Hendrix v Accuro Homecare Pty Ltd
[2023] NSWPICPD 48
•16 August 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Hendrix v Accuro Homecare Pty Ltd [2023] NSWPICPD 48 |
APPELLANT: | Lynda Hendrix |
RESPONDENT: | Accuro Homecare Pty Ltd |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W9/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 16 August 2023 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 22 June 2022 is revoked. 2. In lieu thereof the following orders are made: 1. There is a finding that the worker sustained a consequential condition of her urinary and reproductive system as a result of the conceded work injury to the lumbar spine suffered by her on 28 April 2010. 2. The worker’s reasonable expenses payable pursuant to section 60 of the Workers Compensation Act 1987 in respect of the above injury are to include those relating to the consequential condition of her urinary and reproductive system. 3. The matter is remitted for referral to a Medical Assessor to assess the worker’s permanent impairment: Date of injury: 28 April 2010 Body parts: Lumbar spine Left lower extremity (foot) Right lower extremity (foot) Urinary and reproductive system 4. The documents to be sent to the Medical Assessor are: (a) Application to Resolve a Dispute, (b) Reply, and (c) Application to Admit Late Documents dated 16 June 2022. |
CATCHWORDS: | WORKERS COMPENSATION – The requirements of expert evidence in the Commission: application of South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351; Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764; fact finding: Nguyen v Cosmopolitan Homes [2008] NSWCA 246; the Commission as a specialist tribunal: MMI Workers Compensation (NSW) Ltd v Kennedy (1993) 9 NSWCCR 482; ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18; Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355; duty to give reasons: Hume v Walton [2005] NSWCA 148; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr G Barter, counsel | |
| Law Partners Personal Injury Lawyers | |
| Respondent: | |
| Mr F Doak, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms C McDonald |
DATE OF MEMBER’S DECISION: | 22 June 2022 |
INTRODUCTION AND BACKGROUND
Ms Hendrix (the worker/appellant) was employed by Accuro Homecare Pty Ltd (the employer/respondent) as a field officer. She worked casually for up to 30 hours per week, providing homecare to the disabled. She would shower clients, take them to appointments, dress them, cook, clean and provide general care. On 28 April 2010 while attending a client’s house she fell on a flight of stairs. She stated that by three days later she found she was aware of significant low back pain with radiation to the left leg and foot.[1] She saw her general practitioner and came under the care of Dr Coughlan, a neurosurgeon. He advised conservative care. In June 2010 the worker resumed work. She stated that although she was cleared for restricted duties she was given physical duties that included lifting paraplegic clients. She said that she struggled and worked through pain in her lower back. Dr Macauley, her general practitioner, put her off work from about 21 September 2011. She described constant pain in the lower back, left leg and foot. Dr Coughlan recommended surgery. The employer’s insurer denied liability. The worker took proceedings in the then Workers Compensation Commission of New South Wales[2] and following a telephone conference the employer’s insurer (the insurer) accepted liability for the proposed treatment.[3]
[1] Worker’s statement 11.10.21, [9]–[14], Application to Resolve a Dispute (ARD), pp 2–3.
[2] Worker’s statement, [15]–[22].
[3] Certificate of Determination 9.8.12, matter no. 1933/12.
Dr Coughlan performed surgery involving fusion at L3/4 and L4/5 on 7 September 2012.[4] The worker subsequently limped and developed foot pain. The insurer ultimately accepted that the worker’s altered gait had aggravated plantar fasciitis. Investigations showed a disc protrusion at L2/3 with right L2 nerve root involvement.[5] On 22 May 2014 Dr Coughlan performed surgery involving L2/3 anterior interbody fusion.[6] The worker stated that she developed problems with urinary incontinence following this surgery. There were ongoing symptoms in the back and feet.[7] The worker underwent surgery to her right foot in October 2015 and January 2016. She said that she had difficulty with pain in the feet and lower back, together with worsening urinary incontinence. She underwent surgery to her left foot in August 2016. In late 2016 the worker saw two urologists, Dr Ruthven and Dr Jarvis, who she said did not assist this problem. She came under the care of Dr Manning, a urogynaecologist.[8]
[4] ARD, p 82.
[5] Worker’s statement, [27].
[6] ARD, pp 86–88.
[7] Worker’s statement, [33]–[40].
[8] Worker’s statement, [41]–[52].
The worker continued under the care of Dr Coughlan. He said there were stress fractures at the level L5/S1, which was significantly unstable. He recorded a history of intermittent bowel and bladder dysfunction. He operated on 5 and 6 March 2018, a procedure described as a 360-degree fusion at L5/S1. He said the worker initially progressed “extremely well”. On 11 October 2018 there was “recent worsening of her leg paraesthesias”.[9] The worker stated that from November 2018 to October 2019 conservative treatment gave her “temporary relief from the constant pain in [her] lower back and feet and [her] ongoing urinary incontinence”. She said the lower back symptoms had “a significant impact on [her] ability to carry out [her] daily duties, as [she] cannot bend, kneel, twist or squat. [She could] fall doing this.”[10] The insurer ultimately accepted liability for the various surgical procedures.
[9] ARD, pp 184–189.
[10] Worker’s statement, [57].
The worker, at her solicitors’ request, was assessed for the purposes of a claim for permanent impairment by Dr Bentivoglio, orthopaedic surgeon, who reported on 6 August 2020.[11] He assessed whole person impairment in respect of the worker’s back, after a one-tenth deduction on account of pre-existing degenerative change, at 24 per cent. He additionally assessed permanent impairment at 2 per cent for each foot, relating to plantar fasciitis. The worker was also assessed by Dr Rochford, a urologist, in relation to her urinary symptoms. Dr Rochford reported on 13 November 2019.[12] He said the bladder incontinence followed the second surgical procedure carried out by Dr Coghlan on 22 May 2014; there was injury to the spinal cord, causing a cauda equina lesion, as a result of the surgery. The incontinence was a complication of that surgery. Dr Rochford assessed 30 per cent permanent impairment in respect of the worker’s urinary and reproductive systems. The permanent impairment claim, when the various assessments were combined, was for 49 per cent whole person impairment.[13] A claim on this basis was made on 21 January 2021.[14]
[11] ARD, pp 49–57.
[12] ARD, pp 43–48
[13] ARD, p 56.
[14] ARD, pp 26–27.
The insurer issued a dispute notice dated 15 March 2021.[15] It declined liability for the “urological condition”, relying on a report of Dr Wines, a urologist who it had qualified, dated 19 February 2021. Dr Wines considered these “symptoms were the legacy of [the worker’s] previous pregnancies and are unlikely to be of any significant [sic] in relation to [her] workplace injury”.[16] The current proceedings rely on the fall that occurred on 28 April 2010. They claim the cost of treatment by Dr Ruthven and Dr Manning (both of whom treated the urological condition) and permanent impairment compensation in respect of the 49 per cent assessment.
[15] ARD, pp 22–25.
[16] ARD, p 23.
The matter was listed for hearing on 6 April 2022. Mr Barter appeared for the worker and Mr Doak for the employer. The Member said that documents from Dr Manning, pursuant to a Direction for Production Order, were produced “recently” before the hearing and the parties wished to access these before making submissions. The Member, in those circumstances, made an order for written submissions. The worker lodged written submissions dated 20 April 2022. The employer lodged written submissions dated 4 May 2022. The worker lodged submissions in reply dated 10 May 2022. The Commission issued a Certificate of Determination dated 22 June 2022 which was accompanied by 16 pages of reasons.[17] The Member noted that the only matter in dispute was whether “the condition causing urinary incontinence is a consequence of [the worker’s] back injury”. The Member said that “late documents” were provided when requested for the purpose of her decision. She said the employer raised no dispute about the provision of these documents and she therefore took them into account.[18]
[17] Hendrix v Accuro Homecare Pty Ltd [2022] NSWPIC 315 (the reasons).
[18] Reasons, [4]–[5].
There was an award in the employer’s favour in respect of the consequential condition of the urinary and reproductive system, and on the related claim for expenses in respect of treatment of the urinary condition, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The remaining elements of the lump sum claim (the lumbar spine, left lower extremity (foot) and right lower extremity (foot)) were remitted for referral to a Medical Assessor.
THE MEMBER’S REASONS
The Member referred to the lumbar surgery carried out by Dr Coughlan in 2012 and 2014. She noted it was accepted that bilateral foot pain resulted from altered gait. She noted that “urinary issues” were first noted in Dr Macauley’s notes on 10 September 2015. There was a referral to Dr Manning, although no evidence that the worker saw Dr Manning at that time. Dr Coughlan noted “intercurrent bladder problems” in a report dated 14 September 2015. On 30 March 2016 Mr McMinimee, a physiotherapist, noted the worker was seeing Dr Van Therie “[r]egarding bladder function due to multiple surgeries”. The Member observed that Dr Coughlan wrote to the insurer on 21 July 2016, saying “the spine issues are directly related to [the] workplace injuries and therefore the bladder concerns are secondary to that”.[19]
[19] Reasons, [9]–[17].
The Member referred to Dr Ruthven’s investigations. Dr Ruthven on 14 September 2016 said the worker was being referred to “Tom Jarvis at Prince of Wales to see whether there is a neuropathic component to her bladder dysfunction at this time”. The Member referred to Dr Ruthven’s report dated 13 October 2016, in which he acknowledged that spinal cord injury could influence bladder function but said “[a]t this point there is no neurological evidence that has occurred … My impression is that her current bladder problems are independent of her recent surgeries”.[20] The Member referred in some detail to correspondence from practitioners investigating the bladder difficulties.
[20] Reasons, [19]–[22].
The Member noted the worker was referred to Dr Manning, who reported on 10 August 2017. Dr Manning saw the worker on 16 October 2018, subsequent to the L5/S1 surgery performed on 5 and 6 March 2018. The Member referred to a report of that date, from Dr Manning to the insurer, which referred to a loss of sensation “suggestive of neurogenic injury”. The doctor said “[g]iven this picture much of her leakage is likely related to her back injury and subsequent back surgeries”.[21]
[21] Reasons, [29]–[31], [35]–[38].
The Member referred to Dr Rochford’s report to the worker’s solicitors dated 13 November 2019. Dr Rochford described the urinary incontinence as “a complication of the spinal surgery”. He said the injury to the spinal cord caused a cauda equina lesion. The Member commented that Dr Rochford “did not explain his opinion.” The Member referred to the report of Dr Wines (qualified by the insurer) dated 19 February 2021. Dr Wines considered the condition “was not causally related to the back injury”. Dr Wines considered the urodynamic study was “consistent with [the worker’s] history of pregnancies” and there was “no urodynamic evidence of neurological impairment of bladder function which would be the case with neurological trauma”.[22]
[22] Reasons, [40]–[46].
The Member summarised the parties’ submissions. Mr Barter referred to the worker’s statement and the temporal connection between the spinal surgery and the first experience of incontinence. He referred to Dr Rochford’s “reasoned explanation” and the inferential support from Dr Coughlan’s report dated 14 December 2017. Dr Manning considered there was a “neurogenic component”. Mr Barter submitted it was unclear whether Dr Wines’ conclusion of “stress incontinence” excluded a contributing neurogenic component. Mr Barter referred to the reasons of Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd[23] at [82] of that decision. He submitted that if symptoms resulted from both stress incontinence and a neuropathic component, the degree of contribution was a matter for the Medical Assessor.[24]
[23] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock).
[24] Reasons, [47]–[51].
The Member referred to Mr Doak’s submissions. He submitted Dr Wines was the only doctor who identified that the first referral for urinary incontinence was two years after the second back surgery. The worker’s statement did not identify when the first such symptoms occurred other than to say it was after the second surgery. The first such entry in the general practitioner’s notes was on 26 May 2016, which contradicted the assertion of a close temporal connection. Mr Doak submitted that Dr Manning did not set out a detailed history of the onset of symptoms, she said the back surgery “suggested a neurogenic component”. She did not refer to the diagnostic significance of the tests she undertook and did not provide reasoning for her conclusion. Dr Manning, it was submitted, dealt with causation on a “wrapped up history of ‘several surgeries’” without analysis of the timing of each surgery and the onset of urinary symptoms. Mr Doak submitted that Dr Manning did not provide a “reasoned analysis” to support her conclusion. He referred to r 73 of the Personal Injury Commission Rules 2021 (the Rules), together with Hancock and other authorities. Mr Doak was critical of Dr Rochford’s report. The doctor’s history of onset was vague, he did not comment on the significance of Dr Jarvis’ test results, he did not provide any support for his view that there had been a cauda equina lesion, this was “a mere assertion”. Mr Doak submitted the worker could not satisfy the Commission that the surgery made a material contribution to her urinary symptoms.[25]
[25] Reasons, [53]–[57].
Mr Barter, in reply, submitted that the absence of recorded symptoms does not lead to a conclusion that symptoms were not present between 2014 and 2018. He referred to the decision of Phillips P in Westpac Banking Corporation v Chauhan.[26] He submitted the evidence as a whole supported the argument that urinary symptoms resulted from “the back injury through multiple surgeries”.[27]
[26] [2019] NSWWCCPD 63 (Chauhan), [81].
[27] Reasons, [58]–[60].
The Member referred to the decision of Kirby P in Kooragang Cement Ltd v Bates[28] and to that of Roche DP in Murphy v Allity Management Services Pty Ltd.[29] The Member said there was a “reasonable temporal connection” between the surgery in 2014 and the first complaints of urinary problems, made to Dr Macauley in 2015. On 14 September 2015, Dr Coughlan described the bladder problems as “intercurrent with her other conditions”. Dr Ruthven, on 13 October 2016, responded to a request from the insurer for an opinion on causation. Dr Ruthven conceded that a spinal cord injury could impact bladder function but said there was no evidence that such an injury had occurred. His impression was that the urinary problems were not related to the surgery.[30]
[28] (1994) 35 NSWLR 452 (Kooragang), 463–464.
[29] [2015] NSWWCCPD 49 (Murphy), [58].
[30] Reasons, [67]–[71].
The Member said that urodynamic studies were not undertaken until December 2016. She said that the worker “apparently had a copy of Dr Jarvis’ report though it was not provided to [the employer’s] solicitors until after the conciliation conference and arbitration conference, nor to me. That omission was unexplained.” The Member discussed the medical evidence from the treating doctors, saying:
“74. The determination of this question is made more difficult by the fact that many of the doctors expressed a tentative view then said that they had referred [the worker] elsewhere – Dr Coughlan said that he had referred [the worker] to Dr Ruthven, Dr Ruthven referred [the worker] to Dr Jarvis. Perhaps because [the worker] did not see him again, there is no report from Dr Ruthven after the date of Dr Jarvis’s report so that it is not possible to discern what his concluded opinion was and whether he still adhered to the view that the bladder problems were independent of her back surgery. There is no report about any treatment Dr Jarvis proposed, even though the other evidence suggests that he proposed surgery.
75. The only relevant comment by Dr Coughlan after the referral to Dr Ruthven was in his report dated 14 December 2017. He did not express a view about causation of bladder and bowel dysfunction although the inference is that there is some relationship to her back condition. His suggestion that surgery might be required sooner rather than later presumably relates to the fusion proposed in early 2018, though it is unclear. I do not agree that report bears the weight that Mr Barter submitted that it carried.
76. Mr Doak was correct to observe that Dr Manning’s reports are carefully and somewhat tentatively expressed. However she did state on 16 October 2018 that [the worker] had a neurogenic bladder. She did not explain what that meant, [which] is understandable when the report was addressed to Dr Macauley and provided for the purpose of treatment.
77. Hancock dealt with the weight to be given to medical reports and confirmed that a report needs to generally comply with the rules for expert evidence to the extent that it provides a proper basis for the Commission’s decisions. The reports of the treating doctors do not provide that basis.”[31]
[31] Reasons, [74]–[77].
The Member quoted from the reasons of McColl JA in South Western Sydney Area Health Service v Edmonds.[32] The Member described this as “the standard to be expected of an expert report in the Commission”.[33] She distinguished the decision of Chauhan on which the worker had relied. She dealt with the probative force of the evidence from medicolegal urologists:
“81. In a case where there are so many short reports written by treating doctors for treating doctors, it might be expected that a medico-legal report would provide the explanation that would allow me to evaluate the causal chain. Dr Rochford did not provide that explanation. He said that [the worker] had suffered an injury to her spinal cord causing a [cauda] equina lesion as a result of the surgery and that urinary incontinence was a result. His opinion is unhelpful because it is not explained. It is a bare ipse dixit. The same can be said for his bald diagnosis of ‘stress urinary incontinence and neurogenic bladder’. Dr Rochford was asked many questions but provided only a short response to each one. His responses are repetitive rather than illuminating.
82. Dr Wines report similarly lacks an explanation for his opinion.”
[32] [2007] NSWCA 16; 4 DDCR 421 (Edmonds), [130]–[132].
[33] Reasons, [78].
The Member quoted from Nguyen v Cosmopolitan Homes.[34] She concluded that she did not “feel an actual persuasion that the urological condition suffered by [the worker] resulted from the injury to her back on 28 April 2010”.[35] The claim in respect of medical and related expenses for treatment of the urological condition failed. The matter was referred for assessment of permanent impairment in respect of the lumbar spine and the left and right lower extremities.
[34] [2008] NSWCA 246 (Nguyen), [55], reasons, [83].
[35] Reasons, [84].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
The appellant’s submissions on this appeal, under the heading “New Evidence”, state the appellant “may need to adduce further evidence”. It states that evidence, part of an Application to Admit Late Documents dated 16 June 2022, may not have been brought to the attention of the Member who dealt with the matter. The material that was before the Commission at first instance was attached to the Appeal documentation, including the application dated 16 June 2022 and its attachments. The Commission issued a Direction dated 21 July 2022 directing the appellant to advise whether an application to rely on fresh, additional or substituted evidence was pressed in the appeal, and if so to serve appropriate documentation. The appellant’s solicitors forwarded an email, with accompanying documentation, to the Commission on 22 July 2022. It listed the material that was previously attached to the Application to Admit Late Documents dated 16 June 2022. It again stated there was concern that the appellant’s application dated 16 June 2022 may not have been brought to the Member’s attention. It noted the relevant late documents application was registered in the Commission on 17 June 2022. It said if the documents were not before the Member, the appellant did not know why.[36]
[36] Email from appellant’s solicitors dated 22 July 2022.
The Member’s reasons dated 22 June 2022 indicate the late documents were provided to her “when requested for the purpose of this decision”. The Member’s reasons, referring to “Procedure”, say that the employer did not dispute the provision of the documents. The Member specifically says that, in the absence of any objection to the documents by the employer, she took the documents into account. The Member’s reasons specifically list the documents that were “in evidence and considered in making this determination”.[37] Those documents include the Application to Admit Late Documents dated 16 June 2022. The material attached to the application dated 16 June 2022 is listed in a schedule forming part of that application. It is consistent with the material listed in the email from the appellant’s solicitors dated 22 July 2022, referred to above. There is simply no basis for a conclusion that the material attached to the application dated 16 June 2022 was not before the Member when she dealt with the matter. It follows that the material, attached to the email from the appellant’s solicitors dated 22 July 2022, does not constitute “[e]vidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against”. An application does not lie pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of it.
[37] Reasons, [4]–[5], [7].
THRESHOLD MATTERS/INTERLOCUTORY
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.
In Licul v Corney[38] Gibbs J (as his Honour then was) said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (footnotes omitted)
[38] [1976] HCA 6; 180 CLR 213, [11].
The appellant submits that “the determination that impairment of the urinary and reproductive system is not a consequence of injury is final”. It submits that leave pursuant to s 352(3A) of the 1998 Act is not required.[39] The respondent submits the Member’s decision was not interlocutory.[40] I accept that the appeal does not require leave on this basis.
[39] Appellant’s submissions, [2.6].
[40] Respondent’s submissions, [4].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) Failing to find that the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010 (mistakenly recorded as 29 April 2010). (Ground No. 1)
(b) Failing to give adequate reasons for her failure to find the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010. (Ground No. 2)
(c) Failing to include the worker’s urological condition in her referral to a Medical Assessor for assessment for her whole person impairment. (Ground No. 3)
(d) Such other grounds as may appear from the transcript of evidence when it becomes available.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
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,[41] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[42] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[43]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[44]
[41] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[42] (1966) 39 ALJR 505, 506.
[43] [1996] HCA 140; 140 ALR 227.
[44] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[45] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[46]
“… 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.”[47]
[45] [2017] NSWWCCPD 5, [67].
[46] [2001] FCA 1833, [28].
[47] Raulston, [20].
In Northern NSW Local Health Network v Heggie[48] 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”.
THE MEDICAL EVIDENCE
The parties’ medical evidence
[48] [2013] NSWCA 255; 12 DDCR 95, [72].
Dr Ruthven’s reports
Dr Coughlan referred the worker to Dr Ruthven, a urologist, who reported back to Dr Coughlan on 14 September 2016.[49] Dr Ruthven recorded a history of bladder dysfunction, with “urge and stress incontinence” for many years. He said the worker needed to see Dr Jarvis “to see whether there is a neuropathic component to her bladder function at this time”. He noted the worker “has had surgery twice on her back for sciatica”. Dr Ruthven reported to the insurer on 13 October 2016.[50] He said the worker’s “bladder issues are still being investigated”. He was awaiting a urodynamic study from Prince of Wales Hospital. He said:
“The bladder innervation is transmitted by the S 2, 3, 4 segments.
Any spinal cord injury either spontaneous or iatrogenic or post surgery could have an influence on the bladder function. At this point in time there is no neurological evidence that that has occurred.
My impression is that her current bladder problems are independent of her recent surgeries.”
[49] ARD, p 105.
[50] Reply, p 97.
Dr Jarvis – Department of Urology, Prince of Wales Hospital
This report was dated 3 December 2016.[51] It recorded a history that “urinary symptoms have been present for 2 years” and that they “worsened following anterior spinal surgery”. This would date the urinary symptoms from about late 2014. It recorded that the worker was on “long term steroids (prednisone 15 mg daily)”. The report largely dealt with a urodynamic study and recommendations for treatment. The study included: “Upon standing the bladder remained stable, however there was opening of the bladder neck.” The report did not engage at any length with the cause of the urinary problems.
[51] Application to Admit Late Documents (AALD) 16/6/22, p 1.
Dr Manning’s reports
Dr Manning saw the appellant as a specialist urogynaecologist on referral from the appellant’s general practitioner, Dr Macauley. Dr Manning’s reports, with one short exception, were directed to Dr Macauley. The initial report was dated 10 August 2017.[52] There was a history of “urinary incontinence since 2012 but the problem worsened recently”. There was a relatively detailed description of urinary symptoms that does not need to be recited at length in these reasons. It included a history of “2 uncomplicated vaginal deliveries”. Dr Manning recorded two testing procedures, “free uroflowmetry” and “subtracted cystometry”. The report referred to urodynamics demonstrating “stress leakage standing”. The doctor noted “the leakage problem has only been very recent”. She said that “bladders are complicated and on occasions the urodynamic studies do not demonstrate what is happening”. The doctor said:
“She has got lower limb neurologic symptoms from her back surgery. She has loss of sensation around the perineal area and parts of her legs. It is quite possible there is a component of neurogenic bladder although she empties well. The leakage problem has only been very recent and it worsened recently …”.
[52] AALD 16/6/22, p 18.
Dr Manning next reported on 16 October 2018.[53] She noted she had not seen the worker for “over 12 months”. There was “a severe urinary incontinence issue that has worsened”. The doctor recorded there had been “several back surgeries which suggest a neurologic component to the urge, she has had loss of sensation in the saddle distribution last time I saw her and in her feet”. The doctor recorded that the worker said she “feels that the leakage has worsened”. The doctor recorded the results of free uroflowmetry and subtracted cystometry. The doctor wrote “In conclusion: There is a neurogenic bladder. She empties well.” Dr Manning made various suggestions for management. On the same date the doctor also reported to the insurer.[54] She wrote:
“She has loss of sensation in the saddle area suggestive of neurogenic injury. Given this picture much of her leakage is likely related to her back injury and subsequent back surgeries. I enclose a copy of her last consultation letter.”
[53] AALD 16/6/22, pp 8–9.
[54] AALD 16/6/22, p 10.
Dr Manning next reviewed the worker and reported on 15 November 2018.[55] Most of the report involved suggestions for treatment. The doctor reported:
“I reviewed [the worker] today. She trialled a Contiform which didn’t help her incontinence at all. The leakage obviously relates greatly to her neurogenic bladder.”
[55] AALD 16/6/22, p 7.
Dr Rochford’s report
Dr Rochford, urologist, examined the worker at the request of her solicitors on 12 November 2019 and reported on 13 November 2019.[56] The doctor recorded a history of the worker’s fall on 28 April 2010, landing on her buttocks and back. She had difficulty getting out of bed on 1 May 2010 and saw her general practitioner. Dr Rochford summarised the history of lumbar surgery following the subject fall. He said the initial fusion of L2/3 and L3/4 was carried out in August 2011. The second procedure, fusion at L4/5, was performed on 22 May 2014. The third fusion at L5/S1 was carried out on 5 and 6 May 2018. Dr Rochford described incontinence “following the second surgery, she also noted that she had numbness in both buttocks and around the anal area … she had an onset from that time of faecal soiling after opening her bowels”. On physical examination Dr Rochford noted “numbness to touch in both buttocks and around the perianal region”.
[56] ARD, pp 43–48.
Dr Rochford described the diagnosis, restricted to “matters urological”, as “problems with stress urinary incontinence and neurogenic bladder”. The doctor specifically referred to the “numbness in the buttocks and perianal area as well as the urinary incontinence and faecal soiling”. Dr Rochford continued “[s]he has sustained injury to her spinal cord causing a cauda equina lesion as a result of the surgery”. The doctor said the urinary incontinence was a complication of the spinal surgery, which in its turn resulted from the workplace injury to the back. The doctor noted that the available range of permanent impairment assessment for ‘Urinary and Reproductive Systems’ was 16 to 40 per cent. He assessed the worker at 30 per cent. The doctor responded to a range of questions dealing with other issues such as work capacity, treatment needs and domestic assistance requirements.
Dr Coughlan’s reports
Dr Coughlan furnished serial reports to Dr Macauley and the insurer. Dr Coughlan’s operation notes confirm the second lumbar surgery, L2/3 anterior fusion, was carried out on 22 May 2014.[57] Dr Coughlan thereafter reported on a regular basis to Dr Macauley and the insurer regarding the worker’s progress.[58] On 14 September 2015 Dr Coughlan said there was a “solid fusion”. The doctor also referred to “some intercurrent bladder problems and I have explained to her the importance of monitoring this”.[59] On 1 December 2015 Dr Coughlan reported there were “ongoing issues with her bladder but this goes back for at least a year”.[60] On 28 January 2016 Dr Coughlan reported the worker was to see Professor Vancaillie regarding her chronic bladder dysfunction”.[61] There was also “chronic longstanding back and leg pain”. Dr Coughlan reported on 12 April 2016 that the worker had seen Professor Vancaillie, although Dr Coughlan had no correspondence from him.[62] On 30 June 2016 Dr Coughlan said “the biggest issue at the moment is her bladder dysfunction”. He said that seeing Dr Vancaillie in Sydney was “quite difficult in terms of travelling”. The worker was “very keen to try and get her bladder issue sorted out”. Dr Coughlan said he had “requested authorisation from the insurer to be reviewed by Steve Ruthven in terms of discussion options for long term ongoing bladder dysfunction”. Dr Coughlan expressed the opinion that he had “the impression that some of her symptoms are neurogenic given her long and convoluted course with her spine”.[63]
[57] ARD, p 164.
[58] ARD, pp 165–174.
[59] ARD, p 175.
[60] ARD, p 176.
[61] ARD, p 177.
[62] ARD, p 178.
[63] ARD, p 179.
Dr Coughlan reported to Allianz on 21 July 2016.[64] He described “occasional intermittent leg pain” as “[o]ne of the main issues”. He said “probably the biggest issue at the moment is her bladder dysfunction. … The spine issues are directly related to her workplace injuries and therefore the bladder concerns are secondary to that. … I do believe that [the worker’s] current condition is directly related to her workplace injury. [The worker] has had ongoing and multiple pain issues since the workplace injury that she did not have prior to the injury.” Asked if there were “any non-work related factors … affecting [the worker’s] current condition” the doctor responded “Not that I am aware of.” The doctor said “If you would like any further information regarding [the worker] please do not hesitate to contact my rooms.”
[64] ARD, pp 100–101.
Dr Coughlan, reporting to Dr Macauley and the insurer on 23 March 2017, described the worker as “currently working through some issues with her urinary incontinence and she did see Dr Ruthven and discussed the option of a sling procedure”.[65] On 18 June 2017 Dr Coughlan said the worker “continues to have very significant back pain”. He recommended extending the fusion to L5/S1.[66] Reporting on 14 August 2017,[67] Dr Coughlan referred to stress fractures at L5/S1 and described the L5/S1 disc as “significantly unstable”. He recommended further surgery. Dr Coughlan reported again to Dr Macauley and the insurer on 14 December 2017.[68] Dr Coughlan said the worker’s symptoms “have got progressively worse”. She complained of bilateral buttock pain, severe back pain and leg pain. The doctor said there was a “pedicle fracture at L5 and a pars fracture on the other side so there is marked L5/S1 instability. She is due to have the fusion done early in 2018.” Dr Coughlan additionally recorded:
“She also has intermittent bladder and bowel dysfunction and I have explained to her that if she gets worsening of this she may have to go to an emergency department and consider surgery sooner rather than later. But at the moment her bladder and bowel function is stable with intermittent dysfunction and this has been the case for a long time.”
[65] ARD, p 107.
[66] ARD, p 182.
[67] ARD, p 109.
[68] ARD, p 110.
On 5 July 2018 Dr Coughlan described the fusion performed at L5/S1 as “very solid” with “no evidence of any instability”. He thought the worker was “progressing extremely well”.[69] On 11 October 2018 Dr Coughlan referred to “recent worsening of her leg paraesthesias” and requested “nerve conduction studies to ensure that she does not have peripheral neuropathy”.[70] On 9 February 2019 the doctor said studies showed “only very mild axonal neuropathy”. He recommended special footwear. He said the worker “should also continue with acupuncture in the interim for her chronic neuropathic pain”.[71] On 17 February 2019 Dr Coughlan recorded right sided leg pain, by that stage “very mild residual pain. This radiates down the lateral aspect of the right leg into the top of the foot in the L5 dermatome but there is no evidence of any foot drop.”[72] On 7 April 2019 Dr Coughlan described worsening left and right leg pain. He suggested “an updated CT”. He said there were “major issues with neuropathic pain in her feet”. He suggested special footwear “to help her with her chronic neuropathic foot pain bilaterally”.[73]
[69] ARD, p 188.
[70] ARD, p 189.
[71] ARD, p 190.
[72] ARD, p 191.
[73] ARD, p 192.
Dr Macauley’s certificates
Dr Macauley’s certificate dated 24 April 2017,[74] describing the worker’s management plan, included the following:
“… reported increased low back pain; chronic incontinence – urological assessment ongoing, recent exacerbation of LBP reported to neurosurgeon and fractures found on investigation; has had trial of nerve stimulator – permanent placement being considered”.
[74] ARD, pp 472–474.
Dr Macauley’s certificate dated 1 February 2018[75] included the following:
“… reported increased recent low back pain; chronic incontinence – urological assessment ongoing, recent exacerbation of LBP reported to neurosurgeon and fractures found on investigation; neurosurgeon recommends surgical treatment of low lumbar spine fracture; planned spinal surgery on 5/2/18 …”.
[75] ARD, pp 475–477.
Dr Macauley’s certificate dated 23 April 2018[76] was relevantly in the same terms.
[76] ARD, pp 478–480.
Ms Lun’s report
The worker was assessed by an occupational therapist, Ms Lun, who reported to the insurer on 19 November 2019.[77] She conducted a functional assessment in relation to domestic assistance. Dealing with ‘self-care’ Ms Lun recorded the worker suffered from “Urinary and Faecal incontinence due to ongoing neurogenic bladder since her L3/4 Artificial Disc Replacement in 2014. She is depending on incontinence pads day and night since.”
[77] ARD, pp 127–138.
Dr Wines’ report
Dr Wines, a urologist, examined the worker at the request of the insurer’s solicitors on 12 February 2021 and reported on 19 February 2021.[78] Dr Wines recorded that following her injury the worker initially had a fusion procedure at L2/3 with “only marginal improvement”. He recorded that on 30 October 2013 the worker underwent fusion at the levels L3/4 and L4/5. He recorded that following this second procedure the worker “noticed increasing urgency” and a sensation of “ants crawling on my legs”. He recorded that at about this time the worker also developed problems with her feet and underwent a plantar fascia release by Dr Hunter. Dr Wines recorded that in September 2016 the worker was referred to Dr Ruthven for her urinary symptoms and then to Dr Jarvis for urodynamics studies. Dr Wines described these as showing “the presence of pure stress incontinence without evidence of any bladder instability”.
[78] Reply, pp 144–147.
Dr Wines referred to the worker’s referral to Dr Manning. Dr Wines described the medication prescribed as “without benefit which was not surprising in view of the urodynamic study”. Dr Wines described the procedure on 5 and 6 March 2018 as “first anterior, then posterior spinal fusion (?L5/S1) with incontinence after both procedures. She also mentioned some faecal leak.” Dr Wines said that “[d]istal pulses and reflexes were present. Examination of the sensation of her perianal and perineum areas was inconsistent.” Dr Wines’ diagnosis was “Pure Urinary Stress Incontinence”. The doctor said:
“This lady appears to suffer from pure stress incontinence without bladder instability as demonstrated by Dr Jarvis’s urodynamics study. This would be a legacy of the previous pregnancies and unlikely to be of any significance in relation to her alleged work injury.”
Asked to consider whether there was a causal relationship between the injury on 28 April 2010 and the urological condition, the doctor said:
“No. History of pregnancies. Urodynamic study showed pure stress incontinence compatible with this. No urodynamic evidence of neurological impairment of bladder function as would be the case with neurological trauma.”[79]
[79] Reply, p 146.
Dr Wines, asked whether he agreed with Dr Rochford’s assessment of whole person impairment, said:
“I do not agree with the assessment made by Dr Rochford in his report of the 13th of November 2019. I am not aware of any neurological finding which might confirm significance as far as the described injury is concerned. The urodynamic finding by Dr Jarvis confirms the presence of pure stress incontinence and no evidence of any neurological contribution from the alleged accident.
My only proviso concerning this is that she has had further surgery following urodynamic studies so this probably should be repeated by Dr Jarvis to be certain of any complicating factor.”[80]
GROUND NO. 1
[80] Reply, p 147.
Appellant’s submissions
The appellant accepts that the decision in Nguyen correctly describes the degree of satisfaction required to arrive at a factual finding. The appellant submits that, if the Member correctly assessed the medical evidence, “she would have been so satisfied”.[81] The appellant submits the Member must have required “a degree of exactitude inconsistent with the authorities”. The appellant submits the Member erred in fact, giving too little weight to the evidence in the appellant’s case and “undue weight to an unwarranted perceived shortfall in that evidence”.[82]
[81] Appellant’s submissions, [5]–[6].
[82] Appellant’s submissions, [7]–[8].
The appellant refers specifically to the evidence of Dr Rochford (qualified by the appellant’s solicitors). The appellant quotes the following passage from Dr Rochford’s report dated 13 November 2019:
“Causation
a) The relationship between the condition found on examination and the injuries sustained.
She had the onset of bladder incontinence following the second surgical procedure carried out by Dr Marc Coughlan on 22 May 2014. She had numbness in the buttocks and perianal area as well as the urinary incontinence and faecal soiling. She has sustained injury to her spinal cord causing a cauda equina lesion as a result of the surgery.
b) Whether our client’s employment was the main contributing factor to our client’s subject injury and/or condition, subsequent incapacity and need for treatment.
In response to this, the reason for her spinal surgery was because of the back injury sustained in the workplace injury. Urinary incontinence was a complication of that spinal surgery.”[83]
[83] ARD, p 46.
The appellant’s submissions identify the following explanation of Dr Rochford’s opinion, in the above:
(a) The worker suffered a cauda equina lesion as a result of her surgery.
(b) The surgery addressed the spinal cord damage suffered in the accepted injury.
(c) At least part of the cause of the worker’s incontinence was damage in the nature of a cauda equina lesion.
(d) The conclusion that urinary incontinence was a complication of that spinal surgery is based on the above.
(e) The diagnosis of “stress urinary incontinence and neurogenic bladder” is based partly on the opinion of Dr Jarvis (stress – see p 44 of the ARD) and partly on Dr Rochford’s own expertise (neurogenic bladder).
(f) The Commission is a “specialised jurisdiction”. It should be familiar with the role of the spinal cord and cauda equina in the nervous system.[84]
[84] Appellant’s submissions, [12]–[13].
The appellant refers to other evidence which is submitted to support her case on this point. Dr Coughlan, in his report dated 21 July 2016, said “I am under the impression that some of her bladder symptoms are neurogenic given her long and convoluted course with her spine”.[85] Dr Manning, reporting on 16 October 2018, said “[s]he has had several back surgeries which suggest a neurologic component to the urge”.[86] The appellant submits that Dr Manning, following repeated urodynamic studies carried out on 16 October 2016, reported on 15 November 2018 that “[t]he leakage obviously relates greatly to her neurogenic bladder”.[87] The appellant submits that Dr Jarvis did not “exclude a neurogenic contribution to the [w]orker’s urological condition”.[88]
[85] ARD, p 100.
[86] ARD, p 115.
[87] AALD 16.6.22, p 2.
[88] Appellant’s submissions, [14]–[16].
The appellant says the only competing medical evidence was from Dr Wines, in respect of whose report the Member (the appellant submits correctly) ascribed no weight. The appellant submits the Member failed to give any weight to the worker’s evidence, the worker’s credibility and reliability not being challenged. It is submitted that the evidence of the worker and Dr Manning established a fair climate for Dr Rochford’s opinion, which should have been accepted.[89]
[89] Appellant’s submissions, [17]–[19].
Respondent’s submissions
The respondent refers to the restricted nature of an appeal pursuant to s 352(5) of the 1998 Act; it is not a review or a new hearing. The respondent submits the Member correctly identified the issue before her and thoroughly analysed the medical evidence. She correctly identified the legal principles, referring to Edmonds. The Member’s rejection of the appellant’s medical evidence was “open to her and disclose[d] no error”.[90]
[90] Respondent’s submissions, [8]–[10].
The respondent refers to the appellant’s criticism of the Member’s discussion of Dr Rochford’s evidence, described by the Member as “a bare ipse dixit.” The appellant, it is submitted, merely asserts that the Member was wrong, the basis of the alleged error is not identified. The respondent refers to passages of Dr Rochford’s report (quoted at [36] to [37] above). The respondent submits this reasoning was insufficient to permit the forming of a view of its probative value, consistent with the principles stated in Edmonds. The doctor’s report, the respondent submits, fails to set out the basis for his opinion, that there was a cauda equina lesion, that it resulted from spinal cord damage due to surgery, and that urinary incontinence resulted. The respondent submits this fails to illuminate why Dr Rochford reached his conclusions, it simply “re-state[s] the bare assertions”. The respondent is also critical of Dr Rochford’s history, which fails to identify how long after the 2014 surgery the relevant symptoms commenced. The respondent submits the Member’s finding regarding the lack of sufficient explanation was open to her and discloses no error.[91]
[91] Respondent’s submissions, [11]–[14].
The respondent submits the appellant’s submission that specialised knowledge should have been applied, to assist in an understanding of Dr Rochford’s opinion, should be rejected. This would not overcome the shortcomings in the medical opinion.[92]
[92] Respondent’s submissions, [15].
The respondent refers to the appellant’s submissions at [14] to [15], which refer to Dr Coughlan and Dr Manning (see [53] above). It submits that Dr Coughlan’s statement, that he was “under the impression” that some of the bladder problems were “neurogenic”, does not explain the basis for the opinion, other than by reference to the “long and convoluted course with her spine”.[93]
[93] Respondent’s submissions, [16].
The respondent refers to Dr Manning’s report dated 16 October 2018, which stated the appellant “has had several back surgeries which suggest a neurologic component to the urge.” The respondent submits Dr Manning did not identify the basis on which she sought to draw a connection between the back surgery and the urological problems. The respondent refers to Dr Manning’s report dated 15 November 2018, addressed to Dr Macauley. The report includes the doctor’s opinion that the “leakage obviously relates greatly to her neurogenic bladder”. The respondent submits:
“If the studies made the connection obvious it was not a link that Dr Manning saw fit to share in her report in order for the Commission reach a level of satisfaction that the opinion was properly based. As such the doctor’s comment remained at the level of an unexplained assertion.”[94]
[94] Respondent’s submissions, [17].
The respondent submits:
“… the portions of the opinion of Dr Coughlan and Dr Manning support the finding that the Member made that the appellant’s medical opinion did not comply with the essential requirements for the giving of expert medical evidence and could not be relied to support a finding that the appellant’s urological condition resulted from the injury and more specifically the surgery that followed it.”[95]
[95] Respondent’s submissions, [18].
The respondent refers to the appellant’s submission that there was “nothing in Dr Jarvis’ evidence to exclude a neurogenic bladder”. It submits the “fact that Dr Jarvis did not exclude the condition does not elevate the appellant’s other medical evidence to a level of probity that it otherwise does not possess”.[96] The respondent submits the Member considered the weight to be given to the appellant’s evidence in dealing with the causation issue. It refers to the reasons at [67], [70], [71] and [73]. It submits the appellant has not identified error in her analysis.[97] It refers to the appellant’s final submission (see [31] above). The respondent submits this involved an “error of principle”. The issue was not whether the factual basis for Dr Rochford’s opinion was established, but rather whether the doctor’s opinion “was sufficiently explained to allow the Commission to evaluate and accept it”. The Member’s findings on that issue are submitted to be correct.[98]
[96] Respondent’s submissions, [19].
[97] Respondent’s submissions, [20].
[98] Respondent’s submissions, [21].
The requirements of expert evidence in the Commission
Section 43 of the Personal Injury Commission Act 2020 provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Rule 73 of the Rules provides:
“73 Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
In Hancock, Beazley JA said:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. ...
...
85 ... what was required for satisfactory compliance with the principles governing expert evidence was for [Dr Summersell’s] reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.
86. Those requirements were all satisfied. In this case, as the appellant pointed out, neither Dr Summersell’s field of specialised knowledge, nor his status as an expert, was challenged. Insofar as his opinion was based upon facts ‘observed’ by him, those facts were contained within his examination findings in his report of 29 April 2008 to Dr Barrell and the report of the MRI scan.
87. Insofar as Dr Summersell’s opinion was based on assumed facts, those matters were set out in his various reports. ...
88. The fact that the reports did not refer to the subsequent non-work related incidents did not amount to a failure to satisfy the requirements of expert evidence. As explained above, the principle in Makita does 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. ... 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.”[99]
[99] Hancock, [82]–[88], citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita).
In Hancock Beazley JA dealt with whether there was a failure to comply with “the second limb of Makita”. Her Honour referred to two reports of Dr Summersell (a treating specialist) saying:
“In each, Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes were present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work accident was responsible for the current condition of the appellant’s knee.”[100]
[100] Hancock, [90].
In the matter of Brambles Industries Limited vBell[101] there was a challenge to a medical report, on the basis it was inadmissible or of no probative value, because the doctor failed to explain why changes disclosed on an MRI scan, which he was asked to comment on, did not alter his previously expressed view. Hodgson JA said:
“… the question of admissibility as such does not strictly arise. Section 354 of the [1998 Act] states that the Commission is not bound by rules of evidence. Accordingly, this contention can succeed only if the relevant opinion of Dr Conrad was of no rational probative value, and as such, as a matter of law, of no weight. In my opinion, that result does not follow from Makita, particularly in the light of later discussions of that case in cases such as Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157, (2002) 55 IPR 354, Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1 and Paino v Paino [2008] NSWCA 276.
The expertise of Dr Conrad, the particular field of his expertise, and the location of his opinion in that field, were and are not in question. The assumed facts on which his opinion was based were sufficiently identified. It is true that he did not elaborate on reasons why the MRI scan did not alter his previous opinion, and it may have been preferable if he had done so, at least to the extent of expressly saying that in his judgment the difference between what was shown in the 2003 CT scan and what was shown in the 2008 MRI scan was consistent with the natural progression of the 2003 injury; but in my opinion his omission to give that or some other explanation went only to the degree of weight to be given to the opinion, and did not have the consequence that his opinion was of no rational probative value.”[102]
[101] [2010] NSWCA 162 (Bell).
[102] Bell, [19]–[20].
Rule 73 of the Rules is in similar terms to r 15.2 of the former Workers Compensation Commission Rules 2010, discussed in Onesteel Reinforcing Pty Ltd v Sutton.[103] Allsop P, in Sutton, said:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the [1998 Act], s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd)show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material …
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.
The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, 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, although the question whether material could or can support a factual conclusion is ultimately a question of law.”[104] (excluding references)
[103] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
[104] Sutton, [2]–[4], per Allsop P, McColl and Basten JJA agreeing.
Basten JA in Sutton referred to a decision of the Court of Appeal in AMP Capital Investors Ltd v Transport Infrastructure Development Corporation,[105] an appeal from a valuation judgment in the Land and Environment Court. Dealing with AMP Capital his Honour said:
“Hodgson JA (Bell JA and Gyles AJA relevantly agreeing) noted that reliance had been placed on Edmonds for the proposition that ‘although the Land and Environment Court was not bound by the rules of evidence ..., still there had to be material capable of rationally supporting a conclusion’: at [37]. Hodgson JA continued at [42]:
‘In this case, there plainly was some such material. There was Mr Hack’s evidence as to increased patronage, and Mr Wood’s evidence that this meant increased value in the order of five to ten per cent. Mr Wood did not back this up with any discussion of valuation principle or other reasoning, and this impacts on the weight and cogency of his evidence: Makita ...; ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [106]–[110]. However, Mr Wood was an expert valuer, and in my opinion his opinion was admissible; and although the weight of the evidence may be considered slight because of the lack of reasons, it was nevertheless material capable of rationally supporting a conclusion.’”[106]
[105] [2008] NSWCA 325; 163 LGERA 245 (AMP Capital).
[106] AMP Capital, [42].
In Australian Securities and Investments Commission v Rich Spigelman CJ said:
“The focus of attention - the ‘prime duty’ - is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.”
And:
“An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”[107]
[107] [2005] NSWCA 152; 218 ALR 764 (Rich), [105] and [170].
In Hancock Beazley JA referred to the passage from Rich at [105] (the first passage quoted immediately above) and said “I accept this analysis, which I consider to be clearly correct.”[108]
[108] Hancock, [77]–[78].
In HammondCare v Calka Roche AP, after referring to the passage from Rich quoted immediately above, said: “[i]n other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports”.[109]
[109] [2016] NSWWCCPD 2, [47].
In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd the Full Court of the Federal Court said:
“Further, we do not accept the proposition inherent in much of what the appellants have said, that every opinion in an expert’s report must be supported by reference to an appropriate authority. Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic. That does not exclude the possibility of cross-examination upon such matters. There may be disagreements amongst experts as to what is axiomatic in their shared discipline. Further, from time to time conventional wisdom is subject to challenge. The extent to which an expert should seek to justify views, including opinions expressed in a report may well depend upon the matters which are really in issue between him or her and any expert called by the opposing parties. In most cases, as one would expect, reputable experts will agree on many, if not most of the preliminary steps and learning upon which an ultimate opinion is based. The areas of difference will emerge when opinions are exchanged. Differences will be further ventilated in the course of cross-examination. It cannot be sensibly suggested that an expert should offer chapter and verse in support of every opinion against the mere possibility that it may be challenged.”[110]
[110] [2002] FCAFC 157 (Red Bull), [89].
In Adler v Australian Security and Investments Commission the Court of Appeal (Giles JA, Mason P and Beazley JA agreeing) said that what is required by way of explanation of an expert’s opinion “will depend on the circumstances”.[111]
[111] [2003] NSWCA 131, (per Giles JA, Mason P and Beazley JA agreeing), [631].
How the causation issue was dealt with
The Member quoted the following passage from the reasons of McColl JA in Edmonds:
“130. In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
131. This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
132. In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
The Member described the above (together with Hancock) as the “standard to be expected of an expert report in the Commission”.[112]
[112] Reasons, [78].
The Member dealt with the reports from the treating doctors in the passage quoted at [16] above. She referred to the references to “stress incontinence, urge incontinence, neurogenic bladder and loss of sensation”. She said the evidence failed to explain “the causation and implications of each of those signs and symptoms”. She said “[t]he problem in this case is that the medical experts have not provided the explanation that would allow their opinions to be evaluated and understood”. She said that Dr Rochford did not provide an explanation that would allow evaluation of the causal chain. She described his opinion as a “bare ipse dixit”. She said that Dr Wines “similarly lacks an explanation for his opinion”. Against this background the Member was not persuaded of the worker’s case on causation, leading to an award in the employer’s favour on this issue.[113] The Member accepted that the “medical reports show a reasonable temporal connection between the surgery in 2014 and the first complaints of urinary problems … [t]he evidence must also show and explain a causal connection.”[114]
[113] Reasons, [79]–[85].
[114] Reasons, [67].
Consideration
There was a significant body of evidence from treating doctors. It was not necessary that the reports of any single medical witness in the worker’s case be capable of fully proving her case on causation. In Nguyen McDougall J (McColl and Bell JJA agreeing) said:
“Where the question for decision is whether, on the balance of probabilities, event A caused result B, the burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists. See Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]; and see Stein JA in the same case at 293 [201]. However, as their Honours pointed out (see for example Spigelman CJ at 276 [89], [90]; and see also Stein JA at 293 [201]), the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists. And a number of pieces of evidence, considered together, may justify the drawing of an inference as to causation when none of them, considered individually, could do so. See the metaphor employed by Lord Cairns LC, of the combined illuminative power of numerous feeble rays of light, in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.”[115]
[115] Nguyen, [61].
In Hancock Beazley JA set out the requirements of expert evidence in the former Workers Compensation Commission of New South Wales. Section 43 of the 2020 Act and r 73 of the Rules provide a similar statutory environment to that applying at the time Hancock was decided, in dealing with the acceptability of expert evidence. The Member’s reasons referred to Hancock as one of the authorities setting out the “standard to be expected of an expert report in the Commission”. No party on this appeal has submitted to the contrary. Beazley JA in Hancock at [85] described the relevant principles governing expert evidence. The expert was required to set out of the “facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.” This is generally consistent with the statement by Spigelman CJ in ASIC v Rich, that “the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion”.
The necessary explanation of an expert’s opinion will “depend on the circumstances”. This will include the circumstances in which an expert’s report is prepared and the purposes for which it is prepared. Some medical reports, such as radiological reports, typically describe the observed findings on investigations with little by way of history or explanation. Serial reports, from a treating specialist to a referring general practitioner, may well be terse, reflecting the shared knowledge of the correspondents and the role of such reports in the treatment of a patient. This does not deprive such reports of all probative force, which needs to be assessed in the circumstances of the individual case. It is additionally necessary that the reports of an expert be read together, in assessing whether there is “a scientific or intellectual basis” for the opinion expressed.[116]
[116] Hancock, [92].
Dr Ruthven, in his report to the insurer dated 13 October 2016,[117] said that “bladder innervation is transmitted by the S 2, 3, 4 segments”. I note the term ‘cauda equina’ is defined in the Oxford English Dictionary online as a noun, “A tail-like appendage, as cauda equina n. the bundle of nerves at the base of the spinal cord.” The term ‘neurogenic’ is defined in the Oxford English Dictionary online as an adjective: “Physiology. Originating in or controlled by nerves, neural activity, or the nervous system; spec. designating or relating to muscular activity”. The word ‘neural’ is defined in that dictionary as an adjective and a noun, “Physiology. Of, relating to, or designating the activity of nerves, neurons or the nervous system.” The term ‘neurogenic bladder’ is defined in the same dictionary: “A bladder with absent or impaired function due to abnormal neural control.” The term ‘stress incontinence’ is defined in the same dictionary as “Leakage of urine from the bladder resulting from coughing, straining, lifting, or other movements that increase pressure within the abdomen.” These are words to be read in their context.
[117] Reply, p. 97.
The worker’s submissions argue that the Commission, as a specialised jurisdiction, should be familiar with the role of the spinal cord and cauda equina in the nervous system. In Workers Compensation Nominal Insurer v Howard[118] Roche AP described the previous Workers Compensation Commission of New South Wales as “an expert tribunal … entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence”.[119] The Acting President relied on Heydon, Cross on Evidence,[120] in support of this proposition. There is a discussion in ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales[121] which describes a “strong line of authority supporting the proposition that Judge Curtis was entitled to rely upon knowledge acquired as a member of a specialised tribunal”. McColl JA (Mason P and Meagher JA agreeing) in ICI Australia referred to Bryer v Metropolitan Water Sewerage & Drainage Board[122] as authority that:
“… the Workers’ Compensation Commission was entitled to use general knowledge acquired in ‘investigating ... thousands of cases in which evidence is given as to conditions of employment and rates of pay’, ‘not only for the purpose of supplying gaps in the evidence given before it as to matters which it is required by statute to determine ... but also for the purpose of weighing and testing any evidence that may actually be tendered’.”[123]
[118] [2011] NSWWCCPD 37 (Howard).
[119] Howard, [89].
[120] 8th Australian ed, 2010, Sydney, Butterworths, p 188.
[121] [2004] NSWCA 55, 60 NSWLR 18 (ICI Australia).
[122] (1939) 39 SR (NSW) 321.
[123] ICI Australia, [220].
In MMI Workers Compensation (NSW) Ltd v Kennedy Mahoney JA said:
“The Compensation Court has in some respects been seen as having experience enabling it to draw inferences from the facts which an ordinary tribunal may not. These references are not limited to matters of pay, awards and the like. The Compensation Court may accept from its judicial knowledge that, in the case of a worker with such a work injury, what happened in 1987 was apt to disturb the physiology of his back.”[124]
[124] (1993) 9 NSWCCR 482, 489.
In Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service Beazley JA cautioned:
“[T]he advantages which membership of a specialist tribunal are intended to promote do not extend to applying the member’s own views of the aetiology of a disease which is not supported by the evidence”.[125]
[125] (1998) 17 NSWCCR 355 (Wallaby Grip), per Beazley JA, [20].
McColl JA in ICI Australia did not regard Wallaby Grip “as detracting from the proposition that a member of the Dust Diseases Tribunal was entitled to rely upon specialised knowledge”.
The previous Workers Compensation Commission of New South Wales, and then the Compensation Court of New South Wales, were long regarded as specialist tribunals.[126] There is no reason why the Workers Compensation Division of the Personal Injury Commission of New South Wales should not be similarly regarded.
[126] See the discussion above, Perkins v Ceva Materials Handling Pty Ltd [2011] NSWWCCPD 32, [75].
I accept that the Commission, as an expert tribunal, is entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence.
In Hancock the “scientific basis” for the treating specialist’s opinion on causation was found in Dr Summersell’s suspicion that subcutaneous changes were present due to a recent fall that the appellant had due to pre-existing instability in his knee. In this regard the “required explanation”, accepted by Beazley JA as sufficient in that case, was not extensive. Deputy President Roche in RSL (Qld) War Veterans’ Homes Ltd v Watkins[127] commented that the “scientific basis for Dr Summersell’s opinion was not explained in any greater detail than is present in Professor Ghabrial’s reports” in the matter of Watkins with which he was dealing.[128]
[127] [2013] NSWWCCPD 44 (Watkins).
[128] Watkins, [62].
The passage from Edmonds, quoted in the Member’s reasons, recognised that “conforming as far as possible to common law standards of admissibility” may be “too stringent an approach”. In Edmonds McColl JA described a conclusion in a medical report, that “in general all the problems are work-related” as “a bare ipse dixit. It was not probative of the issue before the Arbitrator”. The medical evidence in the current matter is summarised above. Some of the material from the treating doctors is relatively briefly expressed, consistent with the circumstances in which it was prepared. It is quite dissimilar to the uninformative generalisation that was criticised by McColl JA in Edmonds.
Dr Ruthven was the initial treating urologist. He recorded a history, including that of back surgery. He noted bladder innervation was transmitted by segments 2, 3 and 4 of the sacrum. He expressed an opinion that any spinal cord injury, “spontaneous or iatrogenic or post surgery” could influence bladder function. Dr Ruthven said there was no neurological evidence of such an injury but he was awaiting a urodynamic study. Dr Ruthven appropriately recorded his history and treatment. He expressed the opinion (necessarily limited at that point in time) that injury to the spinal cord could affect bladder function. He expressed an opinion that there was no neurological evidence of such an injury at that time. Dr Ruthven’s reports complied with the requirements for expert evidence. They were necessarily limited by his status as a treating doctor at that moment in time. His reporting cannot be validly criticised as involving a bare ipse dixit.
Dr Jarvis recorded the history obtained. He referred to a history that the worker’s urinary symptoms worsened following anterior spinal surgery. He set out details of his results in conducting a urodynamic study, and his recommendation for further treatment. His report is not a bare ipse dixit. It does reflect the limited basis of the circumstances in which the worker consulted the doctor.
Dr Manning’s reports are summarised above. She was a treating urogynaecologist. She recorded the histories taken from time to time. She commented on the reliability of urodynamic studies, saying these on occasions do not demonstrate what is happening. She referred to “neurologic symptoms” from the back surgery and a loss of sensation in the perineal area and parts of the legs. On 16 October 2018 Dr Manning noted a history of a “severe urinary incontinence issue that has worsened”. On this occasion Dr Manning said “[t]here is a neurogenic bladder”. Dr Manning reported to the insurer: “She has loss of sensation in the saddle area suggestive of neurogenic injury. Given this picture much of her leakage is likely related to her back injury and subsequent back surgeries” (emphasis added). Dr Manning here expressed a view on whether there was a neurogenic injury by specific reference to the sensory disturbance in the saddle area. The doctor’s reasoning was exposed. On 15 November 2018 Dr Manning reported “[t]he leakage obviously relates greatly to her neurogenic bladder”. This conclusion was consistent with the doctor’s reasoning flowing from the numbness noted on examination. Dr Manning’s conclusions relating to the presence of a neurogenic bladder could not be appropriately described as involving a bare ipse dixit.
Dr Rochford’s report also is summarised above. Dr Rochford recorded a history of urinary incontinence following the second surgical procedure, together with “numbness in both buttocks and around the anal area”. On physical examination there was “numbness to touch in both buttocks and around the perianal region”. Dr Rochford described “problems with stress urinary incontinence and neurogenic bladder”. He said that urinary incontinence was a complication of spinal surgery. He said of the causal relationship:
“She had the onset of bladder incontinence following the second surgical procedure carried out by Dr Marc Coughlan on 22 May 2014. She had numbness in the buttocks and perianal area as well as the urinary incontinence and faecal soiling. She has sustained injury to her spinal cord causing a cauda equina lesion as a result of the surgery.”
Dr Rochford, like Dr Manning, on examination detected numbness in the saddle area. Both hold appropriate specialist qualifications, neither expressed any doubt about the veracity of the complaints. Both found a similar causal chain from the original back injury to the presence of a neurogenic bladder (similar to the chain identified in the appellant’s submissions on appeal). The reasons describe Dr Rochford’s report as a bare ipse dixit because it is not explained.[129] In ASIC v Rich Spigelman CJ said the ‘prime duty’ of the expert is satisfied if he or she “identifies the facts and reasoning process” which are asserted to justify the opinion. “That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.”
[129] Reasons, [81].
Dr Coughlan’s multiple reports relating to the lumbar injury are summarised above. He was the worker’s treating neurosurgeon over many years. On 14 September 2015 he referred to “intercurrent bladder problems”. On 1 December 2015 he recorded a history of “issues with her bladder” going back for “at least a year”. On 30 June 2016 he described bladder dysfunction as the worker’s “biggest issue”. On 21 July 2016 Dr Coughlan said his impression was that some of the worker’s bladder symptoms were “neurogenic given her long and convoluted course with her spine”. The Member was critical of the level of explanation in this comment by Dr Coughlan. By that point Dr Coughlan had been the worker’s treating surgeon for years, had examined her on multiple occasions and had performed both of the lumbar surgical procedures which she had (at that point in time) undergone. It is appropriate to consider his comment in light of the remark of Spigelman CJ in ASIC v Rich quoted at [69] above regarding an expert drawing on “an entire body of experience”. On 21 July 2016 Dr Coughlan said:
“The spine issues are directly related to her workplace injuries and therefore the bladder concerns are secondary to that. I do believe that [the worker’s] current condition is directly related to her workplace injury.”
On 14 December 2017 (a little prior to the last fusion at L5/S1) Dr Coughlan referred to bladder and bowel function as “stable with intermittent dysfunction and this has been the case for a long time”.
The reports of the medicolegal doctors, Dr Rochford and Dr Wines, are summarised above. Dr Rochford noted incontinence, accompanied by numbness in the buttocks and perianal area, following the second lumbar surgical procedure. Dr Rochford described this sensory abnormality as being present on physical examination. Dr Manning also referred to what she described as numbness in the “saddle area”. Dr Rochford, like Dr Coughlan, said the incontinence resulted from the spinal surgery, which in turn resulted from the work injury.
Dr Wines took a contrary view. He said “[e]xamination of the sensation of [the worker’s] perianal and perineum areas was inconsistent”. Dr Wines said that urodynamic evidence did not show bladder function as would be the case with “neurological trauma”. He said the urodynamic studies “probably should be repeated” as the worker has had further surgery since the time of the earlier studies.
The principles governing expert evidence are set out above, particularly those in ASIC v Rich (at [105]) and Hancock (at [85]). Those doctors who furnished longer reports, Dr Coughlan, Dr Manning, Dr Rochford and Dr Wines, complied with those requirements. Their reports referred to their histories, their findings on examination and relevant test results. It is not necessary that there be “exact correspondence between the assumed facts and the facts proved”.[130]
[130] Hancock, [88].
The doctors generally agreed that neurological injury, associated with lumbar surgery to treat the work injury, could be consistent with causing (at least in part) the complaints of incontinence. There were divergent views on whether a neurological injury had occurred. Dr Ruthven said there was no evidence of a neurological injury. Dr Manning ultimately considered there was a neurogenic bladder. In her last report Dr Manning said the “leakage obviously relates greatly to her neurogenic bladder”. Dr Manning considered the loss of sensation in the saddle area suggested the incontinence was likely related to the back injury and surgery. This was notwithstanding the urodynamic studies, which Dr Manning said “on occasions do not demonstrate what is happening”. Dr Manning and Dr Rochford referred to relevant numbness on examination in the saddle distribution. Neither suggested this symptom was in any way non-organic. Dr Wines described the numbness as “inconsistent”. He did not explain his use of this term. It may be intended to refer to inconsistent findings on examination. This is not completely clear.
The fields of specialised knowledge and the expert status of the various doctors were not challenged.
It is apparent from the above discussion that there was a significant volume of medical evidence dealing with the causation issue, which was the only issue in this case. Various issues presented themselves regarding the presence and significance of neurological signs (including numbness) and the potential significance of the urodynamic testing. There were conflicting medical views.
In Hume v Walton the Court of Appeal said:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”[131]
[131] [2005] NSWCA 148 (Hume), (per McColl JA, Tobias JA agreeing), [69].
In Shellharbour City Council v Rigby, Beazley JA, Ipp and Basten JJA agreeing, said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[132]
[132] [2006] NSWCA 308, [144].
In my view the Member’s conclusion, that none of the experts’ reports complied with their duty to explain the opinions they expressed, involved error. She found that the reports of all of the treating doctors[133] and the medicolegal experts on both sides of the record[134] failed to comply with the principles governing expert evidence in the Commission. In the reasons at [80] the Member said that “the medical experts have not provided the explanation that would allow their opinions to be evaluated and understood”. On a fair reading of the multiple reports, the Member’s finding regarding the weight to be afforded to the medical evidence was not properly available. It affected the result, leading the Member to give diminished weight to the evidence supporting the appellant’s medical case, with the consequence that she concluded the appellant’s onus on causation was not satisfied. The Member’s finding was one of fact, and the finding of error on appeal involves satisfaction consistent with the principles discussed above dealing with s 352(5) of the 1998 Act.
[133] Reasons, [77].
[134] Reasons, [81]–[82].
Ground No. 1 succeeds.
GROUND NO. 2
Appellant’s submissions
The appellant submits the Member failed to give adequate reasons for not finding there was a ‘neurogenic component’ of the urological condition. In the alternative, the appellant submits the Member failed to give reasons for why she did not accept any such neurogenic component resulted from the accepted back injury and surgical treatment.[135]
[135] Appellant’s submissions, [20].
The appellant refers to various factual matters that relate more to quibbles with the fact-finding process than to the reasons. The appellant submits there was evidence from the worker that she spoke to Dr Coughlan about her bladder problems following the surgery of 22 May 2014. The appellant refers to Dr Coughlan’s view that the bladder problems were neurogenic and Dr Ruthven’s view that “spinal cord injury could impact bladder function”. The appellant refers to Dr Manning’s references to the problem, being ‘neurogenic’. It is submitted there was a “fair climate” for Dr Rochford’s opinion.[136]
[136] Appellant’s submissions, [23].
The appellant refers to urodynamic studies performed by Dr Jarvis. It is submitted the Member may not have been directed to evidence of these. It is submitted that Dr Rochford and Dr Wines saw these. The appellant submits Dr Manning was aware of these but also carried out subsequent studies of her own, which at least did not exclude a neurogenic contribution to the urological condition. The appellant submits the worker’s lack of confidence in the treatment proposed by Drs Ruthven and Jarvis explains why their opinions were not sought in preparing the case for hearing.[137]
[137] Appellant’s submissions, [24].
The appellant refers to a description, in the reasons, to Dr Manning’s views being “tentatively” expressed. The appellant contrasts this with Dr Manning’s view in her report to the insurer (see [34] above).[138] The appellant refers to the reasons at [77] and submits the requirements of a treating doctor are less stringent than those governing doctors qualified for the purpose of giving evidence. The appellant submits Dr Manning’s reports were, in any event, sufficiently explained.[139]
[138] Appellant’s submissions, [25].
[139] Appellant’s submissions, [26].
The appellant submits there was error in the statement in the reasons that the evidence fails to explain “the causation and implications of those signs and symptoms”. The appellant submits the views of Drs Rochford and Manning would accommodate a finding that the bladder condition resulted in part from the surgery and partly from other factors. The appellant submits it is “unclear” why the Member commented on treatment needs. The appellant submits Dr Manning did not doubt that the urological condition was at least contributed to by nerve damage associated with the back injury and subsequent surgeries. The appellant submits there is no explanation of how the issue differs from that discussed in Chauhan.[140]
[140] Appellant’s submissions, [27]–[28].
Respondent’s submissions
The respondent refers to a decision of Roche DP in Singh v FTW Products Pty Ltd[141] dealing with the need for adequate reasons. It submits it is not for a Presidential member to “comb through the Arbitrator’s findings and reasons in search of error”.[142] The respondent refers to the appellant’s submissions at [23] to [28]. It takes issue with the factual correctness of a number of the appellant’s submissions. It submits the appellant does not demonstrate inadequacy in the reasons. It submits the appellant fails to identify authority to support the submission referred to at [109] above. It submits the reasons were adequate and the Member gave sufficient reasons for rejecting the appellant’s reliance on the decision of Phillips P in Chauhan.
[141] [2007] NSWWCCPD 230.
[142] Respondent’s submissions, [23].
Consideration
The statutory obligation to provide reasons is to be found in s 294 of the 1998 Act which provides: “A brief statement is to be attached to the certificate [of determination] setting out the Commission’s reasons for the determination.” Rule 78(2) of the Rules relevantly provides:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In Pollard v RRR Corporation Pty Ltd[143] McColl JA (Ipp JA and Bryson AJA agreeing) helpfully discussed a number of the authorities dealing with the duty to give reasons. Her Honour said:
“58. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
59. The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘ ‘enter into’ the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”
[143] [2009] NSWCA 110.
The passage of Hume quoted above deals with the requirement to give reasons in cases involving disputed medical evidence. Because of the approach taken to the perceived inadequacy of the medical evidence, the Member did not enter into the issues canvassed and explain why one medical case was preferred over another. This amounted to a failure to furnish adequate reasons in the circumstances of this case. It is appropriately understood as error of the kind identified by Hayne J in Waterways Authority v Fitzgibbon:
“... because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[144]
[144] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, [130].
It follows that Ground No. 2 succeeds.
GROUNDS NOS. 3 AND 4
The appellant in Ground No. 3 refers to error, in that there was a failure to remit the matter to a medical assessor to assess the degree to which the urological condition resulted from the back injury. This alleged error flows from the fact that the Member did not find that the urological condition resulted, at least in part, from the conceded back injury. It is not a ‘stand-alone’ ground. It is not appropriate to deal with Ground No. 3 as if it were a discrete error. Ground No. 3 is misconceived. Ground No. 4 does not raise any separate error and does not require consideration.
DISPOSITION
It follows from the above that orders [1] and [2] of the orders made on 22 June 2022 (both of which turned on the correctness of the award for the respondent in respect of the allegation of injury to the urinary and reproductive system) should be revoked. Section 352 of the 1998 Act relevantly provides:
“(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).”
It is desirable that this matter be dealt with promptly, consistent with the objects in s 3 and the ‘guiding principle’ in s 42 of the 2020 Act. In the circumstances it is appropriate that I re-determine the matter.
The Member, in her reasons, described the issue as whether “the condition causing urinary incontinence is a consequence of [the worker’s] back injury”. She described this as “the only issue for determination”.[145] Neither party has disagreed with this description. The Member set out some frequently applied legal principles that govern the proof of causation issues, in particular quoting at some length from Kooragang and Murphy. She said the “test to be applied in this case is that in Kooragang – whether the condition of urinary incontinence resulted from the accepted back injury”.[146] I agree with this statement. The Member said there was a “reasonable temporal connection” between the surgery in 2014 and the first complaints of urinary problems, made to Dr Macauley in 2015.[147]
[145] Reasons, [3].
[146] Reasons, [61]–[65].
[147] Reasons, [67]–[68].
The fundamental issue on re-determination is whether the necessary causal connection is established on the medical evidence. This question turns significantly on whether the worker’s urinary problems have a neurological cause. The medical evidence is summarised above. Dr Ruthven, the initial urologist involved, on 14 September 2016 recorded the urological complaints and said the worker needed to see Dr Jarvis “to see whether there is a neuropathic component to her bladder function at this time”.[148] On 13 October 2016 Dr Ruthven said that any spinal cord injury could have an influence on bladder function. The doctor at that point was still awaiting the urodynamic study. He said: “At this point in time there is no neurological evidence that that has occurred.” His “impression [was] that her current bladder problems are independent of her recent surgeries.” Dr Jarvis reported on 3 December 2016, a urodynamic report. He reported there was evidence of “type 2, urodynamic stress incontinence”.[149] There is no reference at that point to neurological abnormality.
[148] ARD, p 105.
[149] AALD 16/6/22, p 1.
The reports of the next treating specialist, Dr Manning, a urogynaecologist, are summarised in greater detail at [33] to [35] above. Reporting on 10 August 2017, Dr Manning recorded performing urodynamic testing. It can be inferred that this urodynamic testing did not demonstrate neurological signs, in view of the doctor’s comment that “on occasions the urodynamic studies do not demonstrate what is happening”. Dr Manning identified “lower limb neurologic symptoms from her back surgery” and “loss of sensation around the perineal area and parts of the legs”. The doctor described it as “quite possible there is a component of neurogenic bladder although she empties well”.
Dr Manning next reported on 16 October 2018. The urinary incontinence issue had worsened. The doctor again carried out testing. Dr Manning referred to the previously observed loss of sensation in the saddle distribution and in the feet. The doctor said the several back surgeries suggested “a neurologic component to the urge”. The doctor wrote that there “is a neurogenic bladder”. She reported to the insurer that the loss of sensation in the saddle area was “suggestive of neurogenic injury. Given this picture much of her leakage is likely related to her back injury and subsequent back surgeries.” Dr Manning last reported on 15 November 2018. She reported that “the leakage obviously relates greatly to her neurogenic bladder”.
The Member agreed with a submission from the employer’s counsel that “Dr Manning’s reports are carefully and somewhat tentatively expressed”.[150] Dr Manning’s reports should be read together. They offer an analysis that, having regard to the history of multiple surgical procedures, and the presence of sensory disturbance on examination in the saddle distribution and parts of the legs, the urinary problems obviously “relate greatly her having a neurogenic bladder”. This is notwithstanding the urodynamic testing, which in Dr Manning’s view on occasions does “not demonstrate what is happening”. In Dr Manning’s view the failure of urodynamic testing to demonstrate neurological signs did not preclude the presence of a neurological cause for the urinary problem.
[150] Reasons, [76].
Dr Coughlan, although not a specialist in urology, was the treating neurosurgeon. He recorded bladder complaints on 14 September 2015. On 1 December 2015 Dr Coughlan recorded issues with the bladder for at least a year. This takes the bladder complaints (on that history) back to the latter part of 2014. This was consistent with the complaints commencing (consistent with the worker’s history) after the second lumbar operation, which was performed on 22 May 2014. Dr Coughlan considered there was a causal relationship between the work injury, the surgery, and the bladder complaints. He referred to the “long and convoluted course with her spine”. Dr Coughlan clearly held the view that the history of lumbar injury and surgery was such that it could potentially be causative of urinary problems. In this way, Dr Coughlan’s opinion is supportive of the reasoning of Dr Manning.
Dr Rochford, like Dr Manning, found sensory abnormality on examination of the saddle distribution and parts of the legs. Again, this is consistent with being an objective sign of neurological disturbance. Dr Rochford explained this on the basis there was an injury to the spinal cord as a result of the surgery (see [36] to [37] above). Dr Rochford referred to the fact that the bladder disturbance followed the surgical procedure on 22 May 2014.[151]
[151] ARD, p 46.
Dr Wines referred to the urodynamic studies performed by Dr Jarvis as showing “pure stress incontinence without evidence of any bladder instability”. The doctor referred to inconsistency on examination of the perianal and perineum areas. He said there was “no urodynamic evidence of neurological impairment of bladder function as would be the case with neurological trauma”. The doctor described the incontinence as “the legacy of the previous pregnancies”. He said there was “no neurological abnormality found which may have played a part in producing her urological symptoms”.[152]
[152] Reply, pp 144–147.
I prefer and accept the evidence of Dr Manning, supported as it is (in various ways) by the reports of Dr Rochford and Dr Coughlan. Dr Manning had the advantage, as a treating doctor, of examining the worker on three occasions over a period from August 2017 to November 2018. She took a history, performed urodynamic testing and conducted physical examinations. She did not suggest the worker’s responses on physical examination (or her history) were unreliable. It is apparent from Dr Manning’s reports that she regarded the found numbness in the saddle distribution and on parts of the legs as an objective finding supporting the proposition that there was neurological injury.
Although Dr Manning carried out urodynamic testing, she regarded this as having its limitations, saying it on occasions does not “demonstrate what is happening”. Dr Manning initially referred to the possible presence of “a component of neurogenic bladder”. When Dr Manning examined the worker a year later, in October 2018, there was a history of worsening bladder symptoms, and the doctor’s opinion became firmer, she diagnosed “a neurogenic bladder”. She regarded the loss of sensation as “suggestive of neurogenic injury”. She reported to the insurer that the leakage “related greatly to [the worker’s] neurogenic bladder”.
Dr Wines’ opinion revolved essentially around the fact that the initial urodynamic testing performed by Dr Jarvis did not confirm the presence of neurological injury. Dr Wines did not respond to Dr Manning’s view that urodynamic testing may on occasions be unreliable. Dr Wines did not deal with the implications of the sensory abnormality detected on examination by both Dr Manning and Dr Rochford. Neither of these doctors commented on any lack of reliability on the worker’s part on examination, particularly so far as the sensory disturbance in the saddle distribution and legs was concerned. Dr Wines referred to examination of the perianal and perineum areas as being “inconsistent”. He did not, in his report, refer to the nature of any inconsistency or to its significance (if any). His opinion did not comment on the diagnostic significance of the sensory abnormality detected by these other doctors.
Dr Coughlan was the surgeon who carried out all of the lumbar surgical procedures. It would be anticipated that Dr Coughlan would be well placed to comment on whether the surgery had the capacity to produce an outcome, by way of urinary problems, such as those experienced by the worker. Dr Coughlan supported the causal link between the surgery and the urinary problems. He obviously does so as a neurosurgeon, not as a urologist.
Dr Jarvis and Dr Ruthven added little to this issue. Dr Ruthven proffered an “impression” that the worker’s bladder problems were “independent of her recent surgeries” before any urodynamic study was available. Dr Jarvis described the urodynamic testing he performed. His report did not seek to interpret its significance in respect of the causation issue.
It follows from the above that I find the worker has succeeded in establishing the necessary causal link between the relevant workplace injury to her lumbar spine and the consequential condition in the urinary and reproductive system.
DECISION
The Certificate of Determination dated 22 June 2022 is revoked.
In lieu thereof the following orders are made:
1. There is a finding that the worker sustained a consequential condition of her urinary and reproductive system as a result of the conceded work injury to the lumbar spine suffered by her on 28 April 2010.
2. The worker’s reasonable expenses payable pursuant to section 60 of the Workers Compensation Act 1987 in respect of the above injury are to include those relating to the consequential condition of her urinary and reproductive system.
3. The matter is remitted for referral to a Medical Assessor to assess the worker’s permanent impairment:
Date of injury: 28 April 2010
Body parts:Lumbar spine
Left lower extremity (foot)
Right lower extremity (foot)
Urinary and reproductive system
4. The documents to be sent to the Medical Assessor are:
(a)Application to Resolve a Dispute,
(b)Reply, and
(c)Application to Admit Late Documents dated 16 June 2022.
Michael Snell
DEPUTY PRESIDENT
16 August 2023
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