did not mention. The notes from the general practice the respondent attended, regularly, show attendances during 2015 where knee complaints were mentioned on 7 June 2015, 30 June 2015 and 10 July 2015.[73] On the last two of these, the knees were not the only reason for the attendances, which related also to bronchial difficulties and counselling because the respondent was trying to stop smoking. There were complaints in 2017 which were referred to in Dr Bodel’s past history. These bilateral complaints commenced, in the records of the general practice, on 25 October 2017.[74] There were further recorded knee complaints in the records on 1 November 2017 and 8 November 2017.[75] The next and final such consultation, in that passage of treatment, was on 13 January 2018.[76] The last of these recorded a “6 month history of knee pain”, an MRI scan had been performed, and pain was “ongoing and had impacted on her day to day functioning”. There were then regular complaints at the practice of a general medical nature, but no complaints relevant to the knees, until 8 November 2018, following the work injury on 26 October 2018. There were regular knee complaints thereafter.
[73] AALD 11/11/19, pp 77–79.
[74] AALD 11/11/19, p 106.
[75] AAALD 11/11/19, p 106.
[76] AALD 11/11/19, p 107.
The initial medical certificate of Dr Lu following the injury, dated 8 November 2018,[77] recorded a past history of an MRI of the left knee in October 2017. “This was treated with physiotherapy and she had minimal pain and good function prior to the fall.” It also recorded: “Felt may have twisted knees during fall. Has had ongoing pain in both knees since.” Dr Lu’s report to the insurer dated 22 November 2018 recorded “she was symptom-free until she sustained a fall on 26/10/18”, and “[t]he injury sustained 26/10/18 is an aggravation of a pre-existing condition given she was pain-free prior to the fall and now has persistent knee pain”.[78] This material is largely consistent with Dr Bodel’s past history, referred to at [49] above. There was sufficient correspondence between Dr Bodel’s history of symptoms, and the facts proved by other sources (the medical records), that weight should be given to Dr Bodel’s report.
[77] AALD 11/11/19, pp 148–150.
[78] AALD 11/11/19, p 159.
Dr Bodel’s reference to there being “no clinical indication of a pre-existing abnormality before the episode of injury that occurred at work”, is not easy to understand. Dr Bodel clearly was generally aware of the prior history. The investigations he considered included the MRI scan report of the left knee dated 28 October 2017.[79] The respondent submits this passage is probably nothing more than an observation that there was no clinical recording of any relevant complaint for over nine months before the injury, that there was “good function of the knee prior to the fall”.[80] This is an available reading of this part of Dr Bodel’s report.
[79] ARD, p 35.
[80] Respondent’s submissions, [15]–[17].
The way in which the Arbitrator dealt with Dr Bodel’s report is briefly summarised at [24] to [25] above. The Arbitrator was clearly alert to the need for an appropriate correlation between Dr Bodel’s understanding of the history and the way in which the history was established by evidentiary material. In her reasons, she referred to the accuracy of Dr Bodel’s comprehension of the history and accepted there was “a sound basis for the acceptance of the opinions expressed”.[81] The passage from Hancock quoted at [48] above makes it clear that exact correspondence is not required. The extent of the correspondence goes to weight.
[81] Reasons, [98].
Dr Bodel’s failure to refer to three attendances on her general practitioner in mid-2015 was of little moment. Dr Bodel’s failure to specifically refer to the attendance at the commencement of 2018 (30 January 2018), which was followed by about nine months with no such complaints and a history of the resolution of symptoms, similarly does not deprive the doctor’s opinion of probative weight. The appellant’s submission that there was a lack of correspondence, such that Dr Bodel’s report was “robbed of any weight”, is rejected. The Arbitrator concluded that there was a sound basis for the acceptance of Dr Bodel’s opinions. On the evidence this conclusion was well open to her. The appellant has not demonstrated error on the basis of the principles in Raulston, described above.
Ground No. 1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant refers to the finding in the reasons at [91], that “the medical and lay evidence clearly show an increase in knee symptoms and the need [for] treatment after the fall”. The appellant submits this is factually incorrect. The lay evidence is that of the respondent. Her statement did not deal with her knee problems prior to the fall. It follows that there was no lay evidence to show an increase. The appellant submits it is for the patient to provide evidence concerning symptoms, not the doctor.[82]
[82] Appellant’s submissions, [1]–[3].
The appellant refers to Dr Lu’s report dated 22 November 2018, in which the doctor speaks of the respondent being “pain-free prior to the fall and now has persistent knee pain”.[83] The appellant submits Dr Lu’s notes of his consultations on 8 and 21 November 2018 (following the injury) provide no indication the doctor considered the consultations on 7 June 2015, 23 June 2015, 25 October 2017, 8 November 2017 or 13 January 2018 (prior to the injury). It is submitted to follow that the material from Dr Lu does not clearly show an increase in knee symptoms. The appellant repeats its attack on Dr Bodel’s report and submits Dr Bodel’s opinion did not show an increase in knee symptoms. The appellant submits this factual error by the Arbitrator influenced her conclusion that the respondent had “discharged the onus of establishing a material contribution”.[84]
[83] AALD 11/11/19, p 6.
[84] Appellant’s submissions, [3]–[6].

Respondent’s submissions

The respondent refers to the incident report dated 9 November 2018, in which she said “I have now been experiencing more pain”. She refers to her statement at [28] to [33] in which she gives evidence of the ongoing consequences of her injury. The respondent refers to Dr Lu’s report and the history that she was “pain free” with “good function” prior to the injury. The respondent submits it was open to the Arbitrator to find that there was an increase in symptoms since the fall. She refers to Dr Qurashi’s history that most of the symptoms followed the fall. She submits the lay and medical evidence clearly showed an increase in symptoms after the injury.[85]
[85] Respondent’s submissions, [19]–[21].

Consideration

For reasons given above in dealing with Ground No. 1, statements in medical histories comprise evidence of the facts. The submission that there was no lay evidence dealing with whether there was an increase in symptoms, because the respondent’s statement did not specifically address that issue, is incorrect. There was ample evidence, found largely in the medical histories, that supported the finding made by the Arbitrator in her reasons at [91] (see [36] to [42] above). There was no error on the Arbitrator’s part in accepting the evidence which she did, dealing with knee symptoms from time to time, applying the principles discussed in Raulston. Ground No. 2 fails.

CONCLUSION

Both of the grounds having failed, the appeal is unsuccessful.

DECISION

The Arbitrator’s decision dated 4 December 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

15 June 2020