Hinde v Tarago Operations Pty Ltd - [2023] NSWPICPD 66

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hinde v Tarago Operations Pty Ltd [2023] NSWPICPD 66
APPELLANT:	Barry Hinde
RESPONDENT:	Tarago Operations Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3702/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	2 November 2023
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination dated 7 October 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – whether the appellant sustained an injury to the cervical spine - credit and cross-examination – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 applied – whether Member failed to engage with the evidence and submissions made – fact finding – Nguyen v Cosmopolitan Homes [2008] NSWCA 246 applied – approach to expert evidence – Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Gerard Malouf & Partners
Respondent:
Mr P Stockley, counsel
Lee Legal Group
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	7 October 2022

INTRODUCTION

This is an appeal from a Certificate of Determination dated 7 October 2022 in which the Member determined that the appellant had not suffered an injury to his cervical spine on 12 November 2019.
The Certificate of Determination provided:
“1. Award for the respondent on the claim for s 60 expenses in respect of the proposed C6/7 anterior discectomy and fusion proposed by Dr Suttor.
2. No order with respect to weekly compensation.”
For the reasons that follow the appeal is dismissed and the Certificate of Determination is confirmed.

MEMBER’S STATEMENT OF REASONS

The appellant, Mr Barry Hinde, a process operator employed by the respondent, Tarago Operations Pty Ltd, at the Woodlawn Mine, fell and suffered injury on 12November 2019.
The employer paid compensation to 9 December 2021 with respect to the right shoulder claim but disputed the entitlement to the cost of a C6/7 anterior discectomy and fusion proposed by Dr Suttor, orthopaedic surgeon.
The respondent employer did not dispute that:
(a) Mr Hinde suffered an injury to the right shoulder, or
(b) the proposed cervical spine surgery was reasonably necessary treatment for the underlying pathology.
The claim to be determined was whether, in addition to the injury to the right shoulder on 12 November 2019, Mr Hinde sustained injury to the neck.
The appellant’s case was that he suffered a frank injury on 12 November 2019 which aggravated an underlying disease process. The appellant did not allege that he suffered a consequential injury of the cervical spine as a result of the injury to the right shoulder.
The brief description of injury provided by the appellant in his statement dated 24 May 2022[1] (prepared for the purpose of the proceedings) was that on 12 November 2019 he was working when he tripped and fell forwards, landing heavily on his right side and injuring his neck and shoulder. He said that he felt immediate pain in the top of his right shoulder and it spread to the base of his neck. He reported the injury and received first aid before being taken to Goulburn Hospital.[2]
[1] Worker’s statement dated 24 May 2022, Application to Resolve a Dispute (ARD), pp 2–8.
[2] Worker’s statement, [18]–[20].
The Member noted that in his statement, Mr Hinde “said that he had no issues before the fall at work [and] had no symptoms in his neck before that injury.”[3]
[3] Hinde v Tarago Operations Pty Ltd [2022] NSWPIC 558 (reasons), [14].
The Member referred to the contemporaneous records. The patient report form dated 12 November 2019 referred to pain in the right shoulder caused by a fall at work. The discharge summary of Goulburn Base Hospital to which the appellant was conveyed after the accident referred to complaint of pain over the shoulder joint and inability to move it. The doctor recorded that there were no other injuries, no head strike and no back pain. The past medical history included chronic back pain after being run over by a car in 1982.[4]
[4] Reasons, [15]–[16].
In a structured and comprehensive statement of reasons, the Member set out and considered the “General Practitioner’s Notes” entries from Dr Dubey for the period from 23 April 2019 to 2August 2021.[5]
[5] Reasons, [17]–[32].
The Member summarised, under the heading “Specialist referrals”, the material from Associate Professor Arnold, Dr Ashton and Dr Suttor.[6] These were the treating specialists to whom the appellant was referred by his general practitioner.
[6] Reasons, [33]–[52].
The medicolegal reports comprise that of Dr Bosanquet (for the respondent), Dr Bodel (for the appellant) and a medicolegal report prepared by Dr Suttor, at the request of the appellant’s legal representative. The views of each of these doctors was set out in the Member’s reasons.[7] The Member thereafter summarised the submissions made by counsel for each of the parties.[8]
[7] Reasons, [54]–[64].
[8] Reasons, [65]–[87].
The dispositive findings commence at reasons [88].
The Member rejected the appellant’s submission that “there was no evidence of any other cause for the need for the proposed surgery besides the subject incident” on the basis that the submission misstated the onus. She said “It was necessary for Mr Hinde to prove on the balance of probabilities that he suffered a neck injury. Tarago did not carry an onus to prove that he did not.”[9]
[9] Reasons, [88].
At [89], the Member directed herself as to the standard of proof by reference to the decision of McDougall J (agreed to by the other members of the Court) in the Court of Appeal in Nguyen v Cosmopolitan Homes.[10]
[10] [2008] NSWCA 246 (Nguyen), [55].
Under the heading “Credit”, the Member observed in response to the appellant’s submission to the contrary that:
“It is not necessary that a witness be cross-examined before the Commission can make an adverse finding about his or her credit.”[11]
[11] Reasons, [90].
The Member supported her conclusion by citing passages from New South Wales Police Force v Winter[12] and Donovan v Secretary, Department of Education and Communities.[13]
[12] [2011] NSWCA 330 (Winter), [81]–[82], [84].
[13] [2015] NSWWCCPD 27.
The appellant’s reliance upon the decision in Bradley v Matloob[14] was rejected by the Member who said:
“Bradley does not stand for the proposition that Mr Adhikary sought to draw from it and turns on its own facts. The appeal was from a decision given after an oral hearing. A plaintiff suffered a brain injury in a motor accident when she swerved to avoid a collision with a car that turned across her path, causing her to collide with a stationary truck. An independent witness identified Mr Bradley’s vehicle as the vehicle at fault. The plaintiff sued Mr Bradley and the Nominal Defendant.
The trial was conducted on the basis that the driver of the at-fault vehicle could not have failed to notice the near-miss with the plaintiff’s car. The trial judge found that Mr Bradley was liable but that conclusion necessarily meant that Mr Bradley had lied to the police on the day of the accident and lied at the trial. However, that contention was not put to him in cross-examination nor were submissions made to that effect so that there was no scope for a finding against him. The only conclusion available on the evidence was that Mr Bradley was not the driver.”[15]
[14] [2015] NSWCA 239 (Bradley).
[15] Reasons, [94]–[95].
The Member contrasted this with Mr Hinde’s position:
“The fact that Mr Hinde was not cross-examined does not preclude an adverse credit finding. He was aware from the decision notices that Tarago did not accept that he had suffered an injury to his neck.
Mr Hinde’s statement was prepared in May 2022, after the decision notices were issued. No doubt he was assisted in its preparation. He disclosed only three ‘prior’ conditions – polymyalgia rheumatica, hip replacement in August 2021 and bowel injury he said that he had recovered from the effects of any previous injuries at the time of the injury which is the subject of these proceedings. Given the significant history disclosed in Dr Dubey’s notes, that was an inadequate description of past medical history. It also implied that polymyalgia rheumatica was in the past where is [sic, whereas] the treatment for that condition began after the injury and ceased when A/Prof Arnold determined that it was not an appropriate diagnosis.
The statement that he had recovered from any previous conditions is inconsistent with the medical evidence. It is a matter on which he is not qualified to give an opinion.”[16]
[16] Reasons, [96]–[98].
In addition, the Member said that the description of the injury itself was brief and the statement included Mr Hinde’s expressions of opinion as to the benefits he believed he would experience from the surgery if undertaken and an explanation of why Mr Hinde disagreed with Dr Bosanquet’s opinion that the fall at work did not aggravate the changes in his cervical spine, “because there were no other causes beside the workplace [fall] for the condition”.[17]
[17] Reasons, [99].
The Member concluded:
“Mr Hinde’s expression of opinion is unhelpful and contravenes rule 73 of the Personal Injury Commission Rules [2021] which provides that unqualified opinions are unacceptable. There are numerous inconsistencies between his evidence and the contemporaneous medical evidence and to be [sic, the] extent of the inconsistency, I do not accept his evidence on the issue of whether or not he suffered a neck injury.”[18]
[18] Reasons, [100].
Under the heading “Medical Evidence” the Member first referred to Murphy v Allity Management Services Pty Limited[19] and then said:
“A consideration of the medical evidence shows that Mr Hinde has not proved on the balance of probabilities that he suffered a neck injury in November 2019 which made a material contribution to the need for surgery.
There is no reference to an injury to Mr Hinde’s neck in the notes of Goulburn Base Hospital. The doctor recorded that there was pain around the shoulder joint and no other injuries. If Mr Hinde had said he suffered neck pain, it is likely that an X-ray of his neck would have been ordered with the shoulder X-ray.
Dr Bodel’s report and Dr Suttor’s report of 7 June 2022 were prepared after surgery was proposed and after liability for it was disputed. The assumption underlying both reports is that Mr Hinde suffered a neck injury on 12 November 2019. The letters of instructions were not provided. Where the dispute is about injury, the omission of those letters is relevant. It is not necessary that the history recorded by a medical expert correspond exactly to the facts for the opinion to be persuasive. However, the assumptions relied on by the expert must represent a fair climate for the opinion expressed.”[20]
[19] [2015] NSWWCCPD 49.
[20] Reasons, [103]–[105].
After referring to the Court of Appeal decision of Samuels JA (Hutley and Priestley JJA agreeing) decision in Paric v John Holland (Constructions) Pty Ltd,[21] the Member said:
“An examination of the medical evidence shows that Drs Bodel and Suttor were not afforded a fair climate in which to express their opinions. They both based their opinion on Mr Hinde’s statement that he had recovered from all previous conditions as the date [sic]. What Dr Bodel and Dr Suttor would have said if they were aware that there was a real dispute about the occurrence of the injury and aware that there was a history of, and treatment for, radicular complaints before it, is unknown.”[22]
[21] [1984] 2 NSWLR 505 (Paric), 510.
[22] Reasons, [107].
The Member also noted that Dr Suttor’s statement, that the need for treatment of the shoulder injury clouded the neck condition, was based on an assumption that Mr Hinde had suffered a neck injury, and that Mr Hinde had not complained of neck pain before the injury. The Member said: “His statement that the fall was sufficient to aggravate the underlying degenerative changes and initiate radiculopathy shows that he was not provided with the full history.”[23]
[23] Reasons, [108].
The Member did not accept that Dr Bodel, by referring to the local doctor’s notes, necessarily read and considered them. She drew that inference from the fact that Dr Bodel did not make reference to the impact of the radicular complaints before the injury and the delay in the onset of symptoms after the injury. She said that Dr Bodel’s report was unsatisfactory in that it expressed a number of inconsistent explanations for Mr Hinde’s condition. The Member said that, without explaining his reasoning, “Dr Bodel said that the fall clearly aggravated a disease process.”[24]
[24] Reasons, [110].
After quoting from South Western Sydney Area Health Service v Edmonds[25] the Member said:
“That statement is apposite in respect of Dr Bodel’s opinion that the injury was the aggravation of a disease. However, he expressed other opinions in the report which are not consistent with it. He said that there was a neck injury or ‘at the very least’ a consequential condition being an aggravation of a previously asymptomatic condition while recovering from the shoulder treatment. That is a different concept. While Mr Adhikary eschewed the characterisation of Mr Hinde’s neck condition as a consequential condition, the inclusion of that opinion in Dr Bodel’s report and the multiplicity of explanations means that his report provides no assistance in determining the claim.”[26]
[25] [2007] NSWCA 16 (Edmonds), [130]–[132].
[26] Reasons, [112].
The Member noted that neither Dr Ashton nor Associate Professor Arnold, who were treating Mr Hinde, made any detailed comments about causation. She observed significantly that Dr Suttor’s report of 28 January 2021 to the general practitioner, Dr Dubey, “did not mention a neck injury nor explain the reason why he recommended that Tarago’s insurer should pay for the surgery.”[27]
[27] Reasons, [113].
From the general practitioner’s notes, the Member extracted a number of entries she found relevant, namely:
(a)    in April 2019 there was a referral to the chiropractor, Mr Muir, noting a complaint of neck pain;
(b)    in May Mr Hinde sought referral to a neurosurgeon and Dr Dubey ordered a CT scan. In the referral Dr Dubey “noted a history of tingling and numbness in both arms, querying cervical radiculopathy”;[28]
(c)    the CT scan of 30 May 2019 showed the right C6/7 intervertebral foramen was narrowed and queried whether the nerve root was compressed;[29]
(d)    Mr Hinde was referred to Dr Ow-Yang, neurosurgeon, who saw him on 4 June 2019. The referral letter from Dr Dubey noted symptoms consistent with cervical radiculopathy.[30]
(e)    Dr Ow-Yang did not say that Mr Hinde did not have radicular symptoms. He said there was no significant nerve compression when considering the CT scan and advised against surgery.[31]
[28] Reasons, [114].
[29] Reasons, [115].
[30] Reasons, [116].
[31] Reasons, [117].
The Member considered it was significant that Dr Bodel and Dr Suttor did not make reference to the CT scan of 30May 2019, because the findings in the CT scan were “at the same level as those highlighted in the MRI scan dated 15 September 2020”.[32]
[32] Reasons, [115].
Importantly, the Member said:
“A/Prof Arnold saw Mr Hinde one week after the injury and recorded that he felt that he had lost strength in his hands. He recorded that Mr Hinde had a shoulder injury. Because of the complaints about Mr Hinde’s hands, it would be expected that A/Prof Arnold would record any history of a neck injury.”[33]
[33] Reasons, [118].
The Member stated that Dr Dubey’s notes “do not make specific mention of cervical radicular pain between the date of Dr Ow-Yang’s report and the injury, Mr Hinde was under active investigation and treatment as at the date of the injury. In those circumstances, it is disingenuous to suggest that Mr Hinde was not suffering neck and arm pain at the date of the injury.”[34]
[34] Reasons, [120].
The Member concluded that she was not satisfied on the balance of probabilities that Mr Hinde had suffered an injury to his neck on 12 November 2019.[35]
[35] Reasons, [121].

PROCEDURAL MATTERS

The parties are in agreement that:
(a) the appeal satisfies the monetary threshold stipulated by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(b) the appeal has been lodged within 28 days as required by s 352(4) of the 1998 Act.
The parties are also in agreement that the appeal can be disposed of on the papers. Having regard to s 52(3) of the Personal Injury Commission Act 2020 and to the Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, I am satisfied that I have sufficient information to proceed to determine the appeal “on the papers” without holding any conference or formal hearing and that this is an appropriate course in the circumstances of this matter.

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

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The principles are well known and are set out in Raulston v Toll Pty Limited.[36] The appellant has set out in his submissions extracts from that case and from Northern New South Wales Local Health Network v Heggie[37] as well as from the decision of Deputy President Wood in Jamal v Nonabel Concrete Pty Limited.[38]
[36] [2011] NSWWCCPD 25, [19].
[37] [2013] NSWCA 255, [72].
[38] [2018] NSWWCCPD 42, [120].
Oversimplifying, the jurisdiction is engaged where error of fact, law or discretion is demonstrated permitting intervention to correct any such error of fact, law or discretion. It is important to emphasise, however, that the jurisdiction is not one of review.

GROUNDS OF APPEAL

The appellant relies upon the following grounds of appeal:
(a)    Ground 1 – The Member committed errors of law by determining the appellant did not need to be cross-examined and impugned his credit.
(b)    Ground 2 – The Member committed errors of fact and law by determining the appellant was “under active investigation and treatment” to the cervical spine as at the date of the injury.
(c)    Ground 3 – The Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine on the balance of probabilities and on the basis of the whole of the evidence.
(d)    Ground 4 – The Member committed errors of fact and/or law by effectively placing no weight upon the medical evidence which the appellant relied upon.
(e)    Ground 5 – The Member committed errors of law by failing to respond to substantial, clearly articulated arguments.
(f)    Ground 6 – The Member committed errors of law by making findings and determinations which the appellant was not on notice of.
(g)    Ground 7 – The Member’s decision with respect to the interpretation of Dr Dubey’s records was a decision so unreasonable that no reasonable body could have [reached] it.
(h)    Ground 8 – The Member committed errors of law by failing to acknowledge [an] injury can have multiple causes.
(i)    Ground 9 – The Member committed errors of fact and law by indicating she did not accept his evidence on the issue of whether or not he suffered a neck injury.

GROUND ONE: THE MEMBER COMMITTED ERRORS OF LAW BY DETERMINING THE APPELLANT DID NOT NEED TO BE CROSS-EXAMINED AND IMPUGNED HIS CREDIT

Appellant’s submissions

The appellant submits that the Member made adverse findings about the appellant’s credit. He refers to paragraphs [90]–[100], [107]–[108] and [120] in this regard.

The appellant acknowledges the Member placed reliance on inconsistencies between the appellant’s evidence and the contemporaneous evidence as a reason she did not accept the appellant’s evidence, but submits the treatment of the appellant’s evidence “went beyond the issue [of] inconsistency” and meant that the Member did not consider the appellant’s evidence to be credible in light of the treating medical evidence.
The appellant also notes the heading “Credit” suggesting that the Member impugned the appellant’s credit.
The appellant submits:
“The Appellant had submitted at the Arbitration hearing that if his credibility was to be impugned, he ought to have been cross-examined. In absence of being cross-examined, his credit could not be impugned as the Respondent had sought to do.
The Respondent had placed in issue that the Appellant’s evidence was, amongst other matters, misleading ([74] of Reasons).”[39]
[39] Appellant’s submissions, [27]–[28].
The appellant’s submission at trial was that Mr Hinde could not have been mistaken as to whether he “experienced issues with his neck” at the time of his injury. He “either suffered from symptoms/issues to his cervical spine at the time of the injury or he did not”, citing Bradley.
The appellant submits:
“… the Member has erred in law by determining, in the circumstances of this matter, that the Appellant did not need to be cross-examined in order to impugn his credit.”[40]
[40] Reasons, [37].
The appellant quotes from the decision in Finney Pty Limited t/as Cut Price Car Rentals v Chequer[41] as meaning that procedural fairness required the appellant be cross-examined and allegations (presumably relating to the past medical history) put squarely to him.
[41] [2021] NSWPICPD 13 (Chequer).
The appellant submits the dispute notices were not adequate to obviate the need for cross-examination because they failed to make any reference to the appellant’s credibility and failed to indicate that the appellant’s evidence was not accepted and/or that the respondent took issue with same on the basis it was not credible.
This point is further developed by reference to a passage from Chequer at [58], where the judgment of Campbell JA in Winter was considered.
The appellant submits that the Member’s dismissal of the applicability of Bradley was in error and relies upon Beech-Jones JA at [75] and [79]–[82] in that judgment.

Respondent’s submissions

The respondent submits that the insurer’s dispute notices put the appellant on notice of its concern regarding the delay between the date of injury and the symptoms first recorded. It submits the appellant had an opportunity to respond to this challenge in his evidentiary statement of 24May 2022, but no response was provided by the appellant.
Moreover, the respondent submits:
“… his statement did not give an account of his cervical symptoms and investigations prior to 12 November 2019, particulars of which were recorded in the clinical records. An examination of that material indicated that there had been complaint and investigation of potential radiculopathy as recently as 8 July 2019 (ARD 258). This was significant, as the complaint that had led him to Dr Suttor and the proposal for cervical surgery was the diagnosis of radiculopathy rather than acute neck symptoms.”[42] (emphasis in original)
[42] Respondent’s submissions, [13].
The respondent also submits:
“This was not a case where the respondent was advancing contradictory evidence (apart perhaps from the opinions of Dr Bosanquet qualified on its behalf). It was asserting that the appellant’s own evidence did not support his claim.
It was in this context that the appellant submitted at first instance that his ex post facto account of an alleged November 2019 neck injury given in May 2022 (ARD 2), should be accepted notwithstanding shortcomings in the completeness or accuracy of his account and in the absence of any contemporaneous complaint. He submitted that in the absence of cross examination, his bare account could not, as a matter of law or fact, be rejected.
He submitted that the absence of clinical record of complaint of neck symptoms or radiculopathy between June 2019 and 12 November 2019 carried with it the inference that the appellant was asymptomatic during that period. However, if that were so, what was to be made of absence of complaint of neck or radicular symptoms between date of injury and Dr Ashton’s referral to Dr Suttor on 16 October 2020?
This appeal contains a re-presentation of that submission. The inference is that because the Member did not accept the appellant’s argument, she erred in fact or law, or both in 9 distinct respects.
The appellant faced a forensic challenge at first instance and was unsuccessful. He abandoned an allegation of consequential condition and presented a case of frank injury and sudden onset of neck symptoms the respondent submits is inconsistent with the recorded medical records. He now seeks to overturn the Member’s decision by suggesting that he was not afforded the procedural fairness of being cross examined. The respondent submits that such argument is not supported by legal principle. The respondent submits that the appeal should be dismissed and the Member’s orders confirmed.”[43]
[43] Respondent’s submissions, [14]–[18].
Specifically dealing with Ground One of the appeal, the respondent quotes the rule in Browne v Dunn[44] as recorded in Allied Pastoral Holdings Pty Limited v FCT[45] and submits:
“The procedural rules of the [Personal Injury Commission] (as opposed to common law court procedures) resulted in the appellant being on due notice of all of the evidence to be relied on, before the commencement of the hearing. It is for this reason that the need for cross examination in the [Commission] is generally the exception rather than the rule.”[46]
[44] (1893) 6 R 67.
[45] (1983) NSWLR 1, 16.
[46] Respondent’s submissions, [24].
The respondent submits that in its review decision of 17 March 2022,[47] the respondent put the appellant on notice that the available evidence did not support a finding of neck injury on 12 November 2019. It was pointed out that the first record of neck complaint after that date was not until late 2020. The respondents submits: “The appellant was on notice of the respondent’s case and the evidentiary basis for it, prior to the commencement of the proceedings.”[48]
[47] Application to Resolve a Dispute (ARD), p 19.
[48] Respondent’s submissions, [25].
The respondent also submits:
“In these circumstances, the Member’s reasons at [90]–[96] and her references to authority disclose no error of law. She had considered and applied the relevant authorities. In the particular circumstances of this claim in this forum, the usual rule of professional practice did not apply, as the appellant had already been afforded procedural fairness.”[49]
[49] Respondent’s submissions, [26].

Consideration

The Member pointed out that it was necessary for Mr Hinde to persuade her on the balance of probabilities that he had suffered a neck injury on 12 November 2019. She quoted from Nguyen that a “finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist.” [50] (emphasis added)
[50] Reasons, [88]–[89], citing Nguyen, [55].
The Member plainly was not persuaded by the totality of the evidence, including Mr Hinde’s statement, that the onus of proving that he suffered a neck injury when he fell on 12 November 2019 had been satisfied.[51]
[51] Reasons [100], [121].
There is a difference between a conclusion that the tribunal was not persuaded by the evidence and a finding that a witness’s evidence is dishonest or is otherwise impugned.
The Member addressed the requirement for procedural fairness. She identified leading cases and directed herself accordingly. The Commission is required to afford procedural fairness by giving the parties notice of the case to be put against them, and a reasonable opportunity to put evidence and submissions before the tribunal on that case, but it does not follow that in circumstances where cross-examination has not occurred either that evidence is uncontested or that there has been a denial of procedural fairness.[52]
[52] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34, [20]–[25].
The Member’s conclusion adverse to the appellant was based on the following:
(a)    There was inconsistency between Mr Hinde’s statement evidence and the contemporaneous medical evidence.[53]
(b)    There is no reference in the medical material contemporaneous with the events of 12 November 2019 of injury to the neck.[54]
(c)    The appellant’s primary medical reports by Drs Bodel and Suttor were prepared on the assumption that Mr Hinde had suffered a neck injury on 12 November 2019, an assumption which the Member was not prepared to accept.
(d)    Furthermore, the letters of instructions on which those reports were premised were not introduced into evidence which meant the Commission was not able to consider the assumptions the doctors were asked to make for the purpose of their reports.[55]
(e)    There was evidence of prior medical consultations referable to neck symptoms. Both Drs Bodel and Suttor based their opinion on Mr Hinde’s statement that he had recovered from all previous conditions and there was no evidence as to what they would have said “if they were aware that there was a real dispute about the occurrence of the injury and aware that there was a history of, and treatment for, radicular complaints before” their consultations.[56]
(f)    Dr Suttor’s report was based on the (incorrect) assumption that before the 12 November 2019 events Mr Hinde did not complain of neck pain.[57]
[53] Reasons, [100].
[54] Reasons, [104].
[55] Reasons, [105].
[56] Reasons, [107].
[57] Reasons, [108].
I do not accept that the appellant was denied procedural fairness in the running of the trial or because there was no cross examination. The Member made clear to the appellant her concerns as to the history of pre-existing complaint with respect to the neck.
The following is recorded in the transcript:
“MEMBER: … I have to say I am really troubled by the evidence and by the submission that because there was no complaint in the period between June and November that there must be an injury. I need to make findings that have a proper basis and I’m just concerned that the medical evidence causes some difficulties with that and that I have to take too many liberties with the medical evidence to make that conclusion but I said what I think so I’ll let you go on but I really do have some concerns.
MR ADHIKARY: Yes, thank you, Member. Well, the GP’s records demonstrate no complaints for a few months, Member. They’re quite clear.
…
MEMBER: I have no difficulty with that as a proposition, the difficulty I have is whether the medical evidence and whether the doctors have seen – the medical evidence exists and whether the doctors have seen the previous complaints. That’s what I am concerned about. … I understand from what Mr Stockley says earlier that there’s no issue that this surgery is reasonably necessary, the question is whether it’s reasonably necessary as a result of an injury and I don’t think Dr Suttor has dealt with that because he was dealing with whether or not surgery is required.”[58]
[58] T 13.17–14.22.
The issue of cross-examination is referred to by counsel for the appellant at page 35 of the transcript. That is in the context of a discussion about Bradley. The submission is that Mr Hinde had not been cross-examined to the effect that he had lied or was a dishonest witness, but with respect, they are not the only possibilities.
Unlike Bradley, there were any number of possibilities to explain why Mr Hinde’s evidence concerning the injury to the neck of 12 November 2019 was not accepted. The obvious possibility was that he simply mis-recalled what parts of his body were injured on the occasion of the fall on 12 November 2019.
The decision in Chequer cited by the appellant was in a different category to the present matter. In that matter the then Arbitrator made adverse findings including a finding that the witness gave dishonest evidence[59] in circumstances where fairness required that the witness be confronted with the allegations of dishonesty.
[59] See Chequer, [31]–[34].
In this matter in contrast, the Member was not persuaded by Mr Hinde’s statement in the face of the other matters to which she referred. It does not follow that she found Mr Hinde to be untruthful or dishonest. For the reasons she gave, Mr Hinde’s statement evidence was not enough to overcome the inferences available from the other evidence.
The appellant’s submission that the Member should not accept the respondent’s submission in the absence of cross examination was made late in circumstances where the issue of injury to the neck was “live”, and indeed the only issue from the outset.
The Member expressly concluded that cross examination was not required. That conclusion was open to the Member.
Ground One of the appeal is dismissed.

GROUND TWO: The Member committed errors of fact and law by determining the appellant was “under active investigation and treatment” to the cervical spine as at the date of the injury

Appellant’s submissions

The appellant submits that the Member determined that the appellant was experiencing cervical spine issues at the time of injury. He refers to paragraphs [97]–[98] and [114]–[120] of the reasons.
The appellant refers to the report of Dr Ow-Yang dated 27 June 2019 and says:
“Reading the report as a whole, it is clear that the Neurosurgeon did not opine the Appellant needed surgical intervention and the focus of the consultation was not upon [the] cervical spine.”[60]
[60] Appellant’s submissions, [67].
The appellant surveys the various medical entries, making the submission:
“Indeed, the last mention of cervical spine issues in the GP’s clinical records is on 4 June 2019, the date on which the referral to Dr Ow-Yang was made.
Notwithstanding same, the Member at [119] relied upon Nominal Defendant v Clancy [2007] NSWCA 349 and did so in order to determine, and excuse, the complete lack of references to cervical spine issues in this period by indicating this did not mean that there were no issues with the Appellant’s cervical spine and he would have complained to the GP about these issues in the intervening period from the last mention to the injury notwithstanding there being no record of same in the GP’s records.”[61] (emphasis in original)
[61] Appellant’s submissions, [82]–[83].
The appellant then quotes the Member at reasons [120]:
“While Dr Dubey’s notes do not make specific mention of cervical radicular pain between the date of Dr Ow-Yang’s report and the injury, Mr Hinde was under active investigation and treatment as at the date of the injury. In those circumstances, it is disingenuous to suggest that Mr Hinde was not suffering neck and arm pain at the date of the injury.”
The appellant submits that the Member made findings which were not supported by the evidence, ignored material facts, made critical findings of fact which had no basis on the evidence and showed a demonstrable misunderstanding of the relevant evidence.[62]
[62] Appellant’s submissions, [84]–[85].
In support of those propositions the appellant says:
(a)    there was no evidence before the Member to suggest the appellant was undergoing active investigation and treatment as at the date of injury;
(b)    there was no evidentiary basis upon which the Member could assume and determine the appellant had complained of cervical spine issues to Dr Dubey where the clinical records did not make mention of cervical spine issues themselves;
(c)    the Member’s determination ignored material facts because she ignored the evidence which was clear to the effect that the appellant was not undergoing treatment to his cervical spine at the date of injury;
(d)    contrary to what the Member indicated at [120] of the reasons, the GP’s notes did not specifically refer to cervical radicular pain from the date of Dr Ow-Yang’s report but rather, the records did not make any mention of cervical spine at all, and
(e)    the findings ought not to have been made given the appellant’s evidence that he did not have cervical spine issues as at the time of the injury was not challenged by way of cross-examination.[63]
[63] Appellant’s submissions, [86]–[94].

Respondent’s submissions

The respondent submits:
“The point of the Member’s observation regarding pre injury symptoms, is not so much that their presence or otherwise could be definitive of the issue of injury. They were significant because of the appellant’s failure to acknowledge them, in a case where he was arguing that his post injury symptoms were supportive of (a) a finding of neck injury (consisting of an aggravation etc of disease) and (b) material contribution to the need for surgery. It is impossible to make anything of post injury symptoms, absent a bench mark of pre injury symptoms. The question went both to the reliability of his evidence and to the quality of the assumptions made by the specialist doctors that supported his claim.”[64]
[64] Respondent’s submissions, [28].
The respondent submits there was a history of neck symptoms or potential radicular symptoms for which treatment and investigation had been initiated in 2019. The respondent refers to entries of 1 May 2019, 30May 2019, 4 June 2019, 15June 2019 and 8July 2019.[65]
[65] Respondent’s submissions, [29].
The respondent also submits that the appellant’s submission at paragraph [89] “that there was no evidentiary basis for the Member to conclude that he had complained of neck symptoms to Dr Dubey” is not correct. The respondent says that Dr Dubey referred Mr Hinde to Mr Gillham, a physiotherapist, on 8 July 2019 with a history of “MVA 1982, constant pain requiring medication, both arms go numb, now pain lower back/neck, both hips”[66] (respondent’s emphasis).
[66] Respondent’s submissions, [30].
The respondent makes the point that there was no cross-examination to challenge the appellant’s evidence of “no cervical spine issues” because there was “nothing to challenge”. The respondent says the appellant’s statement was silent on the topic, submitting: “he neither acknowledged his pre injury cervical complaints and investigations, and nor did he assert he was symptom free.”[67]
[67] Respondent’s submissions, [31].
The respondent also submits:
“… the Member’s observation at [120] was warranted and relevant. A nuanced gradation taking investigation back to June or July 2019 does not diminish the relevance of the history. If that were a technical inaccuracy, it is not one which is capable of altering the outcome of the decision.
As submitted above, the significance of the pre injury investigations and attendances is that they disclosed symptoms very similar in nature to those identified by Dr Ashton at the time he referred the patient to Dr Suttor.
In any event the appellant gave no evidence about his pre injury medical investigations of neck and radicular symptoms. The appellant could have, but did not, given the [Commission] his own account and said whether and to what extent he accepted the correctness of the clinical records.”[68]
[68] Respondent’s submissions, [33]–[35].

Consideration

In my view, the Member was justified in drawing the inference she did with respect to the pre-12 November 2019 cervical symptomatology.
The respondent is correct in that the appellant gave no evidence about his pre-12November 2019 neck symptoms. So far as the appellant’s statement evidence is concerned, he did not refer to any complaint or investigations with respect to the cervical spine before 12November 2019.
The appellant submits the reference to the physiotherapist, Mr Gillham, did not pertain to the appellant’s neck.
The appellant refers to the referral to Mr Gillham at page 258 of the ARD which provides:
“Thank you for seeing Barry Hinde for an opinion and management for Lowr [sic, lower] back pain. Please see attached CT report below.”

However, the clinical history recorded in the referral is “MVA 1982, constant pain, requiring medication, both arms go numb, now pain lower back/neck, both hips.” The CT scan extended to the cervical spine.
There were multiple investigations and, at least as at the date of referral to Mr Gillham in July 2019, the appellant was under active investigation and treatment for neck symptoms.
The Member’s concern with the complaint history prior to 12 November 2019 provided by the appellant is explained in paragraph [97] of the reasons, which should be read with the conclusion at paragraph [120]. The Member says, in reference to the complaint history provided in the appellant’s statement, “given the significant history disclosed in Dr Dubey’s notes, that was an inadequate description of [the] past medical history”.[69]
[69] Reasons, [97].
I am not persuaded that the substance of the inference drawn by the Member at reasons [120] was not available.
Ground Two of the appeal is dismissed.

GROUND THREE: The Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine on the balance of probabilities and on the basis of the whole of the evidence

Appellant’s submissions

The appellant refers to the Member’s reasons at [100], [104], [113] and [118]. The appellant submits that, although the Member referred to Nguyen, she did not determine the matter on that basis. The appellant submits that the Member placed undue emphasis on the lack of contemporaneous evidence in respect of the cervical spine injury.
The appellant quotes from Deputy President Wood’s decision in Arquero v Shannons Anti Corrosion Engineers Pty Limited[70] and submits:
“The Appellant, consistent with Wood DP’s remarks, submits that the focus upon contemporaneous evidence was not apt in the circumstances of this matter given the Appellant’s case and the evidence relied upon.”[71]
[70] [2019] NSWWCCPD 3.
[71] Appellant’s submissions, [104].
In addition, the appellant submits that the effect of the Member’s decision and emphasis upon contemporaneousness was that she required the appellant to have corroboration before he could succeed. It is pointed out that corroboration is not a requirement of civil proceedings. Rather, the appellant says the Member ought to have determined the issues before her on the basis of the whole of the evidence.

Respondent’s submissions

The respondent submits that the appellant bore the onus of proof on the question of injury and the material contribution to the need for surgery. The appellant does not indicate what impermissible erroneous standard of proof was imposed by the Member. To this extent, the respondent submits this ground is unargued and should be dismissed.
The respondent says the reference in the submissions to the “whole of the evidence” suggests a complaint that some relevant or important evidence may have been overlooked, ignored or dismissed. However, the appellant does not identify such error. The respondent submits this ground is stated but not argued in any way that invites a response. It submits this ground should be dismissed.

Consideration

The errors purportedly identified by the terms of this ground of appeal are more aptly addressed in the determination of Ground One of the appeal above.
The appellant’s challenge that the Member in effect required the appellant to provide corroboration is without merit. The appellant sought to prove that he had recovered from the previous cervical complaints on the basis that Dr Dubey’s notes made no mention of the cervical radicular pain between the date of Dr Ow-Yang’s report and the injury.
The Member found the appellant to be under active treatment and investigation at the date of injury.[72] That finding was based on the Member’s assessment of all of the evidence which she had referred to in the previous paragraphs. It did not depend on a conclusion as to contemporaneity. To the extent the finding was made, even though there were no mention of cervical radicular pain in Dr Dubey’s notes between the date of Dr Ow-Yang’s report and the date of injury to the right shoulder on 12 November 2019, the contemporaneity issue works in favour of the appellant.
[72] Reasons, [120].
The Member did not fail to apply the standard of proof she directed herself to by the reference to the decision in Nguyen.
The issue of whether a contemporaneous complaint of neck injury or even neck pain was made at or about 12 November 2019 was against the appellant. He did not make any complaint of neck injury at or about the time of its alleged occurrence.
The Member did not require corroboration. She simply said:
“There is no reference to an injury to Mr Hinde’s neck in the notes of Goulburn Base Hospital. The doctor recorded that there was pain around the shoulder joint and no other injuries. If Mr Hinde had said he suffered neck pain, it is likely that an X-ray of his neck would have been ordered with the shoulder X-ray.”[73]
[73] Reasons, [104].
The Member had previously recorded at reasons [15]–[16] that the patient report form at the mine recorded that Mr Hinde suffered pain in the right shoulder caused by a fall at work.
So far as Goulburn Hospital was concerned, the Member recorded that the doctor there had noted “no other injuries, no ‘head strike’ and no back pain.”
Ground Three of the appeal is dismissed.

GROUND FOUR: The Member committed errors of fact and/or law by effectively placing no weight upon the medical evidence which the appellant relied upon

Appellant’s submissions

The appellant relied upon the reports of Drs Bodel and Suttor. At reasons [111] the Member referred to a passage from Edmonds at [130] to [132] in support of her conclusions concerning the reports of Drs Suttor and Bodel.
With respect to the letters of instructions the appellant submits that the Member’s emphasis on these documents was erroneous. The appellant submits that the Member did not express any reasons as to why such documents were needed or why the failure to lodge same was “fatal to the claim”. The appellant refers to Wingfoot Australia Partners Pty Limited v Kocak[74] and says that the Member’s reasons fell short of the requisite standard because they did not explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.
[74] [2013] HCA 43, [55].
The appellant says that the Member’s reasons with respect to the letters of instructions falls short of the requirement of r 78 of the Personal Injury Commission Rules 2021 (the Rules) as it is not evident what the reasoning process that led to the decision being made was, nor is it apparent what law the Member relied upon in making this finding.
The Member’s conclusion with respect to the opinion of the doctors was erroneous because the conclusion presupposed the appellant had ongoing issues at the cervical spine at the time of the injury. The appellant submits there is no evidence to suggest that the appellant had ongoing issues in the cervical spine, or that the opinions of Drs Bodel and Suttor were not provided under a fair climate in circumstances where their expressed opinions adequately corresponded to the admitted facts.
Furthermore, the Member’s remarks were erroneous in fact because they were not consistent with the evidence. The appellant submits that when the report of Dr Bodel is read as a whole, he was aware that there was a dispute pertaining to the injury. The doctor specifically considered the opinion of Dr Bosanquet upon which the dispute in relation to injury is dependent and was also asked to provide his comments as to the injury. The same is clear from Dr Suttor’s report dated 7 June 2022, at points 4, 8 and 9.
The Member’s conclusions at [108] are predicated upon her determination that the appellant suffered from cervical spine issues, including radiculopathy. The Member’s remarks speculate about the history with which Dr Suttor was provided and the speculation is not consistent with the evidence.
The appellant quotes Dr Suttor’s report of 7 June 2022 at point 8 and also refers to points 6 and 7. The appellant asserts that the Member’s determination was inconsistent with the appellant’s case that he sustained an injury pursuant to s 4(a) of the Workers Compensation Act 1987 (1987 Act).
The appellant submits that the Member’s findings are erroneous in fact because she:
(a)    ignored material facts;
(b)    made a critical finding of fact which had no basis on the evidence;
(c)    showed demonstrable misunderstanding of relevant evidence, and
(d)    demonstrably failed to consider relevant evidence.

Dr Bodel’s consideration of the GP’s records

The appellant submits that the Member’s findings at [109] are erroneous.
The appellant submits:
“… it was not open for the Member to indicate that this did not ‘necessarily’ mean that the doctor had read and considered the documents.
There was no indication in the evidence, indeed the Member did not refer to any such evidence, that would suggest this was so.
Accordingly, it is submitted that the Member committed errors of fact by reaching this finding because they were contrary to the admitted facts in the matter.”[75]
[75] Appellant’s submissions, [137]–[139].

Dr Bodel’s reasoning process

The appellant submits that it is necessary to consider Dr Bodel’s opinion as a whole and that the Member failed to do so.
The appellant relies on Dr Bodel’s report as to the following:
(a) the appellant commenced experiencing symptoms in the cervical spine following the incident and the previously asymptomatic degenerative condition was rendered symptomatic, and
(b) the commentary on Dr Bosanquet’s opinion, that the complaint to the neck is due to degenerative change only, is disputed by Dr Bodel.
The appellant submits that Dr Bodel’s conclusions are apparent and it is not the case that Dr Bodel has not provided reasoning for the conclusions he reached.
The appellant submits the doctor’s report was not a bare ipse dixit, but an opinion of a kind which does contain an explanation for the opinion reached. He makes reference to Spigelman CJ’s comments in Australian Securities and Investments Commission v Rich[76] that the expert’s “prime duty” is fully satisfied if the expert identifies the facts and reasoning process which he asserts justify the opinion.
[76] [2005] NSWCA 152, [105].

Dr Bodel’s opinion regarding the consequential condition

The appellant refers to the Member’s reasons at [112]. He says that those findings and conclusions are erroneous in law and that:
“They do not account for the fact that an injury can have multiple causes and that the Appellant only needed to demonstrate that the incident on 12November 2019 caused or materially contributed to the injury.”[77]
[77] Appellant’s submissions, [151], citations omitted.
The appellant submits:
“As noted above and as the Member had acknowledged herself, Dr Bodel did opine the Appellant had sustained an injury which is an injury pursuant to section 4(a) of the 1987 Act and the reasons for same are also outlined in his report.
Accordingly, Dr Bodel’s comments pertaining to a consequential condition, whilst being a different concept to a finding as to injury pursuant to section 4(a) of the 1987 Act, ought to have not led the Member to consider the doctor as having provided ‘multiplicity of explanations’ that meant his ‘report provides no assistance in determining the claim’.
This is because an opinion pertaining to injury had been provided i.e. Dr Bodel had clearly indicated the subject incident caused or materially contributed to the injury and, therefore, the fact that the doctor also opined there may have been other causes for same did not matter.”[78]
[78] Appellant’s submissions, [153]–[155].

Respondent’s submissions

The respondent submits the forensic defect in the appellant’s medicolegal case was that Dr Bodel had apparently been asked to assume a neck injury when that matter was in dispute, and where he and Dr Suttor had either not been provided with the full history or had not acknowledged it.
So far as the letter of instructions was concerned, the respondent submits that the absence of the letter was the subject of the respondent’s submissions before the Member. The significance of its absence is in interpreting the opinion of Dr Bodel and ascribing it appropriate weight. The respondent submits that the Member’s reference to this feature of the evidence cannot come as a surprise and a consideration of it cannot constitute an error of law (if indeed that is what is argued).

Opinion is not expressed under fair climate

The respondent submits that the general practitioner received no contemporaneous report of neck injury despite the appellant’s attendance on 15 November 2019. Dr Bodel made no reference to the fact that the appellant attended the GP again on 18 November 2019 and 3 December 2019 without reporting any neck symptoms. On the latter occasion the GP noted the right shoulder injury had recovered well and that Mr Hinde was happy to go back to pre-injury duties. There was still no reference to a neck injury or symptoms. The respondent submits it is highly improbable that Dr Bodel could have read this material and not commented upon it.
The respondent says the appellant’s submission at paragraph [144] exemplifies the problem, being that the appellant himself does not give any evidence of a previously asymptomatic degenerative condition. In any event, as the appellant’s counsel submitted, he was consulting Dr Ow-Yang regarding his neck injury in June 2019. The respondent submits for these reasons the only inference is that Dr Bodel did not have a complete history and therefore there was not a fair climate for his opinion.

Dr Bodel’s consideration of the GP’s records

The respondent submits that the Member’s primary finding was that Dr Bodel did not provide his opinion in a fair climate. The respondent says the possibilities are threefold. First, that Dr Bodel was not provided with the material. Second, that it was provided and he overlooked it. Third, that he was provided with it, considered it, and decided not to refer to it in his opinion.
The respondent submits that in the absence of the letter of instructions it is not clear what material Dr Bodel had available to him. However, it matters not why he failed to take it into account. If he did not consider it, he was deprived of relevant important evidence. In this context the Member’s reasons and observations on the topic appear to consider the first two possibilities and thus conclude an absence of a fair climate for Dr Bodel’s opinion.
The respondent says that if the appellant is submitting that Dr Bodel did see and consider the material but unaccountably failed to refer to it or to explain its relevance to the question of injury and causation, that was a submission not made at the hearing before the Member and should not now be considered.

Dr Bodel’s reasoning process

The respondent submits that the Member was not required to go into excessive detail as to the superficial approach adopted by Dr Bodel. It says, deprived of the complete history, Dr Bodel described the mechanics of the accident as a heavy fall onto the right side injuring his neck and right shoulder. He recorded the main complaint was the top of the right shoulder but that it spread up to the base of the right side of the neck. The respondent submits that description gives no insight into the nature of the neck injury. On one view it does not even describe a neck injury at all as opposed to symptoms radiating from the shoulder.
The respondent says the doctor’s post-injury history of medical attendance makes no reference to any complaints of neck pain, any investigation of the neck or any treatment directed to it. Increasing neck pain is recorded after the appellant tried to return to work. Dr Bodel does not indicate how soon after 19 November [2019] this development occurred. For that matter, neither does the appellant’s evidentiary statement.
The respondent submits that Dr Bodel’s fallback position (at the very least) of a neck condition consequential to the (accepted) shoulder injury is of no assistance to the appellant who formally disavowed reliance on a secondary condition. In the meantime, as the Member observed, the fallback position diminished the weight of the opinion on injury. The Member’s task was not to consider the legal consequences of a finding of multiple injuries. The respondent says that “she was assessing the weight of the expressed opinion of the medicolegal mainstay of the appellant’s case by reference to the Court of Appeal’s pronouncement in South Western Sydney Area Health v Edmonds.”[79]
[79] Respondent’s submissions, [50].

Consideration

The submissions in support of this ground of the appeal are expressed by reference to a number of component parts. In effect there are multiple alleged errors emanating from the Member’s treatment of Dr Bodel’s report under a single ground of appeal. This is unsatisfactory and contrary to the Rules relating to specificity with respect to the grounds of appeal.[80]
[80] See r 123(b)(i) of the Rules; Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes, [15], [16(a)–(b)].
Contrary to the appellant’s submission, the Member gave cogent reasons for the significance she attached to the absence of the letter of instructions to Drs Bodel and Suttor.
The absence of the letter of instructions where there is dispute as to injury was relevant for the purpose of assessing the history the doctor was asked to assume, both as to the circumstances of the occurrence of injury and as to treatment. The passage at [105] of the reasons followed by the reference to Paric makes it clear that the Member was concerned with the assumed history provided to the doctor in the letter of instructions.
This is made clear by the passage at reasons [107]:
“An examination of the medical evidence shows that Drs Bodel and Suttor were not afforded a fair climate in which to express their opinions. They both based their opinion on Mr Hinde’s statement that he had recovered from all previous conditions as [at] the date. What Dr Bodel and Dr Suttor would have said if they were aware that there was a real dispute about the occurrence of the injury and aware that there was a history of, and treatment for, radicular complaints before it, is unknown.”
Thus, the Member regarded the absence of the letter of instructions as important for what insight it might show on the premise of the medical reports with respect to the fact of injury and with respect to the treatment for radicular complaints. I detect no error on the part of the Member.
The general practitioner’s notes were provided to Dr Bodel but what he made of them is not apparent from the report. He simply says:
“The local doctor’s [consultation] notes and also the hospital notes from the Dudley Private Hospital relate to the surgery for the shoulder.”[81]
[81] ARD, p 29.
The Member says at reasons [109] that Dr Bodel does not seem to have detected or commented upon the impact of radicular complaints before the injury and the delay in the onset of those symptoms after the injury. That is the fact. The Member regarded the absence of commentary as weakening the utility of Dr Bodel’s report. That in my view is an inference reasonably available to the Member. It is to be appreciated that such matters contribute to the overall impression of the evidence.
The fact that Dr Bodel chose to express multiple opinions in the report leaves the report ambiguous to say the least. The focus of attention was whether the report could be relied upon as providing probative evidence of an injury to the neck on 12 November 2019. If there are multiple explanations for the doctor’s findings, a frank injury on 12 November 2019 is merely one of a range of possibilities.
The Member was concerned with the ambiguity in Dr Bodel’s opinion. That is what she says at reasons [112], set out above at [28].

The point being made by the Member is that Dr Bodel’s report is equivocal. It says the appellant’s description of what occurred is “consistent with a concurrent injury to the neck” (and right shoulder) or “[a]t the very least the neck component is a consequential injury by way of aggravation ...”[82] The latter proposition was inconsistent with the appellant’s case.
[82] ARD, p 29.
Dr Bodel’s report contains an equivocation making it ambiguous, and that is its weakness. The first hypothesis supports the appellant’s case theory. The alternative does not. The neck component as an injury consequential on the injury to the right shoulder is contrary to the appellant’s case. It is for this reason that the Member says the report “provides no assistance in determining the claim.”
Ground Four of the appeal is dismissed.

GROUND FIVE: The Member committed errors of law by failing to respond to substantial clearly articulated arguments

Appellant’s submissions

The appellant submits that the Member failed to deal with the following substantive arguments:
(a) the appellant’s case which was that the injury sustained consisted of an aggravation to the underlying disease of the cervical spine, and
(b) the Member did not have regard to the submission as to why the contemporaneous evidence did not disclose complaints in respect of the appellant’s cervical spine. (The appellant relies upon the submissions made in respect of Ground Three in support of this.)
The ultimate submission under this ground is that the difference would have been that the Member would not have considered the contemporaneous evidence as being of paramount importance.

Respondent’s submissions

The respondent submits that in the absence of identification of a substantial, clearly articulated argument, the respondent cannot respond to this ground. It submits this ground of appeal should be dismissed.

Consideration

A constructive failure to exercise jurisdiction is not a mere failure to address an argument or submission but a failure to understand and determine the case: Day v SAS Trustee Corporation.[83]
[83] [2021] NSWCA 71, [37].
The Member identified the appellant’s case at reasons [6] where she referred to the appellant’s counsel’s submission based on Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited[84] at paragraph [65] of the reasons. Whatever form the appellant’s injury may have taken, the relevant inquiry was whether the appellant sustained injury to the neck on 12 November 2019.
[84] [2014] NSWCA 264.
The issue was whether or not the symptoms complained of by the appellant were the result of the injury on 12 November 2019. The Member addressed the evidence and disposed of the case.[85]
[85] Reasons, [103].
The appellant had symptoms in the neck before 12 November 2019. The Member was aware the appellant had submitted that the reason the medical notes did not make reference to the injury to the neck was because of his concern with the injury to the right shoulder. The Member’s reasons address that very point and reach a conclusion adverse to the appellant.
It is simply not correct that, as the appellant submits, the Member failed to address the arguments that the injury consisted of an aggravation to an underlying disease of the cervical spine or that she failed to address the submission that the appellant had not complained about the neck injury at an earlier point of time because of his and his doctors’ concern with the right shoulder injury.
Ground Five of the appeal is dismissed.

GROUND SIX: The Member committed errors of law by making findings and determinations which the appellant was not on notice of

Appellant’s submissions

The appellant submits he was not on notice of the following specific findings which are alleged to have been made:
(a) The appellant refers to reasons [114]–[120].
(b) The appellant says the specific findings complained of are:
“that he was ‘under active investigation and treatment as at the date of injury’ and that, although his GP’s records did not make mention of cervical spine issues in respect of the period from the time of Dr Ow-Yang’s report (27June 2019) to the date of the incident, she would nonetheless, determine he did have cervical spine issues and explain the absence of cervical spine complaints in the documents on the basis of what Santow JA stated in Clancy.”[86]
[86] Appellant’s submissions, [175]–[176], referring to Nominal Defendant v Clancy [2007] NSWCA 349 (Clancy).
The appellant submits that these findings were not based on submissions made by the respondent and that he was not put on notice of such findings, that he was caught by surprise and that as a result he suffered practical injustice.

Respondent’s submissions

The respondent submits that the pre-injury clinical record material was the subject of the respondent’s oral submissions, evidenced in the transcript at T 23.32–24.28.

Consideration

The respondent’s counsel said the following before the Member:
“Now Member I know from your engagement with me and my colleague Mr Adhikary that you’ve already examined some of the contemporaneous material relating to his pre-injury history. I’ll just quickly touch on them again. You’ll see at … page 365 [there is] a record dated the 1st of May, 2019 from Benjamin Muir who was a chiropractor reporting to Dr Dubey acknowledging that the [appellant] had chronic lumbosacral hip, upper back and neck pain.
We then have the … reporting of the … cervical CT Scan of the 30th of May, 2019 and the findings are there for us all to read but you’ll see at about point 8 on that page the observation was made that the right C6/7 intervertebral foramen appears narrow and the nerve root may be compressed within it. …
I then take you to the 8^th of July, 2019 and this is at page 258. This is a letter from Dr Dubey to Mark Gillham in Cowra who appear[s] to be a physiotherapist. … the next clinical note of any relevance to the application is that of the 15th of November 2019 in Dr Dubey’s notes at page 164 when the [appellant] reported following his work injury to the right shoulder …”[87]
[87] T 23.32.
To that submission the respondent added:
“So at this stage there’s still been no complaint whatsoever of any neck symptom and nor is there in Dr Dubey’s notes until after consultations with Dr Ashton. So that pre and post-injury history, in my submission, is entirely inconsistent with what has been assumed by Dr Bodel in providing his medicolegal opinions …”[88]
[88] T 25.24–32.
Furthermore, the Member indicated to counsel for the appellant that she had concerns with respect to the medical history (see paragraph 159 below).
The appellant’s counsel addressed in reply and said the following:
“There was mention made about the [appellant’s] disclosure in his statement with regard to his prior issues. Member, at no point has the [appellant] said in his evidence that he didn’t have those issues in about May or June 2019. What he says, and again this is consistent with the corroborative evidence before you, that’s from the [appellant’s] GP’s records that at the time of the fall he had no other symptoms to his neck.”[89]
[89] T 34.32–35.5.
The Member said the following:
“MEMBER: … I have to say I am really troubled by the evidence and by the submission that because there was no complaint in the period between June and November that there must be an injury. I need to make findings that have a proper basis and I’m just concerned that the medical evidence causes some difficulties with that and that I have to take too many liberties with the medical evidence to make that conclusion but I said what I think so I’ll let you go on but I really do have some concerns.
MR ADHIKARY: Yes, thank you, Member. Well, the GP’s records demonstrate no complaints for a few months, Member. They’re quite clear.”[90]
[90] T 13.17–30.
The Member directed the appellant’s counsel to the concern she had with the GP’s notes concerning treatment being provided to the appellant before 12 November 2019. With respect, it cannot have been a surprise when she relied on those notes to make the finding she did.
Ground Six of the appeal is dismissed.

GROUND SEVEN: The Member’s decision with respect to the interpretation of Dr Dubey’s records was a decision so unreasonable that no reasonable body could have [reached] it

Appellant’s submissions

The appellant submits, that the Member has interpreted the clinical records of Dr Dubey, as there had been multiple attendances by the appellant from 27 June 2019 to the date of injury, pursuant to Clancy, and that complaints related to the cervical spine would have been made but wree not recorded. The appellant submits such a conclusion was so unreasonable that no Commission Member could have reached it
The appellant submits:
“A reasonable Member would not have surmised, in absence of any evidence supporting same, that the appellant had complained of cervical spine issues to his GP over a period of approximately 4.5 months, even though he had attended his GP multiple times during this period and there is no reference to the cervical spine in the corresponding clinical entries.”[91]
[91] Appellant’s submissions, [187].

Respondent’s submissions

The respondent submits that the Member did not make the factual finding complained of and that the ground is without substance.

Consideration

The respondent is correct. The appellant does not identify where the alleged finding was made.
The Member does not find that the appellant made complaints related to the cervical spine which were not recorded by the treating general practitioner.
This ground of appeal is dismissed.

GROUND EIGHT: The Member committed errors of law by failing to acknowledge [an] injury can have multiple causes

Appellant’s submissions

Noting the Member’s remarks at reasons [110]–[112], the appellant submits that relying upon the cases referred to under the subheading “Dr Bodel’s opinion regarding consequential condition” in respect of Ground Four, that the Member committed errors of law by failing to acknowledge that an injury can have multiple causes.
The appellant says the Member discounted the evidence of Dr Bodel, and accordingly the fact that the appellant had injured his cervical spine as a result of the incident, because of the comments made regarding consequential conditions.

Respondent’s submissions

The respondent submits that the point was not whether an injury can have multiple causes. Dr Bodel (for whatever reason) did not engage with the issue of injury causation, gave no consideration to the absence of a complaint of neck symptoms to any doctor for eleven months and did not give any analysis of how the mechanics of the appellant’s fall had caused a neck injury. His alternative suggestion of a consequential condition suggests an entirely different mechanism of production or maintenance of symptoms from the injury simpliciter. The respondent submits the Member did not deny or rebut the concept of injury resulting from multiple causes, a commonplace proposition. It did not arise in the context of the dispute.

Consideration

Ground Eight of the appeal simply does not grapple with the finding the Member made. The Member did not deny or rebut the prospect that an injury might result from multiple causes.
What the Member said at reasons [110] was the following:
“Dr Bodel’s report is also unsatisfactory in that he expresses a number of inconsistent explanations for Mr Hinde’s condition. Without explaining his reasoning, Dr Bodel said that the fall clearly aggravated a disease process.”
The appellant’s problem derived from the report of Dr Bodel is that the doctor provided more than one explanation for his conclusion. Because the explanations were offered with equal force, they provided the Member with no assistance in determining the claim.
This is made clear by what the Member says at reasons [112] (see [28] above]).
Ground Eight of the appeal is dismissed.

GROUND NINE: The Member committed errors of law by indicating she did not accept his evidence on the issue of whether or not he suffered a neck injury

Appellant’s submissions

The finding complained of is at reasons [100].
The appellant makes three points with respect to this ground of appeal:
(a)    The appellant’s evidence “as to recovery from his prior conditions was not inconsistent with the medical evidence”.
(b)    The Member took issue with the one full page of the appellant’s statement addressing whether the surgery was reasonably necessary on the ground that there was no dispute that the surgery was reasonably necessary. However, the appellant submits that there was no concession in that regard prior to the appellant’s statement being finalised.
(c)    The Member’s conclusion that the appellant’s opinion contravened r 73 of the Rules. The appellant did not purport to be a doctor or suggest his opinion was based on scientific knowledge.

Respondent’s submissions

The respondent submits that this ground is no more than an expression of the proposition that the appellant argued for a different outcome. The appellant needs to identify error in order to engage the appellate jurisdiction of the Commission. Complaining about the result is not an identification of error. The respondent submits this ground appears to “offend clause 18 PIC Practice Direction 6”.
The respondent says the Member’s rejection of the appellant’s opinion on the need for surgery was warranted but, in any event, had no effect on the primary issue at large in the appeal.

Consideration

I assume that the respondent intends to refer to clause 24 or 25 of Procedural Direction WC3, not Procedural Direction PIC6 which refers to Medical Assessments.
The thrust of the Member’s conclusion was that the appellant’s statement was inconsistent with the contemporaneous medical evidence and that, to the extent of the inconsistency, she was not prepared to accept his evidence on the issue of whether or not he suffered a neck injury.
I regard the Member’s observation at reasons [99] as being a terse reminder that lay witness statements when prepared by professional advisers ought to avoid providing medical opinion. Such material ought not be included in a professionally prepared statement even in a jurisdiction such as the Commission which is not dependent on strict rules of evidence.
It may well be that the appellant did not purport to be a medical adviser and that the intention was to convey the effect of these conditions on him. However, it is of no assistance for the appellant to express what are essentially medical opinions.
There is no suggestion in the material that Mr Hinde did not have genuine symptoms or that the surgical therapy was not proposed with the expectation that his symptomatic circumstances would be improved.
The point of the Member’s observation at paragraph [100] was that the irrelevant unqualified opinion evidence from the appellant could not assist in determination of the issue, namely, whether or not Mr Hinde had suffered an injury to the neck on 12 November 2019. The thrust of the Member’s remarks was that the inconsistencies between Mr Hinde’s lay evidence contained in the statement and the contemporaneous medical evidence were such that, where there was an inconsistency, she preferred the contemporaneous medical evidence to the statement evidence.
In my view that was open to the Member.
Ground Nine of the appeal is dismissed.

CONCLUSION

The appeal is dismissed.
The Certificate of Determination dated 7 October 2022 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

2 November 2023