Hernandez v State Rail Authority of NSW

[2022] NSWPICPD 5

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Hernandez v State Rail Authority of NSW [2022] NSWPICPD 5

APPELLANT:

Alberto Hernandez

FIRST RESPONDENT:

State Rail Authority of NSW

SECOND RESPONDENT:

Adstock Pty Ltd formerly known as GL Cooper Sales Pty Ltd

FIRST RESPONDENT’S INSURER:

QBE TMF

SECOND RESPONDENT’S INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-6144/20

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

17 February 2022

ORDERS MADE ON APPEAL:

1.   The Member’s Certificate of Determination dated 2 June 2021, paragraphs 1 and 2 are confirmed.

2.   The Certificate of Determination, paragraphs 3 and 4 are revoked and in their place the following orders are made:

(a)   Award for the respondents in relation to the allegation that the applicant’s bilateral shoulder conditions resulted from the injury;

(b)   Award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension;

(c)    The matter is remitted to another member for determination of whether the applicant’s

(i)     renal condition, and

(ii)    cardiac condition

resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.

CATCHWORDS:

WORKERS COMPENSATION – whether the Member reversed the onus of proof – Watts v Rake [1960] HCA 58; Purkess v Crittenden [1965] HCA 34; Brown v Lewis [2006] NSWCA 87 discussed and applied – whether the conditions resulted from the accepted injury – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 discussed – whether error in considering that the symptoms were merely a manifestation of a pre-existing condition – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8; Trustees of the Roman Catholic Church for the Diocese of Paramatta v Brennan [2016] NSWWCCPD 23 discussed – circumstances in which the history recorded in a medical report will be considered evidence of the facts – Guthrie v Spence [2009] NSWCA 369 applied– requirement for the facts upon which an opinion is based to be a proper foundation for the opinion – Paric v John Holland (Constructions)Pty Ltd [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 applied

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr D Adhikary, counsel

Wilson Fox Lawyers

First Respondent

Ms F King, solicitor

Moray & Agnew Lawyers

Second Respondent:

Ms K Farrar, solicitor

Rankin Ellison Lawyers

DECISION UNDER APPEAL:

MEMBER:

Mr P Sweeney

DATE OF MEMBER’S DECISION:

2 June 2021

INTRODUCTION AND BACKGROUND

1. Mr Alberto Hernandez (the appellant) suffered several low back injuries in the course of his employment with the State Rail Authority of NSW (the first respondent) in 1973, 1976 and on 8 December 1987. The first two injuries appeared to be relatively minor. However, the injury in 1987, together with a further low back injury in the course of the appellant’s employment with Adstock Pty Ltd (formerly known as GL Cooper Sales Pty Ltd) (the second respondent) significantly impacted the appellant’s capacity for work and required ongoing treatment.

2. The appellant brought proceedings in the Compensation Court of New South Wales in 1993, and was awarded weekly payments of compensation, treatment expenses and a lump sum in respect of the permanent impairment of his back and the associated pain and suffering. Liability for the compensation was apportioned between the two respondents. The appellant subsequently commenced proceedings in the Workers Compensation Commission in respect of further claims for lump sum entitlements and treatment expenses, resulting in awards in his favour. Additionally, in 2015, the Workers Compensation Commission determined that the appellant met the definition of being a “seriously injured worker” within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act).

3. The appellant commenced the current proceedings in the Workers Compensation Commission. The proceedings concern a further claim for treatment expenses incurred by the appellant in respect of treatment for conditions in both shoulders, hypertension, and renal and cardiac conditions. The appellant contended that those conditions all resulted from the low back injuries and thus, the treatment for the conditions was compensable. The respondents disputed that the conditions were consequential upon the accepted back injuries.

4. On 1 March 2021, prior to the matter being listed for arbitration, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[1] The matter was listed for arbitration and allocated to a Member of the Commission. The Member issued a Certificate of Determination dated 2 June 2021. The Member accepted that the appellant’s condition of hypertension, which the Member determined was pre-existing, was aggravated by the low back injury, causing elevated symptoms in 2001 and 2005. The Member did not accept that the appellant suffered from consequential conditions in the shoulders or renal or cardiac conditions as a result of the low back injuries. He further determined that he was not satisfied that the appellant’s need for treatment of those conditions resulted from the back injury.

   [1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

5. The appellant appeals those decisions.

ON THE PAPERS

1. Section 52(3) of 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 without holding any conference or formal hearing.”

2. The parties have indicated that the appeal can be determined on the basis of the documents before me. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE EVIDENCE

1. The Application to Resolve a Dispute (ARD) contained annexures totalling approximately 2,000 pages, many of which do not relate to the issues for determination in this appeal. The following is a summary of the evidence relied upon by the parties in their written and oral submissions to the Member and the evidence relevant to this appeal.

The appellant’s statements

1. The appellant provided a number of statements for the purpose of previous claims for compensation in respect of his injuries. The statements dated 30 October 2002,[2] 17 January 2008[3] and 26 November 2008[4] do not touch upon the issues in these proceedings.

   [2] ARD, pp 29–30.

   [3] ARD, p 28.

   [4] ARD, p 27.

2. In a statement dated 13 April 2015, the appellant provided a history of his back injuries and the subsequent treatment, including surgeries to his lumbar spine on about 7 December 2006 and 2 August 2007. He indicated that he was seeking a declaration from the Commission that he was a seriously injured worker. The appellant advised, among other things, that he had experienced gastrointestinal symptoms since about 1993. He further advised that he had undergone surgery for bilateral hernias following an exercise program undertaken in July 2012 at the Centre for STRONG Medicine at Balmain Hospital. The appellant also described a history of right shoulder symptoms, which were investigated on about 18 December 2003. He said those symptoms were exacerbated in August 2007 by relying on his arms when attempting to stand or sit up following surgery to his back. The appellant referred to the rehabilitation program at the Centre for STRONG Medicine where he was required to lift dumbbells weighing 9 to 10 kilograms. The appellant said that on or about 21 October 2013, he began to experience extreme pain in both shoulders. The appellant described the treatment provided in respect of his shoulder conditions. The appellant identified his claim as involving a gastrointestinal condition, bilateral hernias and “injury” to both shoulders.[5]

   [5] ARD, pp 9–26.

3. The appellant provided a supplementary statement dated 10 August 2018.[6] He reiterated his assertion made in his prior statement that, following surgery to his back on 2 August 2007, he commenced using his right arm to assist with rising to a sitting or standing position. He said he developed pain in his right shoulder in about mid-2008. The appellant described the treatment provided for the right shoulder and the results of an MRI scan undertaken on 30 September 2008. The appellant reported that he subsequently underwent rehabilitation at the Centre for STRONG Medicine in which he was pushed to lift weights of 9 to 10 kilograms but was only able to manage 7 kilograms before experiencing severe pain in both of his shoulders. The appellant said that he underwent investigations of the left shoulder and further investigations of the right shoulder in October 2013 and again in 2014. He described ongoing treatment for the shoulders.

   [6] ARD, pp 3–8.

4. The appellant also referred to suffering cardiac and renal conditions, which he attributed to the accepted injuries. He pointed to medical evidence which he asserted was supportive of his complaint that the medication he was prescribed to treat his accepted injuries was either causative of or contributed to those conditions.

5. The appellant provided a further statement dated 21 September 2020.[7] He said he had discontinued an application lodged in the Commission on 27 August 2018 in which he had claimed medical expenses for treatment to his shoulder, kidneys, hypertension and heart condition because he was advised that there were insufficient particulars of the treatment expenses claimed. The appellant gave further particulars of those expenses.

   [7] ARD, pp 1–2.

6. The appellant provided an additional statement dated 16 January 2021.[8] The appellant referred to the report of Dr Conrad Winer, consultant physician, dated 21 October 1988, which had been filed in these proceedings by the first respondent. The report had been relied upon by the appellant in his prior proceedings. The appellant took issue with references made by Dr Winer to the appellant’s hypertension and disputed the history recorded by Dr Winer, who, the appellant said, had treated the appellant in respect of his back injuries on three occasions in 1988. In particular, the appellant disputed that he had suffered from hypertension for four years prior to 1988 and that he had avoided alcohol for six months because of his hypertension. The appellant asserted that during the time Dr Winer treated him, his blood pressure was regularly measured and was, as far as he was aware, normal.

   [8] Application to Admit Late Documents (AALD) dated 18 January 2021, pp 1–4.

7. The appellant stated that he was provided with medication for raised blood pressure by his treating general practitioner, Dr Linda Pope, in about June 1992, which was shortly after his back injury with the second respondent, but said he only took the medication for a short period. The appellant described elevated blood pressure again just prior to and at the time of his lumbar surgery, which took place on 26 November 1992. He said that Dr Pope diagnosed him as suffering from hypertension in late 1993 or early 1994 and he was then commenced on permanent medication to treat hypertension. The appellant attributed the elevated blood pressure to the pain he was experiencing because of his back injuries.

8. The appellant asserted that the history recorded by Dr Winer was inaccurate, misleading, completely false and without basis.

9. The appellant’s diary of exercises conducted through the Centre for STRONG Medicine was in evidence.[9] The diary, which was completed by the appellant, recorded weights involved in the prescribed exercises which did not exceed 8.5 kilograms.

The medical evidence

[9] ARD, pp 1854–1875.

Dr Conrad Winer, consultant physician

1. The appellant consulted Dr Conrad Winer on referral from his general practitioner at the time, Dr Mor-Yosef. At the request of the appellant’s former solicitors, Dr Winer provided a report dated 21 October 1988.[10] He took a history of the appellant’s back symptoms from 1974 and the injury on 8 December 1987 and noted the appellant’s presenting symptoms. Dr Winer recorded that the appellant was a non-smoker and that he had avoided consumption of alcohol for the past six months because of hypertension, which had been present for four years.

   [10] AALD dated 14 January 2021, pp 1­­–4.

The clinical notes recorded by DMC Medical Centre

1. The clinical notes recorded by Dr Pope and various other doctors at the DMC Medical Centre commenced on 20 August 2001. In the clinical note recorded at that consultation, Dr Pope referred to the appellant’s right Achilles tendon and noted a blood pressure reading of 135/88. Under the heading “Diagnosis,” Dr Pope recorded osteoarthritis and hypertension. Dr Pope prescribed medication which included Monopril tablets as well as Vioxx.[11] On 13 March 2002, Dr Pope ceased Vioxx, noting it “may be affecting kidney.”[12] On 15 October 2002, Dr Pope again prescribed Vioxx[13] but that medication was once more ceased on 24 December 2002.[14]

   [11] ARD, p 909.

   [12] ARD, p 907.

   [13] ARD, p 905.

   [14] ARD, p 903.

2. On 12 November 2002, Dr Bobby Kumar arranged for investigations of the appellant’s kidneys and renal artery.[15] On 29 November 2002, Dr Kumar recorded a discussion he had with the appellant that it was likely that his renal dysfunction was secondary to the ingestion of Vioxx and/or Monopril.[16]

   [15] ARD, p 904.

   [16] ARD, p 903.

3. Dr Pope recorded on 9 December 2004 that the appellant was having difficulty sleeping because of back and shoulder pain.[17] On 6 July 2005, Dr Pope noted that the appellant attended because of ischaemic heart disease and, on examination, the appellant’s blood pressure reading was 140/100. She referred the appellant to Dr Jens Kilian, consultant cardiologist.[18] On 22 September 2005, Dr Pope noted a blood pressure reading of 150/95 and recorded the appellant’s weight as 93 kilograms.[19]

   [17] ARD, p 897.

   [18] ARD, p 894.

   [19] ARD, p 893.

4. On 23 March 2006, Ms Jenny Graham, registered nurse, took a history of 3 weeks of elevated blood pressure. On 15 January 2007, Dr Kate Clowes noted that the appellant’s blood pressure had been problematic and was being managed by a cardiologist and renal specialist.[20]

   [20] ARD, p 882.

5. On 24 November 2008, Dr Pope took a history of bilateral shoulder pain and referred the appellant to Dr Raymond Garrick.[21] Dr Pope referred the appellant to the Centre for STRONG Medicine on 29 July 2010.[22] On 17 November 2010, Dr Pope ceased prescribing Reandron, citing the reason as it may have been affecting the appellant’s renal function.[23] Dr Pope recorded on 18 September 2012 and 27 September 2012 that the appellant was performing home exercises supervised by the Centre for STRONG Medicine, which caused groin pain, so the appellant ceased those exercises on 27 August 2012.[24] Dr Pope recorded that the appellant recommenced exercises by 12 March 2013[25] but ceased again in late October 2013.[26] On 25 June 2014, Dr Pope noted bilateral shoulder pain with restrictions.[27] She recorded on 3 September 2014 that the appellant felt his shoulder problem was attributable to the rehabilitation treatment.[28] Right shoulder surgery was performed in April 2015.[29]

   [21] ARD, p 877.

   [22] ARD, p 874.

   [23] ARD, p 873.

   [24] ARD, p 869.

   [25] ARD, p 868.

   [26] ARD, p 866.

   [27] ARD, p 865.

   [28] ARD, p 864.

   [29] ARD, p 863.

6. On 28 April 2016, Dr Pope noted the reasons for the consultation were post-operative right shoulder review, back pain, chronic renal impairment and reflux oesophagitis.[30]

   [30] ARD, p 861.

Dr Neil McGill, rheumatologist

1. Dr Pope referred the appellant to Dr McGill, rheumatologist, in 2003 in respect of right upper limb symptoms. Dr McGill reported to Dr Pope on 4 December 2003.[31] He recorded a history of symptoms of intermittent numbness in the right ring and little fingers commencing five years earlier, which developed into problems when using an adding machine and participating in pistol shooting. Dr McGill reported that the appellant ceased pistol shooting about six months prior to the consultation but the numbness in the fingers had become more prominent.

   [31] ARD, p 204.

2. Dr McGill examined the appellant’s right upper limb, noting that neck movements were restricted but did not reproduce the upper limb symptoms. He noted mild wasting of the shoulder girdle and pain and weakness on abduction in the right shoulder, as well as pain when returning his arm to his side. Dr McGill concluded that he thought that the symptoms were probably caused by rotator cuff disease in the right shoulder, although that diagnosis would not explain the numbness and loss of grip strength in the right fingers and hand. Dr McGill arranged for x-rays and ultrasound of the right shoulder and an MRI scan of the neck.

3. Dr McGill reviewed the results of the investigations and reported to Dr Pope on 22 January 2004.[32] He advised that the shoulder investigations were essentially normal apart from some small bursal thickening, which was considered to be asymptomatic. Dr McGill reported that there was full power in the appellant’s shoulder girdle muscles, his reflexes were symmetrical and there was no evidence of impingement.

   [32] ARD, p 205.

Dr Jens Kilian, consultant cardiologist

1. Dr Kilian, cardiologist, reviewed the appellant at the request of Dr Pope. He reported to Dr Pope on 7 July 2005.[33] He noted a history of hypertension. Dr Kilian observed that there were no signs of cardiac failure, sinus rhythm was normal, and there was mild left ventricular hypertrophy. He said that on the basis of the absence of symptoms, further investigation was not necessary, although he was concerned about the presence of hypercholesterolaemia. Dr Kilian prescribed Lipitor medication.

   [33] ARD, pp 132–133.

Dr Raj Puranik, consultant cardiologist

1. Dr Puranik reported to Dr Pope between 29 September 2005 and 24 October 2016 in respect of the appellant’s cardiac condition and hypercholesterolaemia. Over that period, he reported the appellant’s cardiac condition as stable, but said the appellant had some risk factors for coronary disease.[34] On 27 October 2014, Dr Puranik also recorded that the appellant had suffered bilateral ligamentous tears in both shoulders which the appellant attributed to performing exercises in the Centre for STRONG Medicine.[35] On 13 March 2015, Dr Puranik described the appellant’s heart condition as “only mild valvular heart disease” with no active cardiac symptoms.[36]

   [34] ARD, pp 135–155.

   [35] ARD, p 149.

   [36] ARD, p 151.

Associate Professor Adrian Gillin, renal physician

1. Dr Pope referred the appellant to A/Prof Gillin in 2006. A/Prof Gillin initially reported to Dr Pope on 1 June 2006.[37] He noted the appellant’s concerns in relation to controlling his blood pressure, and the presence of renal cysts and decreased renal function. A/Prof Gillin took a history of the appellant’s recent blood pressure readings which were treated with Minipress medication. He noted that the appellant had previously been treated with Monopril but that medication was ceased because of reduced kidney function. A/Prof Gillin recorded that the appellant was overweight at 95 kilograms. He considered that the appellant’s treatment for his blood pressure was sufficient and advised that the appellant should have his renal function checked every three months.

   [37] ARD, p 162.

1. A/Prof Gillin reviewed the appellant and reported to Dr Pope on 3 August 2006.[38] He indicated that he had added a small dose of Avapro to the appellant’s medication regime, but said he was “cautious because his renal function deteriorated with ACEI’s previously.” He advised Dr Pope that she could increase the Avapro provided it did not affect the appellant’s kidney function or blood pressure control.

   [38] ARD, p 164.

2. On the same day, A/Prof Gillin referred the appellant to a dietician, Ms Aditi Patwardhan, for dietary advice.[39] The recorded diagnoses made reference to back surgery, labile hypertension with an onset in 2000, stage 3 chronic kidney disease and glucose intolerance.

   [39] ARD, p 165.

3. In subsequent reports, A/Prof Gillin advised that:

   (a)    the appellant considered that his kidney problems resulted from non-steroidal anti-inflammatory medication so he explained to the appellant the “continuing difficulty of managing arthritis/bone pains and kidney problems”;[40]

   (b)    he did not want the appellant to be treated with non-steroidal anti-inflammatory medication because of the expected adverse effect on his blood pressure and kidney function;[41]

   (c)    on 19 March 2014, the appellant advised that he had ceased rehabilitation at the Centre for STRONG Medicine because of worsening pain in his arms and legs and the previous hernias;[42]

   (d)    at the consultation on 18 March 2015, the appellant complained of right shoulder pain, which the appellant attributed to lifting weights at the Centre for STRONG Medicine,[43] and

   (e)    the appellant had surgery to the right shoulder in April 2015 but subsequently fell and re-injured the shoulder in November 2015.[44]

   [40] Report dated 9 October 2006, ARD, p 166.

   [41] Report dated 26 May 2008, ARD, p 169.

   [42] ARD, p 190.

   [43] ARD, p 173.

   [44] Report dated 16 March 2016, ARD, p 199.

Dr Rahn Ilsar, cardiologist

1. Dr Pope arranged for the appellant to attend Dr Ilsar, cardiologist for assessment of his heart condition. In a report dated 29 October 2007,[45] Dr Ilsar noted the presence of cardiac risk factors of hypertension and hypercholesterolaemia. On examination, the appellant’s blood pressure was within normal range and the cardiovascular examination was generally unremarkable. On review in October 2008, Dr Ilsar again reported that, from a cardiac viewpoint, the appellant’s condition was stable,[46] as it was again in October 2009, although Dr Ilsar recommended dietary and lifestyle changes to assist with the appellant’s elevated cholesterol.[47]

   [45] ARD, pp 156–157.

   [46] Report dated 27 October 2008, ARD, pp 158–159.

   [47] Report dated 19 October 2009, ARD, p 160–161.

Dr Raymond Garrick, neurologist

1. Dr Pope referred the appellant to Dr Garrick who reported to Dr Pope on 13 January 2009.[48] Dr Garrick noted a history of renal impairment related to hypertension, glucose intolerance and osteoarthritis, and recently identified osteoporosis and vitamin D deficiency. Dr Garrick recorded the appellant’s complaints as mainly concerning pain in the mid-thoracic region and left leg weakness. During a physical examination, the appellant complained of significant pain when using the left shoulder girdle muscles.

   [48] ARD, pp 1497–1498.

2. On further review of the appellant in March 2009, Dr Garrick relevantly reported that the appellant complained of restriction of movement in the left shoulder but on examination, rotation of the right shoulder joint was more uncomfortable than the left.[49] Subsequently, on 5 February 2010, Dr Garrick reported that the appellant’s hypertension was well controlled, and his renal impairment was being carefully monitored. Dr Garrick remarked that the appellant was aware of the potential for medications to aggravate the appellant’s renal impairment.[50]

   [49] Report dated 31 March 2009, ARD, p 1502.

   [50] ARD, p 1520.

Dr Terry Kwong, consultant physician and rheumatologist

1. The appellant was referred to Dr Kwong by Dr John Sheehy, the surgeon who performed the appellant’s second lumbar surgery in 2006 and who had continued to treat the appellant in respect of his back injuries. Dr Kwong reported to Dr Sheehy on 22 September 2008.[51] He noted the appellant complained of neck and right shoulder and arm pain which commenced as upper back pain in 1993 and gradually involved the right hand and right fingers. Dr Kwong referred to an ultrasound conducted in 2003 at the request of Dr McGill rheumatologist, which showed a mild subacromial bursa. Dr Kwong recorded the appellant’s complaints as severe right shoulder pain and left shoulder pain, commencing five weeks previously.

   [51] ARD, pp 206–207.

2. Dr Kwong examined the appellant and concluded that the cause of the right shoulder and upper arm pain was unclear. He referred the appellant for an MRI investigation and advised that anti-inflammatory medication should be avoided because of the appellant’s renal impairment.

3. Dr Kwong reviewed the appellant on 13 October 2008.[52] He advised that the MRI scan disclosed a full thickness tear of the supraspinatus tendon, moderate tendinosis, subacromial bursitis and a partial tear of the subscapularis. He described the pathology as “significant.”

   [52] Report dated 13 October 2008, ARD, p 208.

4. On 3 November 2008, Dr Kwong reported that he had again reviewed the appellant.[53] He noted the appellant’s reluctance to undergo shoulder surgery and that he agreed with the appellant that the full thickness tear was longstanding.

   [53] ARD, p 209.

Associate Professor Nalin Singh, specialist in aged care

1. Dr Pope referred the appellant to A/Prof Singh, Senior Staff Specialist and Director at the Centre for STRONG Medicine. Dr Singh reported to Dr Pope on 6 February 2012.[54] He noted a long history of back pain, shoulder pain, and symptoms in both legs. Dr Singh recorded a past history of hypertension since 1992, chronic kidney disease and hypercholesterolaemia as well as a history of transient ischaemic attack. Dr Singh examined the appellant, relevantly recording that on upper arm examination, there was triceps weakness and decreased strength globally. Dr Singh diagnosed extensive osteoarthritis and neuropathic pain in respect of which the appellant refused analgesia because of renal impairment. He advised that the appellant agreed to undertake a home-based exercise program.

   [54] ARD, pp 210–211.

2. On 7 June 2012, A/Prof Singh reported that the appellant had been participating in the home-based program without evidence of injury and was slowly progressing with his weights training.[55] A/Prof Singh further reviewed the appellant on 21 November 2013, extensively reporting on a significant deterioration in the appellant’s back condition following a long drive.[56] He referred to the appellant having a subacromial bursa on the right shoulder and a right glenohumeral joint effusion. He advised that he had told the appellant to stop performing the exercises pending review by a neurologist.

   [55] ARD, p 212.

   [56] ARD, pp 213–214.

The clinical notes from Balmain Hospital (Centre for STRONG Medicine)

1. Brief records from the Centre for STRONG Medicine commencing on 17 February 2012 were annexed to the ARD.[57] Complaints of shoulder pain were noted at the first consultation. On review on 20 November 2013, the plan was recorded as “no weight training.” And on 18 August 2014, the appellant reported that he felt he could not continue with the program, mainly because of back and shoulder pain.

   [57] ARD, pp 570–580.

Dr Jeffrey Petchell, orthopaedic specialist shoulder surgeon

1. Dr Petchell saw the appellant at the request of Dr Pope. He reported to Dr Pope on 23 February 2015.[58] He recorded a two-year history of bilateral shoulder pain, more severe in the right shoulder. He referred to the results of an ultrasound which disclosed a full thickness tear of the right supraspinatus and subscapularis and a full thickness tear of the left shoulder supraspinatus. Dr Petchell said that the appellant agreed to undergo surgery, noting that Dr Puranik had also considered the appellant was a good candidate for operative intervention.

   [58] ARD, p 215.

2. On 3 March 2015, Dr Petchell reported to Dr Pope in relation to the results from an MRI scan of the right shoulder.[59] He advised that the MRI revealed a full thickness supraspinatus tear, which he considered repairable, a tear of the upper scapularis with dislocation of a slip of the biceps, together with joint degeneration of the acromioclavicular joint. He again referred to the proposed surgery.

   [59] ARD, p 216.

3. Dr Petchell reviewed the appellant on 27 April 2015, two weeks after the surgery. He reported to Dr Pope that, at surgery, he found a “massive tear involving supraspinatus, infraspinatus and subscapularis” with “associated bicipital tendonitis.”[60]

   [60] ARD, p 220.

4. The appellant continued to consult Dr Petchell for review and on 6 October 2015, the appellant complained to Dr Petchell of worsening left shoulder symptoms.[61] In a report to Dr Pope dated 31 October 2016, Dr Petchell described the findings on an MRI scan of the left shoulder as a medium sized full thickness tear of the supraspinatus, with acromioclavicular joint arthritis.[62] Dr Petchell also treated the appellant in respect of the right humerus fracture which had occurred in a fall in November 2015.[63]

   [61] ARD, p 225.

   [62] ARD, p 242.

   [63] ARD, pp 234–239.

5. On 26 September 2016, the appellant again consulted Dr Petchell in respect of worsening left shoulder pain. Dr Petchell noted that the pain had been present since 2013 and that an ultrasound performed at that time showed a full thickness tear of the supraspinatus, with biceps tendon effusion. Dr Petchell arranged for the appellant to undergo an MRI scan.[64] On 31 October 2016, Dr Petchell reported the results of the MRI scan to Dr Pope and advised that the full thickness tear was repairable by surgery, which he arranged to be performed on 9 February 2017.[65] The surgery was performed on that date and Dr Petchell continued to review the appellant’s left shoulder.[66]

   [64] ARD, p 240.

   [65] ARD, p 242.

   [66] ARD, pp 243–250.

Dr Neil Berry, Approved Medical Specialist

1. Dr Neil Berry was an Approved Medical Specialist appointed by the former Workers Compensation Commission. The appellant was referred to Dr Berry for an assessment of his whole person impairment of the lumbar spine, scarring, and consequential conditions of the cervical spine, as well as upper and lower gastrointestinal tracts. He examined the appellant and issued a Medical Assessment Certificate dated 25 January 2016.[67]

   [67] ARD, pp 121–129.

2. Dr Berry took a detailed history of the appellant’s back injuries and the subsequent back surgery in 1992. Dr Berry noted that at about the time of the appellant’s recuperation from the surgery, he began to experience neck and upper back pain and also be became troubled with epigastric pain and reflux.

3. Dr Berry recorded that in approximately 2012, the appellant was participating in a rehabilitation program at Balmain Hospital, where he was required to perform weight-lifting exercises, during which he experienced bilateral shoulder problems and inguinal hernias. Dr Berry noted the surgery to address the hernias. He also took a history of the appellant’s ongoing back complaints and listed the appellant’s medications. Dr Berry noted that the appellant had a fall in 2015, in which the appellant suffered a fracture, recorded by Dr Berry as a fracture of the right shoulder. Dr Berry also referred to the appellant’s high blood pressure, as well as his kidney problems, which were long standing and which the appellant asserted were caused by ingesting anti-inflammatory medications. Following an examination of the appellant’s cervical spine, upper extremities, lower extremities, thoracolumbar spine and abdomen, Dr Berry assessed the appellant’s whole person impairment of the lumbar spine as 32% and upper digestive tract as 2%, with nil percentage impairment attributable to the cervical spine, lower digestive tract and scarring.

Dr Richard Crane, general surgeon

1. The first respondent arranged for the appellant to be examined by Dr Crane, general surgeon, in respect of his previous claim related to hernias. Relevantly, on 4 February 2013, Dr Crane recorded that the appellant was performing stretching exercises at home for his back injury, during which the appellant experienced groin pain. Dr Crane noted that the appellant believed the exercises may be contributing to his groin pain.[68]

   [68] First respondent’s Reply to Application to Resolve a Dispute (reply), pp 22–27.

2. Dr Crane again reviewed the appellant at the request of the first respondent on 30 March 2015.[69] On this occasion, the appellant’s complaints included pain in both arms. Dr Crane noted that the appellant had consulted Dr Petchell in respect of those complaints and surgery was proposed. He further noted that the appellant’s shoulder problems did not present until 2012, when the appellant was performing rehabilitation for his back and neck at the Balmain Hospital clinic and that the appellant also developed hernias at that time. Dr Crane referred to the appellant being prescribed frequent non-steroidal anti-inflammatory medication, which caused gastrointestinal problems. Dr Crane recorded that the appellant experienced worsening aching pain in both shoulders most of the time. He considered that there were rotator cuff abnormalities present.

   [69] First respondent’s reply, pp 28–35.

Dr Mark Herman, cardiologist

1. Dr Herman was asked by the appellant’s solicitors to examine the appellant and provide an opinion in respect of the appellant’s current claim. He reported to the appellant’s solicitors on 3 August 2017.[70]

   [70] ARD, pp 93–98.

2. Dr Herman recorded a history of the appellant’s accepted back injuries and the surgery in 1992, as well as the appellant’s complaints that, soon after the injury and surgery, he continued to experience chronic back pain, had gained weight, developed anxiety and required anti-inflammatory medication. Dr Herman took the history that the appellant was first diagnosed with hypertension in 1993, without any family history of the condition. Dr Herman further noted that erratic blood pressure was noted by the appellant’s general practitioner on 23 March 2006 and the appellant was thus referred to Dr Kilian, cardiologist. Dr Herman said that the appellant was considered to suffer from hypertension, hypercholesterolaemia, severe back pain, renal impairment and prior renal failure. Dr Herman referred to the results of an echocardiogram performed on 7 July 2005.

3. Dr Herman recorded that there was no family history of hypertension, and that the appellant developed relatively labile hypertension in 2005 in the context of chronic back pain, ingestion of anti-inflammatory medication, anxiety and weight gain. He reviewed the relevant investigations and, at the request of the appellant’s solicitor, addressed the potential further cost of treatment.

4. Dr Herman opined that hypertension was a condition which was not well understood and was probably caused by genetic factors as well as the compounding effects of environmental factors. He said that, in the appellant’s case, the combination of the back surgery, immobility, the use of anti-inflammatory medication and anxiety probably pre-disposed the appellant to hypertension, which became unstable in 2005. Dr Herman was certain that the appellant’s extended periods of pain could have provoked hypertension. He opined that the aortic dilation shown in the echocardiogram, which was a multifactorial disease, could be secondary to weak connective tissue but was often secondary to chronic hypertension. He added that if the hypertension was poorly controlled, then the condition could certainly further dilate. Dr Herman considered that ongoing treatment by a cardiologist and relevant investigations was reasonably necessary treatment. He confirmed that, in his view, the appellant’s hypertension was probably aggravated by his chronic pain, the use of anti-inflammatory medication, anxiety and weight gain.

Dr Y Kai Lee, orthopaedic surgeon

1. Dr Lee was also asked to examine the appellant and provide an opinion in respect of the appellant’s claim. He reported to the appellant’s solicitors on 5 April 2017.[71] Dr Lee recorded a history of the appellant’s back injury in 1987 and spinal surgery in 1992. He referred to further surgeries in 2006 and 2007. Dr Lee took a history of the appellant commencing a rehabilitation program in 2011, which was approved by one of the respondents and consisted of performing supervised weight-lifting exercises at his home. Dr Lee said that the appellant was asked to lift weights of up to 14 kilograms above shoulder height, which he could not do. Dr Lee noted that by September 2012, the appellant had developed hernias, had pain in both shoulders and could not lift more than three kilograms. Dr Lee referred to the surgeries performed on each shoulder by Dr Petchell in 2015 and 2017.

   [71] ARD, pp 86–92.

2. Dr Lee recorded the appellant’s complaints of ongoing pain in both shoulders and an inability to lift heavy items or lift above shoulder height because of his shoulder pain. He performed a physical examination. He reviewed the radiological investigations of the shoulders, commencing from 30 October 2013. Dr Lee was of the opinion that the rehabilitation, in which the appellant was asked to lift more than 14 kilograms above shoulder height, caused or aggravated his shoulder condition. He conceded that the appellant suffered from some degenerative pathology in his shoulders prior to the onset of severe symptoms. He advised that an underlying impingement was present but was asymptomatic prior to the appellant undertaking the rehabilitation exercises at the Centre for STRONG Medicine. He referred to the ultrasounds of the right shoulder undertaken on 30 October 2013 and 19 November 2015, which, he advised, disclosed substantial deterioration and indicated that the activities undertaken during that period caused further deterioration in that shoulder.

Associate Professor Richard Haber, consultant physician

1. A/Prof Haber was asked by the first respondent to review documentation and medical evidence in relation to the appellant’s claim in these proceedings. Dr Haber provided a report dated 15 January 2021, in which he summarised the relevant histories recorded in the various reports relied upon in these proceedings, including the appellant’s recorded weight, his blood pressure reading, cardiac condition and renal impairment.[72] A/Prof Haber noted that the list of medications in the clinical notes from the DMC Medical Centre between August 2001 and December 2016 did not include any anti-inflammatory medication and showed frequent prescriptions for medication for control of hypertension.

   [72] First respondent’s AALD dated 27 January 2021, pp 1–5.

2. A/Prof Haber referred to the appellant’s assertion that he was prescribed Naprosyn and Voltaren, which are anti-inflammatory agents, but there was no evidence that those medications were prescribed between 2001 and 2017. A/Prof Haber advised that renal impairment may cause, or may be caused by, hypertension. He noted that he did not have access to any record of the appellant’s weight or blood pressure readings, or treatment prior to December 1987.

3. A/Prof Haber considered that the findings of cardiac echo were explained by the presence of mitral valve regurgitation, which was not related to the appellant’s injury. He observed that obesity is a well-known cause of elevated blood pressure. Further, there was no evidence of the appellant being treated for anxiety other than being prescribed Diazepam which may have been prescribed as a muscle relaxant.

4. A/Prof Haber diagnosed the appellant as suffering from occasionally raised hypertension, which, with treatment, was within the normal range. He observed that the appellant’s body mass index was in the obese range. A/Prof Haber opined that the appellant’s hypertension was due to a number of factors, which included obesity, age and chronic renal impairment, none of which were referrable to the appellant’s work injury. He confirmed that the appellant was not on anti-inflammatory medication, was not receiving treatment for stress, and his recent weight was reasonably steady. He conceded that chronic pain can aggravate the tendency to develop hypertension. He concluded that there was only a minor connection between the appellant’s injury and his hypertension.

The relevant radiological evidence

1. An MRI scan of the appellant’s right shoulder was conducted on 30 September 2008.[73] The investigation disclosed a large full thickness supraspinatus tear with a retracted tendon which was severely tendinotic. There was moderate tendinosis in the supraspinatus and infraspinatus tendons. There were also large acromial spurs, ligament thickening and severe bursitis, as well as acromioclavicular joint degeneration, a tear of the glenoid labrum and clavicular osteophytes present.

   [73] ARD, pp 375–376.

2. An ultrasound of the left shoulder undertaken on 30 October 2013 showed a full thickness tear of the supraspinatus with biceps tendon effusion and fluid in the bursa.[74] An ultrasound of the right shoulder performed on 31 October 2013 showed a full thickness tear of the subscapularis and the supraspinatus with bicipital tenosynovitis and bursal fluid.[75]

   [74] ARD, p 1595.

   [75] ARD, p 1596.

3. An MRI scan of the right shoulder dated 24 February 2015 showed acromioclavicular joint degeneration, an acromial spur, a full thickness tear of the supraspinatus tendon, and a partial thickness tear of the supraspinatus tendon. There was also a tear and diffuse thickening of the subscapularis tendon, biceps tendon tendinopathy and a subluxed slip to the tendon with marked degenerative changes to the labrum.[76]

   [76] ARD, pp 390–391.

THE MEMBER’S REASONS

1. The Member quoted the extensive injury description pleaded in the ARD and identified that the issues requiring determination by him were whether the appellant suffered from medical conditions in both shoulders, hypertension, and renal and cardiac conditions as a result of his compensable back injuries. The Member noted that the claim for compensation was in respect of treatment expenses for those conditions, however advised that the amount of the claim was extensive, and it would expend a considerable amount of time if each claim was dealt with in turn. Accordingly, he advised that his determination would be limited to a consideration of the question of the causal nexus between the conditions and the accepted injuries.

2. The Member turned to the question of whether the appellant’s bilateral shoulder conditions resulted from the injury. He noted the appellant’s assertion that the appellant, while performing rehabilitation exercises at the Centre for STRONG Medicine, was required to lift weights which aggravated the pre-existing conditions in both shoulders.

3. The Member reviewed the history recorded by Dr Lee, together with his opinion that the appellant caused or aggravated his shoulder conditions when he was asked to lift more than 14 kilograms above shoulder height, and that the exercise program contributed to the need for surgery to both shoulders. The Member noted that Dr Lee reviewed the ultrasounds undertaken of the right shoulder on 30 October 2013 and 19 November 2015, which Dr Lee considered showed significant deterioration, and indicated that the exercise program was a cause of the deterioration.

4. The Member referred to the appellant’s statement evidence that he experienced significant ongoing right shoulder pain which required an ultrasound investigation on 18 December 2003 and, in the context of using his right arm to elevate himself after the back surgery in 2007, underwent an MRI scan organised by Dr Kwong in 2008. The Member further noted that the appellant said that Dr Kwong suggested surgical intervention, but the appellant felt that the pain was not sufficiently severe to warrant that intervention. The Member also noted that the appellant stated that, during the rehabilitation exercises, he was pushed to lift weights of between 9 and 10 kilograms, but he could only manage 7 kilograms before experiencing severe pain. The Member referred to the appellant’s evidence that he began to experience extreme pain in October 2013, causing him to consult Dr Pope, who referred him to Dr Petchell and to undergo surgery to both shoulders.

5. The Member summarised the submissions of the parties. The Member observed that, in December 2003, following a clinical examination, Dr McGill gave a provisional diagnosis that the appellant’s right arm symptoms were likely attributable to rotator cuff disease. The Member further observed that the only pathology identified on an X-ray and an ultrasound at that time was that of small bursal thickening, which the radiologist considered was unlikely to be the source of the symptoms. The Member referred to the history recorded by Dr Kwong in 2008 that the appellant complained of bilateral shoulder pain, severe in the right shoulder, with the onset of left arm symptoms about five weeks earlier. The Member noted Dr Kwong’s report of the pathology identified in the MRI Scan undertaken in October 2008, which referred to a significant rotator cuff tear and subacromial bursitis.

6. The Member accepted that there was no reference to further shoulder pain for several years thereafter, although Dr Singh recorded on 6 February 2012 that the appellant had “a long history of back pain, shoulder pain …”. The Member considered it curious that, although Dr Lee had been provided with the reports of Dr Kwong, Dr Lee did not explicitly mention the history of shoulder symptoms prior to the appellant performing the exercise program at the Centre for STRONG Medicine. The Member pointed out that Dr Lee’s opinion that the appellant had aggravated his degenerative condition was based upon an assumed history that the appellant’s shoulders were asymptomatic prior to him participating in the exercise program.

7. The Member further observed that, while Dr Lee referred to the shoulder investigations undertaken between 30 October 2013 and 27 September 2016, he made no mention of the MRI scan results recorded in 2008, which showed significant right shoulder pathology. The Member commented that it was common that ultrasounds and MRI scans could show different outcomes. He considered that it would have been of greater assistance if a comparison of the results of the right shoulder MRI performed in 2008 and that of 24 February 2013 was the subject of an opinion by a medical expert.

8. The Member pointed out that Dr Petchell advised that the MRI scan performed in 2015 showed the presence of a full thickness tear of the supraspinatus and a tear of the subscapularis, which was the same pathology identified by Dr Kwong in 2008. The Member said that the tears Dr Petchell sought to repair by surgery were present in 2008 and it was a matter for medical opinion to say whether the pathology present in 2008 showed deterioration in later MRI investigations.

9. The Member identified the inconsistency between Dr Lee’s evidence and other evidence. He said that Dr Lee recorded that the appellant lifted weights of up to 14 kilograms, which was almost twice the weight that the appellant reported in his statement. Further, it was a greater weight than that recorded in the Centre for STRONG Medicine clinical notes, although the Member accepted that the record may not be completely reliable. The Member considered that, in the presence of significant pre-existing pathology in the right shoulder together with pre-existing pain in both shoulders, an accurate account of the weight he was required to lift was important. The Member queried:

   “Did the lifting of weights simply bring the applicant’s attention to the pre-existing pathology in his shoulders or did it permanently exacerbate his symptoms? To pose the traditional question did the exercise program prescribed at the Centre for Strong Medicine merely reveal the pre-existing shoulder condition or was it ‘genesis’, in the sense that it caused an aggravation, exacerbation or deterioration of the condition.”[77]

   [77] Hernandez v State Rail Authority of NSW [2021] NSWPIC 159 (reasons), [44].

10. The Member referred to and quoted from the following passage in Darling Island Stevedoring & Lighterage Co Ltd v Hussey,[78] in which Windeyer J said:

    “Furthermore an existing infirmity, or an increase in its incapacitating effect, may become apparent if upon exertion the limit of bodily tolerance is reached sooner than theretofore. This is the consequence of an existing condition, not the onset of a new malady. It is manifestation not causation, revelation not genesis. Some relationship between the occurrence of death and whatever effort or activity, great or small, immediately preceded it may nearly always be postulated when a man succumbs because some organ has from infirmity due to advancing disease or decay proved at last unequal to the task of further sustaining bodily effort; and it may in one sense be proper to speak of a causal relationship. But it is not I think in this sense that exertion can properly be spoken of as accelerating death or as a contributing factor. It may often be true that if a man doomed or dying had not done this or that, he might not have died exactly when he did; he might have lived a little longer, perhaps some hours, perhaps minutes, perhaps seconds longer. But the Act is not concerned with the abbreviation of life by seconds, minutes or even hours. It is concerned with death or incapacity whereby a worker or his dependents suffer because he cannot continue at work. To say that a man died from exertion simply because he might not have died had he remained at rest doing nothing at all is only to say that he was already incapable of the exertion of work.”

    [78] [1959] HCA 55, [4].

11. The Member concluded that:

    (a)    in the absence of medical opinion based on an accurate history of the appellant’s shoulder symptoms before his attendance at the Centre for STRONG Medicine, and

    (b)    in an absence of a medical opinion taking into account the pathology evident in the appellant’s right shoulder in 2008,

    the appellant had failed to discharge his onus of proving that his back injuries materially contributed to the need for the shoulder surgery.

12. The Member said that Dr Lee had assumed that the appellant’s shoulders were asymptomatic prior to commencing the exercise program, which was a false assumption, and the history as to the weights the appellant was required to lift was clearly inaccurate. Further, Dr Lee did not consider the pathology evident in the MRI scan undertaken in 2008, which disclosed rotator cuff pathology in almost identical terms to the scan performed in 2015. The Member concluded that Dr Lee’s opinion was significantly different to the facts proven in the case, referring to Paric v John Holland (Constructions) Pty Ltd.[79]

    [79] [1985] HCA 58 (Paric).

13. The Member remarked that the respondents could have sought an opinion from the appellant’s treating doctors, Dr Pope and Dr Petchell, on the issue of causation, but the onus rests on the appellant to adduce sufficient evidence to persuade the Commission of his case. The Member observed that, had the history recorded by Dr Lee been accurate, there would have been no requirement to adduce evidence from the treating doctors because the respondents did not adduce competing specialist opinion evidence on the issue. The Member explained that, as Dr Lee’s evidence was flawed, the absence of evidence in favour of the appellant provided by his treating doctors was fatal.

14. The Member turned to the issue of whether the appellant’s hypertension was causally related to the accepted injuries. He observed that the appellant relied on the opinion of Dr Herman. The Member summarised the history recorded by Dr Herman and his opinion. The Member also took into account the evidence of Dr Haber, who was asked to provide an opinion on behalf of the first respondent. The Member particularly noted Dr Haber’s conclusion that, in his opinion, the appellant’s injuries only contributed to a minor degree to his hypertension and the need for treatment of the hypertension.

15. The Member summarised the appellant’s statement evidence about his hypertension and also summarised the parties’ submissions. The Member observed that it was difficult to determine whether the hypertension, the cardiac condition and the renal condition were causally related to the injuries when the only comprehensive opinion in support of the appellant’s case was that of Dr Herman, which was provided in 2017. The Member said that there was no explanation provided as to why there was no evidence addressing the issue from any of the many specialists who treated the appellant over the previous 25 years, and in particular, there was no report from Dr Pope. The Member reasoned that, where the time of onset and the causes of the hypertension were in issue, evidence as to those matters may have been invaluable. The Member observed that in circumstances where the evidence is evenly balanced, the absence of evidence from a treating doctor may result in a finding that there is insufficient proof of the appellant’s case. The Member added that hypertension is very common in men of the appellant’s age (75 years) and that this may have been one of the factors Dr Herman and Dr Haber were referring to when they described the cause of hypertension as “multifactorial.”

16. The Member further added that the aetiology of the appellant’s hypertension was critically significant in the determination of the remaining issues. The Member took the view that there was evidence to support the notion that hypertension could cause, or materially contribute to, a renal condition and the appellant’s cardiac condition.

17. The Member referred to the appellant’s statement evidence that he was diagnosed with hypertension after his surgery in 1992 and that the condition worsened over the years. The Member noted that the first record of the appellant being diagnosed with hypertension was the clinical note recorded by Dr Pope on 20 August 2001 and there was no indication in that entry as to when the appellant’s hypertension had commenced. The Member remarked that the appellant was attempting to recall matters that occurred 30 years ago, and he may well have genuinely believed his hypertension commenced in 1992. The Member said, however, that it was very difficult to prefer the appellant’s recollection over that of Dr Winer, who saw the appellant in 1988 and recorded a history of ceasing alcohol six months earlier because of hypertension and also recorded a medical history of the onset of hypertension four years previously. Further, the appellant had resumed selected work duties in April 1988, then upgraded to full duties before experiencing worsening back pain.

18. The Member observed that, in cases where the parties rely upon events that occurred a long time ago, the Commission usually prefers the evidence contained in the contemporaneous or near contemporaneous documents, which frequently provide a more accurate account of events than the account provided by the recollections of a witness. The Member cited authorities for that proposition.

19. The Member considered that the criticisms made by the appellant about the truth of Dr Winer’s evidence were of little weight. The Member was of the view that it could not be said that Dr Winer was biased or that other aspects of the history recorded by him were inaccurate. He said that the appellant’s assertions that his blood pressure was normal at medical examinations before and after that time were dependent upon the appellant’s recollections and not supported by documentary evidence. The Member concluded that he preferred the evidence that the appellant’s hypertension pre-dated the significant injury in 1987, as well as the first spinal surgery. The Member commented that this conclusion affected the probative value of the opinion of Dr Herman, who assumed that the appellant developed hypertension in the context of chronic pain, immobility, weight gain and anxiety after the spinal surgery. The Member said that the evidence did not support that those factors relied upon by Dr Herman existed.

20. The Member agreed with the appellant’s submission that Dr Haber provided support for the causal connection between the accepted injuries and the hypertension, and the history recorded by Dr Haber more accurately reflected the facts found. The Member accepted the opinion of Dr Haber that the appellant’s hypertension was aggravated by chronic pain. The Member noted that Dr Haber specifically excluded weight gain and depression as causative factors. The Member said, however, that there was ample evidence from the clinical records dating from 2001 that the appellant suffered weight gain and depression as a consequence of his back injuries. The Member noted that the appellant’s evidence was that he was prescribed non-steroidal anti-inflammatory drugs after the surgery. He further noted that the appellant was also prescribed Vioxx for a brief period after 2001.

21. The Member again referred to the appellant being prescribed Vioxx in the early 2000’s and noted that Dr Gillin recorded that Duloxetine, which was prescribed in 2009 to treat the appellant’s depression, caused the appellant’s blood pressure to rise. The Member reiterated that it was unclear whether the ingestion of those medications had a continuing effect on the appellant’s underlying hypertension and if so, to what extent.

22. The Member concluded that it was probable that the back injuries had a greater effect on the appellant’s hypertension than the “minor degree” described by Dr Haber. The Member thought it plausible that those factors caused the appellant’s hypertension to become labile in 2001 and again in 2005, but whether the need for treatment resulted from the continuing effect of the injuries or whether it was the progression of the underlying hypertensive condition was unclear. The Member considered that the appellant’s hypertension was well controlled by medication over the last ten years.

23. The Member considered the issue in respect of the appellant’s cardiac condition, hypercholesterolaemia and renal condition. He reviewed the submissions made by the parties in relation to those issues.

24. The Member referred to the first respondent’s submission that Dr Herman did not have the necessary expertise in order to provide an opinion on the cause of the appellant’s renal condition. He rejected that submission. He noted that Dr Herman was a cardiologist and that he more than likely often treated patients with hypertensive conditions so that the effects of hypertension were within his specialty. The Member added that, as a medical practitioner, Dr Herman was qualified to provide an opinion and, in the absence of a contrary opinion from a renal specialist, it was open for him to accept Dr Herman’s opinion.

25. The Member pointed to the evidence of Dr Herman, in which he clearly accepted that the two conditions were causally connected, and that of Dr Haber who conceded renal impairment can be the cause of, or be caused by, hypertension. The Member regarded it as important that Dr Puranik, who was one of the appellant’s treating cardiologists, diagnosed the appellant’s condition as “hypertensive nephrosclerosis,” which obviously pointed to a connection between the appellant’s hypertension and the renal condition.

26. The Member considered that the issue in respect of the cardiac condition was difficult given that the appellant suffered from various conditions which were potentially cardiac conditions. He pointed out that Dr Herman considered that there was an association between the appellant’s aortic dilation and his hypertension and Dr Haber considered that the cardiac echo could be explained by mitral valve regurgitation, which was not related to the injuries. The Member thought it likely that Dr Haber was of the view that neither the aortic dilation nor the mitral valve regurgitation was caused by the appellant’s hypertension, which made it difficult to identify which of the appellant’s cardiac conditions were caused or materially contributed to by his hypertension.

27. The Member referred to his earlier conclusion that the appellant had experienced hypertension prior to the spinal surgery. He reiterated that there was no specific evidence as to whether the appellant’s renal and cardiac conditions were caused by the underlying hypertension or the effects of the aggravation of his hypertension caused by the back injuries. The Member was of the view that it was impossible to determine the issue of whether the renal and cardiac conditions were a consequence of the back injuries or that the need for treatment of those conditions resulted from those injuries.

1. The Member concluded that the appellant’s back injuries materially aggravated the appellant’s hypertension in 2001 and 2005 but that the appellant had failed to establish on the balance of probabilities that the conditions in both shoulders, as well as the renal and cardiac conditions, resulted from the accepted back injuries.

2. The Certificate of Determination issued on 2 June 2021 records:

   “The Commission determines:

   1.     The applicant suffered injuries to his back arising out of and in the course of his employment with the first respondent on18 December 1973,16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent.

   2.     As a result of these injuries the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005.

   3.     The applicant has not established that he suffered a consequential medical condition of his shoulders or consequential cardiac or renal conditions as a result of the injuries in 1 above or that the need for treatment of these conditions result from these injuries.

   4.     Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to section 60 in accordance with order 2.”

GROUNDS OF APPEAL

1. The appellant alleges the Member erred, relying upon the following grounds of appeal:

   (a)    Ground One: The Member erred in law by reversing the onus of proof when he indicated that it was impossible to determine whether the appellant’s renal and cardiac conditions were caused by the hypertension or the effects of the hypertension as aggravated by the appellant’s back injuries;

   (b)    Ground Two: The Member erred in law when he determined that the Commission was unable to conclude the appellant’s renal or cardiac conditions were caused by the effects of the hypertension as aggravated by his back injuries or that the treatment of these conditions resulted from the accepted back injuries;

   (c)    Ground Three: The Member erred in fact when he concluded the Commission was unable to conclude that the appellant’s renal or cardiac conditions were consequential on his back injuries or that the need for medical treatment of these conditions resulted from the accepted back injuries;

(d)    Ground Four: The Member erred in law by determining the appellant failed to discharge the onus of proving that his back injuries materially contributed to his shoulder condition;

(e)    Ground Five: The Member erred in fact by determining the appellant failed to discharge the onus of proving that his back injuries materially contributed to his shoulder condition;

(f)    Ground Six: The Member erred in law and/or fact by finding the assumptions underlying Dr Lee’s opinion were significantly different to the facts proven, and

(g)    Ground Seven: The Member erred in law and/or fact when he determined that the treatment of the appellant’s renal, cardiac, and shoulder conditions were not as a result of the accepted injuries.

SUBMISSIONS

1. The first respondent, unhelpfully, and contrary to Practice Direction WC3, does not address each ground of appeal separately. I have summarised the first respondent’s submissions after the submissions made by the appellant and the second respondent, and, where they appear relevant to a ground of appeal, they have been taken into account.

2. A delegate of the President granted leave to the appellant to file submissions in reply out of the time set in the timetable issued by the delegate. The appellant responded generally to the first appellant’s submissions, as well as to Grounds One and Two of the second respondent’s submissions. The appellant did not respond to Grounds Three to Seven of the second respondent’s submissions.

Ground One

The appellant’s submissions

1. The appellant refers to the Member’s conclusion that he could not determine that the appellant’s renal and cardiac conditions were consequential upon the back injuries or that the need for treatment for those conditions resulted from the injury. The appellant further refers to the Member’s reasoning for that conclusion, which was that the appellant suffered from hypertension before his surgery and there was no specific evidence addressing the issue. The appellant submits that this reasoning demonstrates that the Member reversed the onus of proof. The appellant relies upon the observations of Dixon CJ and Menzies J in Watts v Rake[80] in relation to the onus of proof, and also Barwick CJ’s observations in Purkess v Crittenden.[81]

   [80] [1960] HCA 5 (Watts), [160] and [163]–[164].

   [81] [1965] HCA 34 (Purkess), [168].

2. The appellant concedes that he bears the onus of proving that his renal and cardiac conditions arose as a result of the back injuries but submits that what was required was to show that the accepted injuries materially contributed to those conditions. The appellant refers to Roche DP’s reasoning in Murphy v Allity Management Services Pty Ltd[82] that the accepted injuries did not have to be the only, or even a substantial cause of the conditions.

   [82] [2015] NSWWCCPD 49 (Murphy), [57]–[58].

3. The appellant asserts that the evidence referred to by him in both his written and oral submissions was sufficient to show that the back injuries had materially contributed to the appellant’s renal and cardiac conditions. The appellant points to the Member’s reasoning at [90] in which the Member noted that Dr Herman accepted a causal relationship between the renal and cardiac conditions and the appellant’s hypertension. Further, the Member noted the description provided by Dr Puranik that the appellant suffered from hypertensive nephrosclerosis, which the Member considered clearly implied a connection between the appellant’s hypertension and his renal condition.

4. The appellant refers to the Member’s observation that Dr Herman associated the appellant’s aortic dilation with his hypertension but conceded that the causes were multifactorial.

5. The appellant again refers to Watts and Purkess and submits that it was the respondent’s onus to establish that the back injuries were excluded from materially contributing to the appellant’s renal and cardiac conditions.

6. The appellant asserts that the opinion of Dr Haber was the “high point” of the respondent’s case. The appellant points to Dr Haber’s opinion that renal impairment may cause or be caused by hypertension, but that Dr Haber did not have records pertaining to the appellant’s weight, blood pressure readings or treatment for blood pressure prior to December 1987. The appellant submits that the opinion of Dr Haber was not evidence of the kind required by the High Court in Watts and Purkess. The appellant explains that it was not sufficient to merely suggest the presence of a pre-existing condition or its relationship to the appellant’s condition.

7. The appellant submits that the respondents failed to satisfy their legal onus and that this is evident from the Member’s finding that there was an absence of specific evidence addressing the issue. The appellant says that such absence should not, therefore, have been detrimental to the appellant’s claim. The appellant contends that the Member’s finding which is the subject of this ground of appeal amounted to a reversal of the onus of proof and thus constituted an error of law.

The second respondent’s submissions

1. The second respondent disputes that the Member reversed the onus of proving that the appellant’s renal and cardiac conditions arose as a result of the back injuries. The second respondent asserts that the appellant did not raise Watts or Purkess in either his oral or written submissions to the Member and did not otherwise submit that the burden of proof shifted to the respondents.

2. The second respondent points to the Member’s reasons at [93], in which the Member explained his conclusion that the renal and cardiac conditions did not result from the accepted back injuries. The second respondent submits that the ultimate persuasive onus rests with the appellant which he failed to discharge, referring to the observation of Mason P in Brown v Lewis[83] in which Mason P observed:

   “If the plaintiff’s case is left so full of holes that the necessary facts cannot be found or inferred then the relevant part of the claim must fail, because the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake) but the ultimate persuasive onus remains with the plaintiff”.[84]

   [83] [2006] NSWCA 87, (Lewis).

   [84] Lewis, [83].

3. The second respondent adds that the Member’s conclusion that the appellant had not established his case on the balance of probabilities was open to the Member, who did not commit legal error.

The appellant’s reply to the second respondent’s submissions

1. The appellant submits that the second respondent’s submissions are misconceived and are not relevant to the appeal. The appellant says that the cases were relied upon in order to demonstrate error in the Member’s determinations. The appellant asserts that there was no need to have made reference to those cases at the primary level because the errors in the determinations had not yet been delivered.

2. The appellant further asserts that the second respondent has failed to grapple with the appellant’s submissions in relation to the onus which the second respondent bore and has simply emphasised that the appellant bore the onus of proof, which the appellant had conceded.

Ground Two

The appellant’s submissions

1. The appellant submits that the Member erred in law by concluding that the appellant’s renal and cardiac conditions did not result from his back injuries. The appellant refers to Murphy and reiterates that all that was required was for the Member to be satisfied that the accepted injuries materially contributed to the consequential conditions.

2. The appellant asserts that the Member did not adopt that approach and instead placed a higher burden on the appellant in establishing causation. The appellant refers to the Member’s observations about the potential effect the hypertension may have had on the renal and cardiac conditions and the Member’s failure to give consideration to whether the back injuries materially contributed to the consequential conditions. The appellant asserts that the Member did not go so far as to say that the appellant had not adduced evidence sufficient to establish that the back injuries materially contributed to the disputed conditions. The appellant submits that the Member thus erred in law.

The second respondent’s submissions

1. The second respondent submits that the Member identified the issues he was required to determine and specifically excluded the issue of whether the need for treatment of both shoulders, hypertension and the renal and cardiac conditions resulted from the accepted injuries and the appellant did not object to that approach. The second respondent contends that the Member was, therefore, not required to apply Murphy or determine whether the back injuries materially contributed to renal and cardiac conditions. The second respondent submits that the appropriate test is that set out in Kooragang Cement Pty Ltd v Bates.[85]

   [85] (1994) 35 NSWLR 452 (Kooragang).

2. The second respondent submits in the alternative that there was either an absence of specific evidence to support the test in Murphy, as the Member pointed out in his reasons at [93], or that the evidence was not sufficiently persuasive of the issue to be determined.

The appellant’s reply to the second respondent’s submissions

1. The appellant asserts that the second respondent’s submissions in respect of this ground of appeal are also misconceived and are not clear. The appellant contends that this ground of appeal was limited to the issue of causation of the appellant’s renal and cardiac conditions and not the treatment expenses that flowed from those conditions.

2. The appellant submits that there was no need for him to raise an objection that the Member proceeded to determine the issues of causation and would deal with the issue of treatment expenses following those determinations. The appellant contends that the second respondent’s submissions are erroneous and submits that Roche DP’s observations in Murphy are relevant and appropriate. The appellant adds that in State of New South Wales v Goonan,[86] I made the observation that the phrase “results from” incorporates the expression “materially contributes to.” The appellant asserts that the second respondent’s submissions ought not to be accepted.

Ground Three

[86] [2020] NSWWCCPD 28.

The appellant’s submissions

1. The appellant asserts that the Member’s conclusion that he could not determine that the appellant’s renal and cardiac conditions were consequential upon the back injuries was an error of fact, which flowed from the errors identified in Grounds One and Two of the appeal. The appellant asserts that there was ample evidence to satisfy the requisite causal connection, that is, that the back injuries materially contributed to the renal and cardiac conditions.

2. The appellant submits there was evidence that the cardiac and renal conditions were related to the appellant’s hypertension. The appellant refers to the Member having found that the back injuries aggravated the appellant’s hypertension, which became labile in 2001 and 2005. The appellant asserts that the evidence included Dr Herman’s view that a causal connection existed as well as evidence from the treatment providers to that effect. The appellant says that, in particular, the evidence from the treating doctors showed that the renal condition was related to his hypertension and his back injuries. Further, the cardiac condition was related to the weight gain the appellant experienced because of his inability to exercise as a result of the back injuries. The appellant identifies the clinical entries in the clinical records of the DMC Medical Centre and of A/Prof Gillin as well as the various reports of Dr Kilian, Dr Puranik, Dr Ilsar and Dr Garrick.

3. The appellant asserts that the Member did not indicate why that evidence did not provide a proper basis upon which he could find that the back injuries materially contributed to the hypertension, and renal and cardiac conditions. The appellant refers to the observations of Roche DP in Raulston v Toll Pty Ltd[87] as to the relevant principles applicable to disturbing a primary decision maker’s determination on appeal to a Presidential Member, as well as the summary of those principles set out by me in Jamal v Nonabel Concrete Pty Ltd.[88] The appellant submits that, having regard to those principles, the Member’s conclusions were wrong and constituted error, particularly in the light of the evidence referred to above.

   [87] [2011] NSWWCCPD 25 (Raulston).

   [88] [2018] NSWWCCPD 42 (Jamal).

The second respondent’s submissions

1. The second respondent disputes the appellant’s submission that there was ample evidence to support his case as to the causal connection. The second respondent further disputes that the Member’s findings were contrary to the authorities of Raulston and Jamal and submits that the Member did not overlook material facts or give undue weight to the available evidence. The second respondent asserts that the Member adequately explained the conclusions he reached and did not fall into factual error.

Ground Four

The appellant’s submissions

1. The appellant asserts error on the part of the Member in finding that the appellant failed to discharge the onus of proving that his back injuries materially contributed to the need for his shoulder surgery and, because Dr Lee’s opinion was flawed, the absence of an opinion from the appellant’s treatment providers supporting the causal connection was fatal. The appellant says that it was conceded that the appellant suffered from an underlying condition in both shoulders and that shoulder symptoms presented in about 2003 or 2004.

2. The appellant points to his statement evidence that, following the lumbar surgery in 2007, he experienced shoulder pain when undergoing rehabilitation at the Centre for STRONG Medicine. The appellant submits that the evidence shows that the shoulders were asymptomatic prior to attending that rehabilitation. The appellant refers to the history taken by Dr Lee and submits that the history recorded by a doctor in a medical report is evidence of those facts.[89]

   [89] Guthrie v Spence [2009] NSWCA 369 (Spence).

3. The appellant asserts that the records of the DMC Medical Centre, together with the absence of any contrary evidence, including any evidence adduced by the respondents, show that there was no reason to fail to accept the appellant’s evidence.

4. The appellant submits that his evidence was that in 2013, he began to experience extreme pain in both shoulders and ultimately underwent surgery and that he was required to lift weights of up to 9 or 10 kilograms in rehabilitation but could only manage up to 7 kilograms because of shoulder pain. The appellant says that Dr Lee recorded the required lifting weight as 14 kilograms. The appellant submits that, in his submissions to the Member, he referred to the evidence from the treating doctors which was consistent with the appellant’s complaints and the timing of those complaints.

5. The appellant asserts that this evidence was sufficient to establish causation. Further, there was no break in the chain of causation caused by the treatment intervention, as discussed in Mahoney v J Kruschich (Demolitions) Pty Ltd.[90] The appellant submits that the Member only needed to be satisfied that the back injuries materially contributed to the shoulder conditions. The appellant contends that the Member did not determine the matter on this basis and reversed the onus of proof, resulting in errors of law.

   [90] [1985] HCA 37.

6. The appellant asserts further error of law on the part of the Member by asking whether the appellant suffered from onset of shoulder conditions or whether the symptoms occurring during exercise were simply a manifestation of a pre-existing condition. The appellant refers to the Presidential decisions in Kumar v Royal Comfort Bedding Pty Ltd[91] and Trustees of the Roman Catholic Church for the Diocese of Paramatta v Brennan,[92] and submits that, in accordance with those authorities, asking that question was erroneous. The appellant submits that the fact that he experienced symptoms while undertaking the lifting exercises should have been sufficient to establish causation.

   [91] [2012] NSWWCCPD 8 (Kumar).

   [92] [2016] NSWWCCPD 23 (Brennan).

7. The appellant says that he accepts that he was required to satisfy the onus in respect of causation and points out that his shoulders were asymptomatic prior to undertaking the lifting exercises. The appellant again refers to Watts and Purkess and asserts that it was the respondents’ responsibility to adduce evidence of symptoms prior to the attendance at the rehabilitation clinic, the causal significance of those symptoms and the significance of the results recorded in the MRI scan in 2008. The appellant says that such evidence was required to rebut the appellant’s evidence and was not adduced by the respondents so that the Member reversed the onus of proof and committed an error of law.

The second respondent’s submissions

1. The second respondent refers to the Member’s reasons at [46] for determining that the appellant had failed to discharge the onus of proof. That is, there was an absence of medical opinion which was based on an accurate history of the appellant’s bilateral shoulder symptoms that were present prior to the appellant’s participation in the rehabilitation program and which took into account the pathology evidence on the MRI scan undertaken in 2008. The second respondent submits that the Member’s reasoning process for reaching his conclusion, recorded at [32]–[48] of his reasons, was quite clear. The second respondent reiterates that the appellant bore the onus of proving that his shoulder conditions resulted from his accepted back injuries, that the Member was entitled to weigh all of the evidence and was entitled to conclude as he did. The second respondent asserts that the Member did not make any error, whether of fact or law.

Ground Six: The Member erred in law and/or fact by finding the assumptions underlying Dr Lee’s opinion were significantly different to the facts proven

1. Ground Six asserts that the Member erred in law by finding that the facts assumed by Dr Lee were significantly different to the proven facts.

2. Dr Lee did not record a history of the onset of right shoulder pain in 2008 or review the MRI scan performed at that time. The factual history as to the extent of the weights the appellant was required to lift was materially inconsistent with the appellant’s evidence. Dr Lee’s opinion was that lifting weights of greater than 14 kilograms above shoulder level “can certainly cause further shoulder injury.”[104] He did not address the effect of lifting weights below 10 kilograms. Thus, the history upon which he based his opinion as to what prompted the symptoms was inconsistent with the appellant’s own evidence and the evidence recorded in the notes from the Centre for STRONG Medicine.

   [104] Report dated 5 April 2017, p 6 [5], ARD, p 91.

3. Dr Lee’s opinion was based on the assumed fact that the appellant was lifting weights of greater than 14 kilograms above shoulder height. It must be established that the facts on which the opinion is based form a proper foundation for the opinion.[105] The history obtained by the doctor and upon which the doctor based his expert opinion was not supported by the admissible evidence and in fact was contradictory. The history was also absent any specific reference to the earlier history of symptoms other than to note “pre-existing impingement.” Dr Lee also made no reference to the findings on the 2008 MRI scan, or to the factual context asserted by the appellant in which the 2008 investigations were undertaken. It was open to the Member to find that the opinion had no probative value.

   [105] Paric; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11.

4. The appellant submits that the failure by Dr Lee to refer to the symptoms experienced in 2003 or 2004 was a “trifling matter.” Of itself, that failure may not have led to the rejection of Dr Lee’s evidence. However, the Member took into account the other omissions and inconsistencies outlined above. Of great significance was the fact that Dr Lee failed to refer to the symptoms in 2008 and to the extent of the findings on the MRI scan undertaken at that time.

5. The appellant submits that the Member asked himself the wrong question when considering whether the condition was caused by performing those exercises or whether it became symptomatic because of the pre-existing condition. As observed by Kirby P in Kooragang, the question of whether the condition results from the injury is a question of fact, to be determined on the basis of the evidence, including, where applicable, expert evidence. A relevant question was whether the facts went “beyond mere predisposing circumstances.”[106] The Member had no medical evidence to assist him in the face of evidence of “predisposing circumstances,” namely of significant pre-existing pathology and where the connection between the pain and the event was merely temporal. In those circumstances, the Member could not satisfy himself of the asserted causal connection. The Member did not ask himself the wrong question and determined the matter on the basis of the evidence before him. The appellant has not demonstrated error on the part of the Member and this ground of appeal fails.

   [106] Kooragang, 464.

Grounds One, Two and Three

Ground One: The Member erred in law by reversing the onus of proof when he indicated that it was impossible to determine whether the appellant’s renal and cardiac conditions were caused by the hypertension or the effects of the hypertension as aggravated by the appellant’s back injuries

1. The first ground asserts error in that the Member reversed the onus of proof in his consideration of the evidence relating to the asserted connection between the appellant’s hypertension and his renal and cardiac conditions.

2. The appellant’s criticisms at Ground One relate to the Member’s conclusions at [92]–[93] of his reasons, in which he said:

   “It is not entirely clear whether the doctors are addressing the same issue. Doing the best I can, however, it is likely that Dr Haber’s opinion is that neither the mitral valve regurgitation nor the aortic dilation is caused by the applicant’s hypertension. If that is so, it is difficult to isolate what aspects of the applicant’s cardiac condition may have been caused or materially contributed to by hypertension.

   The primary difficulty confronting the applicant in respect of both conditions is that he experienced hypertension prior to his spinal surgery. In the absence of specific evidence addressing the issue it is impossible to determine whether the applicant’s renal and cardiac conditions have been caused by the underlying hypertension or the effects of the hypertension as aggravated by the applicant’s back injuries. In those circumstances, the Commission is unable to conclude that the applicant’s renal or cardiac conditions are consequential on his back injuries or that the need for medical treatment of these conditions result[s] from the accepted back injuries.” (emphasis added)

3. The appellant asserts that the Member was required to determine whether the accepted injuries materially contributed to the renal and cardiac conditions. The Member was clearly aware that that was what he was required to do. The emphasised passage from his reasons above indicates that he was aware that he was required to ascertain whether the hypertension materially contributed to the cardiac condition. He had already explained that much depended upon whether the appellant’s accepted injuries materially contributed to his hypertension when he observed:

   “Thirdly, it is quite evident that the aetiology of the applicant’s hypertension is of critical significance to the determination of the remaining issues in the case. In my opinion there is reasonably cogent evidence that hypertension can cause or materially contribute to a renal condition and some aspects of his cardiac condition. I will address … the causation of both these conditions briefly below.”[107]

   [107] Reasons, [71].

4. The appellant refers to the Member’s reasons for concluding that it was impossible to determine the issue of whether the conditions were, or the need for treatment of those conditions was, a consequence of the back injuries. The appellant identifies the reasons given as the Member’s finding of fact (which fact is not challenged on appeal) that the appellant suffered from hypertension prior to the surgery to his back and his observation that there was an absence of evidence that the hypertension materially contributed to those conditions. The appellant says that the Member reversed the onus of proof, relying on Watts and Purkess as authorities supporting that submission. The relevant passages relied upon from Watts are:

   “If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as the contributory cause. If it be the case that at some future date the plaintiff would in any event have reached its present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”[108]

   And:

   “It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.”[109]

   [108] Per Dixon CJ, [2].

   [109] Per Menzies J, [8].

5. Watts concerned a claim for damages brought by the appellant, in which the respondent sought mitigation of the damages because, it was alleged, the appellant’s pre-injury medical condition would have impacted the appellant’s ability to earn in any event. The authority was subsequently considered by the High Court in Purkess in which the Court observed that the primary Judge, in applying Watts, appeared to be of the view that that authority suggested “that where a plaintiff asserts that he has become permanently disabled as a result of a negligent act on the part of the defendant and the defendant sets up a case that by reason of a pre-existing condition the plaintiff would in any event have become permanently disabled within an ascertainable period, the onus of proof on this aspect of the case rests upon the defendant.”[110]

   [110] Purkess per Barwick CJ, Kitto and Taylor JJ, [3].

6. The Court did not accept that Watts formulated that proposition. Their Honours said (citations omitted):

   “We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v Rake was essentially concerned.”[111]

   [111] Purkess, [4].

7. The above passages, in my view, do not detract from the basic principle that the appellant was required to produce sufficiently probative evidence that his renal and cardiac conditions resulted from his accepted injuries in order to establish his case. The appellant accepts that he bore the onus of proving that those conditions arose as a result of the back injuries. The Member was of the view that there was evidence that hypertension can cause or materially contribute to a renal condition and some aspects of the appellant’s cardiac condition. In respect of the renal condition, both Dr Herman and Dr Haber accepted that there could be a connection between hypertension and renal impairment and Dr Puranik’s diagnosis was self-evident of that fact. This was not sufficient, however, for the appellant to make out his case. The Member found that the appellant’s hypertension pre-existed the back injury occurring in 1987 and the back surgery. Having found the appellant suffered from a pre-existing condition, he then determined that the hypertension was aggravated on two occasions by the effects of the back injuries. The Member looked to the evidence that the appellant relied upon to establish that case.

8. He determined that, in the case of the cardiac condition, the cause of which both medico-legal experts said was multifactorial, the condition from which the appellant suffered could not be identified. He said that this was particularly apparent where Dr Herman pointed to the condition of aortic dilation and Dr Herman attributed the findings to mitral valve regurgitation. According to the Member, the appellant suffered from a number of conditions which could be classed as “cardiac” conditions.

9. In respect of the renal condition, the Member identified the fact that he had determined that the appellant’s hypertension was pre-existing posed a “primary difficulty.” The difficulty was that there was no specific evidence that dealt with whether the hypertension, as aggravated in 2001 and 20005, materially contributed to the renal impairment, which was a different question to the hypotheses offered by Dr Herman and Dr Haber.

10. The appellant has not pointed to any evidence that displaces the Member’s reasoning. The appellant failed to adduce sufficient evidence to satisfy the Member of the case he presented, which was, in the context of this ground of appeal, that the aggravated hypertension materially contributed to the renal and cardiac conditions. In circumstances where the appellant failed to make out his prima facie case, which was a pre-requisite to the burden shifting to the respondent to disprove that case in the terms discussed in Watts and Purkess, the respondent was not required to adduce evidence that proved that there was no causal connection.

11. The Member did not reverse the onus of proof and Ground One of the appeal fails.

Ground Two: The Member erred in law when he determined that the Commission was unable to conclude the appellant’s renal or cardiac conditions were caused by the effects of the hypertension as aggravated by his back injuries or that the treatment of these conditions resulted from the accepted back injuries

1. In respect of Ground Two, the appellant asserts that the Member erred in law by finding that he was unable to conclude that the renal and cardiac conditions were caused by the aggravation of the appellant’s hypertension. The appellant says that the Member needed only to be satisfied that the accepted injuries materially contributed to the renal and cardiac conditions, in accordance with Murphy. The appellant says that the Member did not approach the matter on that basis and instead required a higher standard to be met, by:

   (a)    considering the effect that the underlying hypertension may have had, and

   (b)    failing to make any mention as to whether he considered that the back injuries contributed to those conditions.

2. The appellant submits that the Member did not say in his reasons that the appellant had not adduced sufficient evidence that the test of material contribution had been met.

3. I have discussed and noted above the Member’s awareness that he needed to be satisfied that the hypertension materially contributed to the conditions. I have also discussed the complaint that the Member applied the wrong standard of proof. For the same reasons, neither of those allegations of error are made out.

4. The submission made at [184](b)] above is not adequately explained by reference to the evidence or by further submissions under this ground of appeal, although it appears to relate to the appellant’s allegation of error brought in Ground Three of the appeal, which is dealt with below.

5. It follows that Ground Two of the appeal does not establish error on the part of the Member and this ground fails.

Ground Three: The Member erred in fact when he concluded the Commission was unable to conclude that the appellant’s renal or cardiac conditions were consequential on his back injuries or that the need for medical treatment of these conditions resulted from the accepted back injuries

1. The appellant asserts error of fact on the part of the Member in respect of his conclusion that he was unable to conclude that the appellant’s renal and cardiac conditions were consequential upon his back injuries. He relies on his submissions made in respect of the first two grounds of appeal. The appellant also referred to numerous entries in the various clinical notes and the medical reports from the appellant’s treating doctors, which he says provide ample evidence that there was a material contribution to the renal and cardiac conditions from the ingestion of medication for treatment of the back injuries.

2. A review of the transcripts and the evidence referred to by the appellant both in the arbitration and on appeal discloses that the appellant’s complaint of error is referrable to the appellant’s ingestion of medication to treat his back injuries, which he asserts was a causative factor in the development of his renal condition and cardiac issues.

3. The appellant submits that the Member did not indicate why the evidence referred to did not enable him to find that there was a material contribution between the accepted injuries, the hypertension and the “disputed conditions.”

4. It is apparent that, while the Member placed some focus on the appellant’s hypertension and gave cogent reasons for his conclusions in respect of that condition, he did not give full consideration to the case put to him by the appellant in respect of the cardiac and renal conditions. The Member appeared to accept that there can be a connection between hypertension and a renal condition but concluded that there was insufficient evidence to establish that, in this case, the aggravated hypertension materially contributed to the renal condition. That conclusion was open to him. However, he did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.

5. The appellant’s submission in this regard was clearly argued, was made on the basis of documentary evidence in the proceedings and was a significant part of the appellant’s case. A failure to deal with a significant submission in the appellant’s case constitutes an error of law and may constitute a denial of natural justice.[112] It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.

   [112] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

6. Ground Three of the appeal succeeds.

Ground Seven: The Member erred in law and/or fact when he determined that the treatment of the appellant’s renal, cardiac, and shoulder conditions were not as a result of the accepted injuries

1. The appellant submits that, as a consequence of the errors demonstrated above, the Member’s determinations that the renal, cardiac and shoulder conditions were not causally related to the back injuries and the appellant’s hypertension were erroneous. This purported ground of appeal is simply a repetition of the earlier grounds of appeal with no new submissions. Given my findings above it is not necessary to deal with this ground.

CONCLUSION

1. The Member’s finding that appellant suffered an aggravation of his pre-existing hypertension is not challenged in the appeal. Additionally, the appellant is unsuccessful in his challenge to the Member’s determinations that the Member was not satisfied that the appellant’s bilateral shoulder conditions resulted from the back injuries and that the renal and cardiac conditions did not result from the hypertension. Thus, those determinations are confirmed. The appeal succeeds in respect of the Member’s findings that he was not satisfied that the appellant’s renal and cardiac conditions resulted from the accepted back injuries. Those issues remain for determination.

2. Section 352(7) of the 1998 Act provides that, on appeal, the Member’s decision may be confirmed or revoked and a new decision made in its place, or the matter may be remitted to a Member for re-determination. In the circumstances of this case, it is my view that it is appropriate, given the nature of the remaining issues, that the matter is remitted to a different Member for determination of those remaining issues.

1. The matter is therefore remitted to another Member for determination of whether the appellant’s

   (a)    renal condition, and

   (b)    cardiac condition

   result from the appellant’s injuries to his back.

DECISION

1. The Member’s Certificate of Determination dated 2 June 2021, paragraphs 1 and 2 are confirmed.

2. The Certificate of Determination, paragraphs 3 and 4 are revoked and in their place the following orders are made:

   (a)    Award for the respondents in relation to the applicant’s bilateral shoulder conditions;

   (b)    Award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension;

   (c)    The matter is remitted to another member for determination of whether the applicant’s

   (i)renal condition, and

   (ii)cardiac condition

   resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.

Elizabeth Wood

DEPUTY PRESIDENT

17 February 2022