Hunt v Arrow Farmquip Pty Limited - [2013] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hunt v Arrow Farmquip Pty Limited [2013] NSWWCCPD 65
APPELLANT:	Aidan Richard Hunt
RESPONDENT:	Arrow Farmquip Pty Limited
INSURER:	Gallagher Bassett Services Workers Compensation NSW
FILE NUMBER:	A1-12671/12
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	12 September 2013
DATE OF APPEAL DECISION:	26 November 2013
SUBJECT MATTER OF DECISION:	Injury; assessment of evidence; onus of proof; Watts v Rake[1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] 114 CLR 164 discussed; reasons; requirement for cross examination; non-compliance with Practice Direction 6
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stacks/The Law Firm
Respondent:	Kemp & Co Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 12 September 2013 is confirmed. 2. No order as to costs.

BACKGROUND TO THE APPEAL

The appellant, Mr Hunt, was employed by the respondent, Arrow Farmquip Pty Limited (Arrow), as a trainee welder.
On 13 February 2007, whilst lifting steel beams in the course of his employment, Mr Hunt suffered an accepted injury to his lower back. Whether he also injured the thoracic region of the back in that incident is in issue.
Mr Hunt was certified unfit for duties until 8 March 2007. Thereafter he returned to work on modified duties.
On 14 June 2007 Mr Hunt was involved in a motor vehicle accident when returning from a gym program associated with the treatment of the injuries sustained on 13 February 2007. Mr Hunt was attempting to avoid a head on collision on a country road when he lost control of his vehicle, it rolled onto its roof coming to rest upside down. Whether he injured his thoracic spine in the motor vehicle accident is also in issue.
On 16 May 2011 through his solicitors, Mr Hunt made a claim for lump sum compensation pursuant to s 66. He claimed $15,400 in respect of 11 per cent whole person impairment and $12,500 for pain and suffering pursuant to s 67. The date of injury specified is 13 February 2007. Mr Hunt relied on a report of Dr A Hopcroft, a general surgeon (orthopaedics), dated 18 March 2011. Dr Hopcroft attributed five per cent of the whole person impairment to an injury to the thoracic spine and five per cent whole person impairment in respect of injuries to the lumbosacral spine. An additional one per cent was added due to ongoing restriction in his work capacity.
Arrow’s workers compensation insurer, Gallagher Bassett Services Workers Compensation NSW (Gallagher Bassett), denied liability for that part of the claim that related to the alleged injury to the thoracic spine. In a notice issued under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Gallagher Bassett accepted liability in respect of the injury to the lumbar spine as a result of the incident on 13 February 2007. It denied that Mr Hunt suffered an injury to his thoracic spine as a result of the incident on 13 February 2007 or the motor vehicle accident on 14 June 2007. The s 74 notice provided detailed reasons for the decision.
On 18 October 2012 Mr Hunt lodged an Application to Resolve a Dispute in the Commission. He claimed lump sum compensation in the terms referred to at [5].
On 8 November 2012 Arrow filed a Reply to the Application. It confirmed the denial of liability for the reasons referred to in the s 74 notice issued on 5 July 2011.
On 20 August 2013 the matter was listed for an arbitration hearing before a Commission Arbitrator at Tamworth. Both parties were represented by counsel. No oral evidence was called at the hearing. It was not disputed that Mr Hunt was injured on 13 February 2007 and 14 June 2007 in circumstances for which Arrow was liable. It was accepted that he had suffered an injury to his lumbar spine on 13 February 2007. The only issue before the Arbitrator was whether Mr Hunt also suffered an injury to his thoracic spine in either or both incidents. After hearing submissions the Arbitrator reserved his decision.
On 12 September 2013 he issued a Certificate of Determination and Statement of Reasons. He found against Mr Hunt with respect to the alleged injury to the thoracic spine and entered an award in favour of the respondent in respect of the alleged injuries to the thoracic spine on 13 February 2007 and 14 June 2007.
Mr Hunt appeals the Arbitrator’s determination.

THRESHOLD MATTERS

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

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 12 September 2013 records the Arbitrator’s orders as follows:
“1. Award for the respondent in respect of injury to the applicant’s thoracic spine on 13 February 2007 and 14 June 2007.

2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment of the applicant’s lumbar spine as a result of injury on 13 February 2007 and 14 June 2007.

3. The documents to be referred to the Approved Medical Specialist are:

(a)the Application to Resolve a Dispute and attachments;
(b)the Reply and attachments;

(c)the applicant’s additional statement dated 3 July 2013;

(d)the clinical notes of Northwest Health lodged as a late document on 16 August 2013;

(e)the report of Catherine Brabrook, occupational therapist on behalf of Advanced Personnel Management to Gallagher Bassett’s [sic] Services dated 22 March 2007, and

(f)this Certificate of Determination and Statement of Reasons.”

THE EVIDENCE

Mr Hunt’s evidence

In a statement dated 10 May 2010, Mr Hunt stated that on 13 February 2007 while lifting a piece of steel he “felt pain in my mid and lower back shortly after the accident. I also experienced pain in my right leg at the time.”
Following the injury on 13 February 2007 Mr Hunt stated that he had several months of physiotherapy and attended a gym program to strengthen his back.
On 14 June 2007 Mr Hunt was driving home after having attended a gym program. He was involved in a single vehicle accident whilst attempting to avoid a head on collision with another vehicle. Mr Hunt’s vehicle rolled and came to its rest upside down. He managed to extricate himself from the vehicle. He was collected by his brother and taken to the emergency department at Tamworth Hospital.
Mr Hunt stated that after the accident on 14 June 2007 he noticed “increased pain in my mid and lower back”. He stated that he has continued to suffer from back pain the level of which fluctuates and results in “flare-ups” every couple of months.
In a further statement dated 3 July 2013 Mr Hunt described what he called “another aggravation of my back pain over the weekend of 12-14 April 2008”.
Mr Hunt recalled that on the evening of Saturday 12 April 2008 he was attending a birthday party. He doesn’t recall drinking excessively that night but noted that more than five years had passed and it was difficult to recall exactly what happened.
Mr Hunt stated that he was certain that he was not involved in any type of “accident” that night and did not suffer any “injury” to his back. He said that he simply woke up on Sunday morning with increased back pain having been out the previous night socialising with friends.
By Monday 14 April 2008 his back had stiffened considerably such that he was incapable of working. As he could not get an appointment with his general practitioner on short notice he attended the emergency department at Tamworth Hospital for treatment. He was given pain medication and x-rays were taken of his lumbar and thoracic spines.
Mr Hunt was aware that the hospital notes of his attendance on 14 April 2008 recorded “drunk EtoH Sat night, can’t recall night’s events”.
Accepting that he must have told hospital staff that he was unable to recall the events of the previous Saturday evening he felt certain that had he been involved in some form of accident his girlfriend or other friends would have informed him.
Mr Hunt added that when liability was declined for any further physiotherapy or gym programs his back gradually began to stiffen up. He stated that he believed that was another reason why he suffered an aggravation of his condition over the weekend of 12 – 14 April 2008.
In reference to the case closure report prepared by Emily Anderson, an occupational therapist, on 7 July 2008 which indicated that Mr Hunt told his employer that a back injury on 14 April 2008 was not work related, Mr Hunt stated that he intended to convey that whatever it was that happened over the weekend of 12 -14 April was not work related as it was not a working day. He did not intend to convey that he had suffered a new injury as such.
In relation to the condition of Scheuermann’s disease in his thoracic spine, Mr Hunt stated that he was unaware of this condition prior to the work accident on 13 February 2007. It was not until his back was x-rayed on 18 April 2007 that he was told of this condition. He stated that he had never had any problems with his back prior to the work accident on 13 February 2007.

Other evidence

On 16 February 2007 Mr Hunt attended at the Northwest Health clinic. He initially saw an enrolled nurse Ms Coote who obtained a history that he had “hurt his back at work”. The entry contains a description of how the accident occurred and a report of severe pain when Mr Hunt tried to straighten up after lifting the heavy beams. During the same attendance on 16 February 2007 Mr Hunt saw Dr Kamerman. He again reported immediate pain after lifting a steel beam on 13 February 2007. He recorded “central low back pain. No radiation. List to left pain on right. L4 to S1.”
On 19 February 2007 an initial notification of injury form was completed. It is not clear who completed the form, which states that whilst lifting a plate of steel Mr Hunt suffered a “lower back strain”. I infer from the references in that document to “IW”, probably being a reference to “injured worker”, that it is unlikely that the form was completed by Mr Hunt and was probably completed by a representative of his employer.
In a separate document entitled “Register of Injury - Form A” dated 19 February 2007 which Mr Hunt did complete and sign, he stated that he suffered an injury “lifting heavy object” and described the type of injury and body part injured as “Lower back. Came to work with some soreness before this report”.
On 26 February 2007 Mr Hunt saw Dr Kamerman and reported as the reason for the contact “low back pain”.
On 26 February 2007 Dr Kamerman certified Mr Hunt unfit for duties until 8 March 2007. He certified the diagnosis of injury as “Low back strain.? Discogenic”.
On 8 March 2007 Dr Kamerman issued a further progress WorkCover medical certificate certifying Mr Hunt fit for suitable duties from 9 March 2007 to 25 March 2007.
On 22 March 2007 a report was prepared by Catherine Brabrook, occupational therapist from Advanced Personnel Management. The report is stated to be a “worksite assessment report”. Ms Brabrook recorded Mr Hunt’s symptoms. She stated:
“Mr Hunt reported that he currently experiences an aching pain in his lower back and between his shoulder blades. He stated that this is aggravated by sitting or standing for too long and can also result in a burning sensation in his lower back. Mr Hunt reported that once he arrives home after work and rests his symptoms subside and have reduced after a night’s sleep. He stated that he uses changes in position and occasional paracetamol to relieve any increase in pain”.
Ms Brabrook then reported on the physical demands of Mr Hunt’s pre-injury duties and identified a series of recommendations to accommodate Mr Hunt continuing to work with appropriate modifications to the tasks he is required to perform.
Dr Kamerman continued to certify Mr Hunt fit for suitable duties from 25 March 2007 to 19 April 2007. He maintained the diagnosis of lower back strain. On 16 April 2007 Dr Croaker, another general practitioner from the same surgery as Dr Kamerman, Northwest Health clinic in Tamworth, recorded “lower right back – increased pain”, and certified that Mr Hunt was unfit for work from 16 April to 19 April 2007 as a result of “lower back strain”. Mr Hunt required a further x-ray.
On 18 April 2007 Dr S George performed an x-ray of the thoraco-lumbar spine. He noted a history of decreasing incidence of “right low back pain T11 to S1 region” from February 2007. Dr George reported the following findings:
“Thoracic Spine
There are twelve pairs of ribs. There is anterior wedging of vertebral bodies from T5 to T11 level with a few of them showing large Schmorl’s nodes and end plate irregularity. This is likely to represent developmental osteochondrosis ? Scheuermanns.
The bone density is within normal limits.
Lumbar Spine
There is retrolisthesis of L5 over S1 of approximately 6 mm.
The lumbar vertebral bodies appear normal in height. Adjacent disc spaces appear normal. The bone density is within normal limits.”
On 19 April 2007 Dr Croaker recorded that Mr Hunt’s pain was improving but that he was still having twinges. She noted x-rays showed possible Scheuermann’s disease. She recommended he develop back and shoulder strengthening exercises. Dr Croaker certified Mr Hunt unfit for work until 23 April 2007 again diagnosed “Low back strain. ?Discogenic”.
On 30 April 2007 Dr Croaker recorded that “work is going well with new restrictions back fine”.
On 21 May 2007 Dr Croaker recorded “problems with pain in lower back after seven hours of working”.
On 22 May 2007 Mr Hunt completed a workers compensation claim form. In addition to formal details he stated that he suffered a “strained back whilst lifting steel rails”. Under the heading “description of injury” he added “lower back strain, ongoing pains and aches”.
On 23 May 2007 Dr Croaker again recorded that Mr Hunt’s duties were “causing pain in his lower back”.
On 4 June 2007 Dr Croaker again certified Mr Hunt fit for selected duties with limitations on lifting up to 5 kg and with limitations on sitting and standing up to 90 minutes at a time.
On 14 June 2007 Mr Hunt presented at the emergency department of the Tamworth Hospital. He reported having been involved in a motor vehicle rollover at approximately 3.30 pm that day. The history records that he was suspended upside down by the seatbelt which when released caused him to strike his head. He was conveyed to the emergency department by his brother who attended the accident site. The notes record that Mr Hunt complained of painful “® side of T spine and ® side of L/S spine. Bruise on lat. side ® leg”. The notes record a history of lumbar disc injury in February 2007 from lifting a heavy object at work and Scheuermann’s disease of the thoracic spine diagnosed two months earlier. There was tenderness over the thoracic and lumbosacral spine.
An x-ray of the thoraco-lumbar spine was performed by Dr A Petersen on 14 June 2007. He recorded the following findings:
“Clinical:- MVA
Findings:-Scheuermann’s disease is noted in the mid thoracic spine with some increased kyphosis as well as Schmorl’s nodes at the adjacent vertebral end plates.
The lumbar spine appears quite well preserved. The sacro-iliac joints are unremarkable. No fracture or bone destructive lesion.
Comment:- No acute pathology demonstrated.”
Dr Barratt, resident medical officer at Tamworth Hospital, reported to Dr Cameron concerning Mr Hunt’s admission on 14 June 2007. He stated that Mr Hunt was the driver in a single vehicle roll-over. He said:
“[Mr Hunt] appears to have exacerbated his pre-existing spinal conditions ie his Scheuermann’s disease of thoracic spine and his lumbar disc injury which he sustained at work in February this year.
I cannot see any fractures on his X rays taken this evening. He is seeing you on 18^th June and has been told not to work before your review.”
He was prescribed anti-inflammatory medication.
On 18 June 2007 Mr Hunt saw Dr Croaker at the Northwest clinic. He reported that he had been involved in a motor vehicle accident coming home from a gym program the previous Thursday. He reported “back pain very severe up right side and in lower back”. Dr Croaker certified Mr Hunt fit for suitable duties limited to six hours per day and with a lifting limit up to 5 kg and limitations on sitting and standing of up to 90 minutes.
On 25 June 2007 Dr Kamerman issued a further WorkCover medical certificate. He diagnosed low back strain and certified Mr Hunt fit for suitable duties from 26 June 2007 to 8 July 2007.
On 26 June 2007 a report was prepared by Dr Chris Oates, a consultant occupational physician, at the request of Arrow’s workers compensation insurer Gallagher Bassett Services Workers Compensation NSW. Dr Oates recorded the history of the injury on 13 February 2007 and Mr Hunt’s progressive return to duties, noting that shortly prior to the motor vehicle accident in which he was involved he was working six hours a day with limitation on his lifting limit and avoiding extended periods of sitting and standing.
With respect to the motor vehicle accident on 14 June 2007 Dr Oates recorded that Mr Hunt went to Tamworth Hospital and had x-rays which were normal. He was given some paracetamol for a flare-up of thoracic pain from pre-existing Scheuermann’s disease and also a flare-up of low back pain and he had right paraspinal muscle pain. He said the pain from the motor vehicle accident lasted about four days. Dr Oates noted the x-ray of the thoracic spine on 18 April 2007. He noted anterior wedging of T5 to T11 vertebral bodies with some large Schmorl’s nodes and end plate irregularity including Scheuermann’s disease. He noted the bone density was normal.
In terms of past history Dr Oates noted that Mr Hunt has had other back pain since the age of 12 which was described as growing pains at first and then an x-ray showed Scheuermann’s disease. Dr Oates took a careful history of Mr Hunt’s current status, his general health, social and work history and examination findings. He offered the following opinion in terms of diagnosis:
“The diagnosis is lumbar musculoligamentous strain with findings now mainly in the left sacroiliac joint area.
There is a background of pre-existing constitutional lower thoracic Scheuermann’s disease which produces in him a sense of stiffness in the middle back area. This is a separate condition from the low back pain which is mainly central and left sided and associated with some left hamstring tightness.”
Dr Oates made contact with Mr Hunt’s nominated treating doctor Dr Kamerman on 25 June 2007. They discussed Mr Hunt’s back injury and his return to work program which was complicated by the recent motor vehicle accident and increasing lower back pain and thoracic pain. Dr Oates said:
“I told the nominated treating doctor the claimant was worried about Scheuermann’s disease diagnosis in the thoracic spine. The nominated treating doctor told me he had told the claimant on two occasions before that this is a radiological diagnosis and not associated with pain. I asked the nominated treating doctor to reassure the claimant as worry about his thoracic spine is sapping his confidence that he will be able to resume his normal job as a welder.
I told the nominated treating doctor that the claimant reported 70% improvement in the low back pain and asked that he relax the weight lifting restriction of 5 kgs”.

On 4 July 2007 Dr Kamerman recorded “no problems. I didn’t realise that he had a ten hour day four days a week. Apparently some mods have been suggested.” He issued a WorkCover progress medical certificate certifying Mr Hunt fit for suitable duties from 5 July 2007 to 13 July 2007. He lifted the lifting restriction to 10 kg. The medical diagnosis was “low back strain”.
On 16 July 2007 Mr Hunt saw Dr Kamerman again. The notes of the consultation recorded “improving further. No problems. Physio has discharged. …”. He issued a further WorkCover medical certificate. On this occasion the lifting limit was increased to 15 kg, the diagnosis remained “low back strain”.
On 26 July 2007 Dr Russell King, another practitioner at the Northwest Health centre, saw Mr Hunt and recorded “needs updating of med cert, no real problems with back has occasional twinges. Doing most duties at work. No analgesia or physio.” He certified Mr Hunt fit for suitable duties from 28 July to 24 August 2007 with a diagnosis of low back strain.
On 7 August 2007 Dr Casey Wadwell of the Northwest clinic saw Mr Hunt and noted “needs final WorkCover cert. Much improved. Nil lower back pain …”. He certified Mr Hunt fit for suitable duties for up to 10 hours a day 5 days a week with a lifting limit of 20 kg. The diagnosis was lower back strain.
On 14 April 2008, Mr Hunt attended at the Tamworth Hospital emergency department The triage notes indicated that he provided a history that over the past two days he suffered back ache in the “mid-lower back region”. He said he had woken up with pain. The notes include the following history: “Drunk EtOH Sat night, can’t recall night’s events”. The notes record the history of back injury in February 2007 and “chronic pain since”. X-rays of the thoracic and lumbar spine taken at the hospital on 14 April 2008 by Dr Khandelwal reported:
“THORACIC SPINE:
Clinical - Tender T11, L3 and L4. ? injury.
Findings- Anterior wedging of multiple vertebral bodies at mid and lower thoracic levels is evident with approximately 20% reduction in the anterior height of presumably the T7 vertebral body.
The upper most thoracic vertebra could not be optimally assessed in the lateral projection, however, no focal bone lesion is identified on the AP projection of the upper thoracic vertebra.
Intervertebral disc heights at all visualised thoracic levels. Minor endplate irregularity is noted at multiple thoracic levels and the possibility of Scheuermann’s disease is likely.
LUMBO-SACRAL SPINE:
The lumbar vertebrae demonstrate a satisfactory height and alignment. No focal bone lesion is seen. Disc heights at all levels appear to be well preserved.
Facet joints and bilateral sacro-iliac joints appear unremarkable.”
The hospital discharge summary, signed by a hospital medical officer, whose signature is indecipherable, indicates that the x-ray findings were compared to the findings of the x-rays taken in 2007 and indicate no fracture and no change. The relevant entry states:
“x ray compared to 07 pictures, no change, ø # pt reassured muscular pain…”.
On 20 April 2008 Mr Hunt again attended at the emergency department of Tamworth Hospital. He presented with a history of eight months of backache worsening over the last week. The triage notes indicate a history of “acute exacerbation of chronic back pain”. The history of the injury sustained in February 2007 is recorded with treatment from anti- inflammatory medication and physiotherapy. The notes state:
“Woke up 2/52 ago w exac. (? Lying in one position for prolonged period) → pain is situated in left lower back, radiating to left buttock & lateral thigh & assoc w some numbness in that region.”
Also on 20 April 2008 Dr Beattie, an emergency department resident medical officer, wrote a note addressed “To Physiotherapy”. The note recorded the history of acute exacerbation of chronic back pain initially sustained in injury in February 2007. The note requested that Mr Hunt be taught exercises to strengthen his lower back and techniques to protect the back in future.
On 23 April 2008 Mr Hunt attended at the Northwest clinic. Natalie Stockman, a registered nurse, reported “presenting today as he has strained his lower left back again. Same region as previous WorkCover claim”. During the same visit Mr Hunt saw Dr Heather Carr. She recorded “[Mr Hunt] feels it is a re-occurrence of previous WorkCover injury. Felt back ache on 11 April – no acute cause, low back ache with sharp stabbing pains into the left back …”. Her examination on that occasion revealed tender lower lumbar back with some neurological symptoms.
Mr Hunt attended at the Northwest Health clinic on a further 20 occasions between 28 April 2008 and 4 April 2012. There is no reference to any complaints of pain in the thoracic area of the back on any of those occasions.
On 20 May 2008 Mr Hunt resigned from Arrow Farmquip.
On 7 July 2008 Emily Anderson, an occupational therapist from OT Services prepared a “closure report” addressed to Gallagher Bassett. The report was essentially a report on the outcome of Mr Hunt’s rehabilitation program. It made reference to the initial workplace injury as an injury to the lower back. During the initial assessment which took place on 13 May 2008 Mr Hunt reported that “he believes his workplace injury happened on the weekend when he became inebriated and woke up on Sunday morning with a reported back injury”. At [7] of the report, Ms Andersen stated “Tamworth OT Services attended a case conference with Mr Hunt and his nominated treating doctor on 19 May 2008 where Mr Hunt revealed to his nominated treating doctor that his back injury was indeed a non-work related injury and he had since resigned from Arrow Farmquip and was eager to start work with a bakery in Manilla the following week.”
On 19 May 2010 Mr Hunt again presented at the emergency department of Tamworth Hospital. He reported low back pain. He stated that he had moved house on Saturday and was lifting boxes/furniture. On examination he exhibited tenderness over the mid-thoracic spine and lumbosacral spine.
A follow-up letter from Dr Reardon, an emergency department intern, to Dr Kamerman confirmed a presentation history of five days lower back pain exacerbated by lifting and standing. It confirmed the history of moving house over the weekend and the requirement to lift heavy boxes. The physical findings as indicated above were noted.
On 20 May 2010 Dr Wearne, a locum at the Northwest Health centre, certified Mr Hunt fit for suitable duties from 20 May 2010 to 5 June 2010. He certified “low back pain - with ? nerve impingement”.
On 21 June 2010 Dr Khandelwal performed a CT scan of the lumbar spine. He noted “small left posterolateral disc protrusion at L5/S1 level reaching up to the origin of left S1 nerve root. No significant spinal canal stenosis is seen at any visualised levels. Mild spondylitic changes at other levels as described”.
On 18 March 2011 Dr Hopcroft, a general surgeon (orthopaedics), prepared a report dated 18 March 2011. The examination and report was at the request of Mr Hunt’s solicitors. Dr Hopcroft obtained a history of the lifting incident on 13 February 2007 and the motor vehicle accident in which Mr Hunt was involved on 14 June 2007. He noted that Mr Hunt complained of significant ongoing pain in both the thoracic and lumbosacral spine together with significant pain in the left leg and associated numbness and paraesthesia of his feet. The doctor recorded a past medical history of diagnosis of Scheuermann’s osteochondritis at the thoracic spine many years earlier. Dr Hopcroft conducted a physical examination and reported the findings.
Dr Hopcroft noted the findings of the x-ray of the thoracolumbar spine performed on 14 June 2007 (referred to at [46]). He also commented on the x-ray of the thoracic spine performed by Dr Khandelwal on 14 April 2008 (referred to at [58]). He recorded the findings and added his own assessment of the significance of the findings in the following passage:
“anterior wedging of multiple vertebral bodies at mid and lower thoracic levels is evident (as seen on the previous x-ray) with approximately 20 per cent reduction in the anterior height of presumably the T7 vertebral body (almost certainly an additional x-ray finding which accounted for his ongoing mid-thoracic pain following the motor vehicle accident)”. (Emphasis in original)
Dr Hopcroft concluded that:
“comparative examination of those two films shows 20% reduction in the vertebral anterior body height of T7 almost certainly a wedge compression fracture arising from the motor vehicle accident”.
Dr Hopcroft opined that Mr Hunt suffered a wedge compression fracture of his seventh thoracic vertebra and significant lumbosacral disc protrusion in the work related injury on 13 February 2007 and the associated motor vehicle accident on 14 June 2007. He concluded that Mr Hunt was not a candidate for surgery but recommended a continuing regular exercise program and hydrotherapy. Dr Hopcroft concluded by stating “I believe his work related activities have been a substantial cause of his current spinal pain”. He assessed Mr Hunt as suffering from five per cent whole person impairment in reference to the injury to the thoracic spine and five per cent whole person impairment in reference to the lumbosacral injury. He added a further one per cent having regard to Mr Hunt’s ongoing restrictions to his capacity for work, bringing the total to 11 per cent whole person impairment.
On 26 July 2011 Dr Tony Blue prepared a report to Moroney Lawyers following his examination of Mr Hunt on 25 July 2011. Dr Blue commented that he had been unable to review any of the radiological investigations as Mr Hunt did not bring them with him to the examination believing that they had been held by his solicitor. Dr Blue stated that his opinion is based entirely upon the evaluation of objective findings on 25 July 2011. Dr Blue obtained a detailed history of the injuries sustained on 13 February 2007 and 14 June 2007. Mr Hunt denied having any previous back problems however notwithstanding his denial Dr Blue noted the comments made by Dr Hopcroft in his report of 18 March 2011 concerning the x-rays of Mr Hunt’s spinal column taken on 14 June 2007 revealing thoracic Scheuermann’s disease. He also noted Dr Oates in his report of 26 June 2007 provided a similar history of pre-existing spinal Scheuermann’s disease. Dr Blue recorded the details of his examination findings.
He opined that based on overall presentation, without x-ray examinations, the most likely diagnosis is that the incident on 13 February 2007 caused an aggravation of previously existing Scheuermann’s disease which would have lasted no longer than six months until it was probably further aggravated by the second accident which he was involved in, a road traffic accident, with this aggravation also being of temporary nature lasting no longer than four months.
Dr Blue specifically noted that aside from the injuries on 13 February 2007 and 14 June 2007, Mr Hunt made no mention of any further incident including “any further incident such as the home injury sustained on 11 April 2008”. When specifically asked about his diagnosis concerning whether Mr Hunt sustained a compression fracture of the seventh thoracic vertebra and whether it was due to the incident on 13 February 2007 or the motor vehicle accident on 14 June 2007 or some other cause, Dr Blue opined that the two incidents in question “may well have caused aggravation of his pre-existing thoracic Scheuermann’s disease but if so then he has made a full and complete recovery from these bouts of aggravation”. He added that without reviewing the x-rays he was unable to comment on the possibility of a wedge compression fracture of T7 vertebral body. He stated that he would need to examine closely the shape of the wedge before offering opinion but concluded “the most likely cause I would believe is his Scheuermann’s disease”.

THE ARBITRATOR’S REASONS

It was not disputed before the Arbitrator that the worker suffered an injury to his lumbar spine on 13 February 2007 and 14 June 2007. The single issue before the Arbitrator was whether Mr Hunt injured his thoracic spine on either or both of those dates. The Arbitrator noted that Arrow had accepted that Mr Hunt reported thoracic pain and a head injury after the motor vehicle accident on 14 June 2007 but it denied that that accident caused the wedge fracture of the seventh thoracic vertebrae as found by Dr Hopcroft.
The Arbitrator did not accept Dr Hopcroft’s view as to causation of the wedge compression fracture of the seventh thoracic vertebrae. He stated that Dr Hopcroft had relied on an x-ray of 14 August 2008 to conclude that there was evidence of a fracture of the T7 vertebra. However, Dr Hopcroft had no history of Mr Hunt attending Tamworth Hospital on 14 April 2008 with a history of backache in the “mid-lower back” region two days before his presentation to hospital. Although Mr Hunt had no recollection of any injury provoking his admission to hospital on that occasion, the Arbitrator concluded that the hospital records provided the best guide for the reason for his attendance at the hospital on that occasion. The notes recorded that the worker had been drinking alcohol on the Saturday night (13 April 2008) and could not recall the evening’s events. The Arbitrator concluded that Mr Hunt’s explanation for his admission to hospital on that occasion, namely that he merely woke up with back pain without having been subjected to any particular trauma, was “reconstruction and speculation” on his part.
The Arbitrator provided an additional reason for his non-acceptance of Dr Hopcroft’s opinion and that was the fact that Dr Hopcroft had made no reference to the x-ray of 18 April 2007, that is, between the alleged injuries on 13 February 2007 and 14 June 2007, which was accompanied by a reference to pain in the right lower back from T11 to S1 but no complaint of pain above T11. The Arbitrator noted that the report made reference to wedging of the vertebral bodies from T5 to T11 with evidence of Schmorl’s nodes and Scheuermann’s disease.
For these reasons the Arbitrator rejected Dr Hopcroft’s view as to the cause of the wedge compression fracture of the T7 vertebra. The Arbitrator speculated, without making a finding, that the fracture may have arisen from an incident that occurred on or about 11 April 2008 which caused Mr Hunt’s attendance at Tamworth Hospital on 14 April 2008.
Dr Oates examined Mr Hunt on 21 June 2007, within a week of his involvement in the motor vehicle accident. The Arbitrator found that it was significant that at that time the history recorded by Dr Oates was that Mr Hunt was given panadol for a flare-up of thoracic pain from pre-existing Scheuermann’s disease and also a flare-up of low back pain. The history he recorded was that the pain from the motor vehicle accident lasted about four days. The Arbitrator accepted Dr Oates’s opinion and in the absence of any complaints of thoracic pain prior to the motor vehicle accident on 14 June 2007 and in view of the history recorded by Dr Oates, which the Arbitrator accepted, that the flare-up of pain experience by Mr Hunt in his thoracic spine was from his pre-existing Scheuermann’s disease. He also accepted that the thoracic pain and the lower back pain lasted about four days following the motor vehicle accident on 14 June 2007.
The Arbitrator weighed Mr Hunt’s complaints of pain following the original incident of 13 February 2007 from the clinical notes produced by his treating doctors from the Northwest Health clinic. The Arbitrator examined the entries on nine occasions between 16 February 2007 and 18 June 2008. On each occasion there was reference to lower back pain but no reference to thoracic pain. This, the Arbitrator found, was consistent with the medical certificates that had been issued by various doctors from the Northwest Health practice.
In view of the findings referred to at [82], the Arbitrator held that Mr Hunt made no complaint of pain in his thoracic spine after the initial injury on 13 February 2007. He rejected Mr Hunt’s evidence that he experienced pain in the thoracic region of his back shortly after the incident on 13 February 2007, however, he did accept that he suffered pain in his lower back at that time.
The Arbitrator found that the flare-up of pain in Mr Hunt’s thoracic spine following the motor vehicle accident on 14 June 2007, did not evidence an increase in symptoms Mr Hunt may have had in his thoracic spine as a result of his Scheuermann’s disease.
The Arbitrator held that Mr Hunt did not sustain an injury to his thoracic spine on 13 February 2007.
The Arbitrator accepted that the mere reporting of symptoms by an injured worker does not, without more, prove that a part of the body has been injured within the meaning of the Workers Compensation Act 1987 (Visy Board Pty Limited v Nguyen [2010] NSWWCCPD 101 at [75]).

ISSUES ON APPEAL

Contrary to Practice Direction 6, Mr Hunt’s submissions do not clearly articulate the grounds of appeal and submissions in support of them. Rather the submissions take the form of a review of the correctness of the Arbitrator’s conclusions. Such a review is no longer available under s 352 of the 1998 Act. Since s 352 was amended on 1 February 2011, an appeal is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion, and to the correction of any such error. An appeal is not a review or a new hearing.
That said, Mr Hunt’s submissions reveal two main areas of complaint:
(a) the Arbitrator’s finding that Mr Hunt did not sustain an injury to his thoracic spine in the original injury on 13 February 2007, and
(b) “the effects of the motor vehicle accident on 14 June 2007”.

Mr Hunt’s submissions in support of the first complaint

The Arbitrator’s rejection of the allegation of injury to the thoracic spine in the incident of 13 February 2007 was based too heavily on a failure to record complaints of injury to the thoracic spine in the patient health summary notes from the Northwest Health clinic.
The Arbitrator failed to give reasons for the rejection of Mr Hunt’s uncontradicted evidence that he had no thoracic back pain prior to the injury on 13 February 2007 but did suffer thoracic pain thereafter.
The recording by Catherine Brabrook on 22 March 2007 of a complaint of pain in the lower back and between the shoulder blades, and the referral for x-ray of the thoracic spine in April 2007 supports continuing complaints of thoracic back pain.
Dr Oates’s discussion with the treating general practitioner of increasing low back and thoracic pain supports a finding of injury to the thoracic spine.

Mr Hunt’s submissions in support of the second complaint

The hospital clinical notes following the motor vehicle accident record symptoms of painful right sided thoracic spine and painful right lumbar spine. The clinical notes record tenderness of the thoracic spine from T7 to T8. The notes record a diagnosis of exacerbation of pre-existing spinal conditions (plural).
The Arbitrator erred by relying on Dr Oates’s evidence because his opinion that the pain from the motor vehicle accident lasted only four days was ambiguous as to whether he was referring to the lumbar or thoracic spine. The difficulty is compounded by Dr Oates’s failure to conduct any examination of the thoracic spine other than to note pre-existing Scheuermann’s disease and kyphosis.
Dr Oates’s opinion fails to make any allowance for an aggravation of the pre-existing Scheuermann’s disease.
Acknowledging that cross-examination is not required in Commission proceedings and noting that it had to be suggested that Mr Hunt was not telling the truth in relation to complaints of mid back pain following the first or second injury, it was incumbent on the respondent Arrow, to seek leave to put this assertion to the appellant but it did not do so.

The submission that Mr Hunt continued to suffer from thoracic and lumbar back pain is supported by the following entries in the Tamworth Hospital notes of 14 April 2008:
· “Work related back injury, February 2007, chronic pain since, had physiotherapy for months after, none past 6/12”.
· Mr Hunt was found to be tender over the thoracic and lumbar spine.
The reference to “chronic back pain” in Dr Beattie’s referral letter to a physiotherapist of 20 April 2008, supports a finding of injury to the thoracic spine.
The Arbitrator failed to refer to the report of Dr Tony Blue. Dr Blue concluded that the incident on 13 February 2007 caused aggravation of the pre-existing Scheuermann’s disease and that it was further aggravated in a motor vehicle accident on 14 June 2007. Having accepted aggravation, his opinion that the first aggravation lasted only six months and the aggravation from a motor vehicle accident would have lasted only four months is a bare ipse dixit.
Mr Hunt alleged that there were “numerous Court of Appeal decisions”, without citing the decisions relied upon, “which dictate that the evidentiary onus, at a minimum, shifts to the respondent once it is accepted that an aggravation of a pre-existing condition has occurred to provide cogent evidence and/or reasoned opinion as to why that aggravation would have ceased at a point in time”. Dr Blue provided no reason or evidence to support his opinion that the aggravation had ceased and it was totally arbitrary.
The appellant submits that the Arbitrator’s decision should be set aside and in its place there should be a finding that Mr Hunt sustained an injury to his thoracic spine on 13 February 2007 and again on 14 June 2007 and a determination of his whole person impairment as a result of those injuries should be referred to an Approved Medical Specialist for assessment.

Arrow Farmquip’s submissions

It is evident from the clinical notes of the Northwest Health clinic that Mr Hunt made no complaint to his treating doctors, Dr Kamerman and Dr Croaker, between 16 February 2007 and 14 June 2007 of complaints to his thoracic spine. All of his complaints relate to the lower back. This is consistent with the WorkCover medical certificates which consistently refer to injury to the low back or low back strain.
Arrow submit that whilst it is accepted that Mr Hunt complained of thoracic pain and head injury as a result of the incident on 14 June 2007, the radiological investigations of his thoracic spine at that time revealed no pathology other than the presence of Scheuermann’s disease.
Dr Oates saw Mr Hunt on 21 June 2007, a week after the motor vehicle accident. Dr Oates concluded that Mr Hunt suffered a lumbar musculoligamentous strain, but regarded the pre-existing constitutional lower thoracic Scheuermann’s disease as separate and distinct from the musculoligamentous strain the applicant suffered.
Dr Croaker’s notes of 18 June 2007 record “back pain very severe up right side and in lower back” but made no specific mention of thoracic spine complaints. Further, after that entry there was no mention of any thoracic spine complaints.
The Arbitrator was correct to reject Dr Hopcroft’s evidence. Dr Hopcroft failed to have regard to the x-rays of the thoracic and lumbar spine taken on 18 April 2007 which revealed anterior wedging of the vertebral bodies from T5 to T11 but no reference to any wedge fracture at T7. Further if it is accepted that Mr Hunt suffered a compression fracture at T7 it was revealed for the first time in April 2008 after a drunken night out. Dr Hopcroft had no history of the events over the weekend of 12 to 13 April 2008 and Mr Hunt’s subsequent attendance at Tamworth Hospital on 14 April 2008. Given that he has not taken a full history, Dr Hopcroft’s views as to causation of a wedge compression fracture in the thoracic vertebra cannot be accepted. The Arbitrator’s decision should be confirmed.

DISCUSSION AND FINDINGS

Did Mr Hunt sustain an injury to his thoracic spine in the original injury on 13 February 2007?

Mr Hunt submits that the Arbitrator erred by relying heavily on the general practitioner’s notes to contradict his evidence concerning his complaints of thoracic injury. In support of this submission Mr Hunt relied on the decisions in Fitzgibbon v Waterways Authority [2003] NSWCA 294 and Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 (Fitzgibbon), however the submission was not developed as to the significance of those decisions in the circumstances of this case.
In Fitzgibbon in the High Court, Hayne J held (at [130]) that it is an error to fail to examine all of the material relevant to the particular issue. Not only did the Arbitrator examine all of the relevant material, but he did so in a logical and methodical way to reach a conclusion that Mr Hunt’s evidence on the issue of his thoracic injury could not be accepted.
The Arbitrator noted (at [40] of Reasons) that Mr Hunt made no complaint to his treating doctors of pain to his thoracic spine following the injury on 13 February 2007. The medical records held by doctors he consulted in respect of that injury referred only to complaints in relation to the lower back, which is consistent with the WorkCover medical certificates and the diagnosis of low back strain.
Between the injury on 13 February 2007 and 14 June 2007 when Mr Hunt was involved in a motor vehicle accident, he visited various doctors at the Northwest Health clinic on 19 occasions. The history recorded in the clinical notes during that period makes no reference to any complaints of pain in the thoracic region of the back.
At [38] of Reasons the Arbitrator listed nine entries from the patient health summary held by the Northwest Health clinic of Mr Hunt’s attendances there between 16 February 2007 and 18 June 2007. With minor exceptions, each of the entries made specific reference to complaints of pain in the lower back.
It is clear from the analysis of the evidence referred to at [29]-[44] of this decision that Mr Hunt was seeking regular medical treatment from the Northwest Health clinic. He saw a number of doctors at that clinic, including Dr Kamerman and Dr Croaker. He had numerous opportunities to report symptoms of thoracic pain, but failed to do so.
I accept that on 22 March 2007, that is, after the initial incident on 13 February 2007 and before the motor vehicle accident of 14 June 2007, Catherine Brabrook, an occupational therapist, noted a history of aching in the lower back and between the shoulder blades. Conceivably, that entry could support symptoms of thoracic pain, however, given the overwhelming evidence of complaints to his treating practitioners, of complaints only in the lower back, that single entry, without more, when weighed against the preponderance of the evidence to which I have referred and on which the Arbitrator relied, could not support a conclusion that the Arbitrator erred in finding that Mr Hunt did not injure his thoracic spine in the lifting incident on 13 February 2007.
Mr Hunt submits that the fact that he was referred for x-rays of his thoracic spine in April 2007 supports a conclusion that he was complaining of thoracic pain following the injury on 13 February 2007. That submission is not supported by the evidence. As I have indicated, prior to the x-ray on 18 April 2007 Mr Hunt’s complaints to his doctors concerned only complaints of pain to his lower back. He made no complaints to his doctors of thoracic pain.
The x-ray report of 17 April 2007 by Dr George is addressed to Caroline Davie, Mr Hunt’s physiotherapist. There is no report in evidence from Ms Davie to explain the history she obtained or the reason for the referral. Further, Dr George who performed the x-ray noted a history of decreasing incidence of right low back pain from T11 to S1, which is consistent with pain in the lower back, not the thoracic area of the back. The evidence does not support a finding that he was suffering from thoracic back pain since 13 February 2007. The evidence is firmly to the contrary.
I do not accept Mr Hunt’s submission that the extract in Dr Oates’s report on page 4 of “increasing lower back pain and thoracic pain” supports his contention that he was complaining of thoracic pain on a continuous basis from the initial injury.
The history obtained from Dr Oates in respect of the incident of 13 February 2007 makes reference only to complaints of pain in the lower back. The first reference to thoracic pain occurred after the motor vehicle accident on 14 June 2007. Dr Oates recorded that Dr Hunt went to Tamworth Hospital and had x-rays which were normal. He was given panadol for a flare-up of thoracic pain from pre-existing Scheuermann’s disease and a flare-up of low back pain. Ultimately Dr Oates diagnosed a lumbar musculo-ligamentous strain. This, he said, is against a background of pre-existing constitutional lower thoracic Scheuermann’s disease which produces the sense of stiffness in the middle back. Dr Oates urged Dr Kamerman to reassure Mr Hunt that he should not be concerned about the condition of his thoracic spine.
For these reasons the conclusion reached by the Arbitrator was open on the evidence and discloses no error.

Did Mr Hunt injure his thoracic spine in the motor vehicle accident on 14 June 2007?

Mr Hunt submitted that the Dr Oates evidence was misleading and ambiguous and the Arbitrator erred by relying on it. Dr Oates’s evidence was perfectly clear and was compelling. It was open to the Arbitrator to accept it.
Dr Oates saw Mr Hunt within a week of his involvement in a motor vehicle accident on 14 June 2007. It is clear from the extracts from his report to which I referred, that Dr Oates clearly formed the opinion that Mr Hunt suffered a lumbar musculo-ligamentous strain and a flare-up of thoracic pain from pre-existing Scheuermann’s disease. Dr Oates concluded that based on the history he obtained from Mr Hunt at that time, the effects of the motor vehicle accident on both the thoracic spine and the lumbar spine were short lived and on Mr Hunt’s own admission, at that time, “the pain from the motor vehicle lasted about four days”. There is no ambiguity, Dr Oates made it clear that Mr Hunt was given panadol for a flare-up of thoracic pain from the pre-existing Scheuermann’s disease and also a flare-up of low back pain, which he had in the right paraspinal muscle. The Arbitrator’s rejection of the claim that Mr Hunt continued to experience thoracic pain thereafter was consistent with Dr Oates’s opinion, which was compelling in that he examined Mr Hunt and took a history of his complaints within a week of his involvement in the motor vehicle accident.
Mr Hunt’s submission that Dr Oates did not examine the thoracic spine is incorrect. Dr Oates’s examination findings include a finding of moderate thoracic kyphosis from pre-existing Scheuermann’s disease (page 4 of the report of 26 June 2007). Mr Hunt submits that Dr Oates’s reference to his back improving about 70 per cent overall since the injury adds to the ambiguity of his opinion. I disagree. If there was any ambiguity, which I do not accept, it was clarified on page 5 of Dr Oates’s report, where he said that he told Mr Hunt’s nominated treating doctor that he reported 70 per cent improvement in low back pain.
I also reject the submission that Dr Oates made no allowance for the possibility of an aggravation of the Scheurmann’s disease arising from Mr Hunt’s involvement in the motor vehicle accident. Dr Oates said he had discussed Mr Hunt’s concern about the diagnosis of Scheurmann’s disease with his general practitioner, Dr Kammerman. Dr Kammerman said he had reassured Mr Hunt on two occasions that the diagnosis was a radiological diagnosis and was not associated with pain, Dr Oates asked Dr Kammerman to reassure Mr Hunt again that he should not be concerned with his thoracic spine as it was sapping his confidence. The Arbitrator’s reliance on Dr Oates’s evidence to conclude that Mr Hunt had not aggravated his constitutional condition, but had merely suffered a short term flare-up of symptoms was open to the Arbitrator and does not involve any error.
Mr Hunt submits that the Arbitrator erred by rejecting his evidence when it was not tested by cross examination. Merely because Mr Hunt’s evidence was not the subject of cross-examination, does not mean that an Arbitrator was obliged to accept it. An Arbitrator may reject evidence that has not been the subject of cross-examination, if, for example, it was inconsistent with other evidence which he accepted.
The rule in Browne v Dunn (1893) 6 R 67 did not prevent the Arbitrator from rejecting Mr Hunt’s evidence. This is because the documentary evidence upon which both parties relied was exchanged in advance of the hearing (Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]). Mr Hunt knew, or should have known, that his evidence was inconsistent with the documentary evidence of his complaints to his treating doctors. It was therefore not incumbent on Arrow to seek leave to cross-examine Mr Hunt (NSW Police Force v Winter [2011] NSWCA 330). The arbitration hearing took place in Tamworth, presumably to meet Mr Hunt’s convenience. He had every opportunity to seek leave to give evidence had he chosen to do so.
I reject Mr Hunt’s submission that the entry in the Tamworth Hospital notes following his attendance at the hospital on 14 April 2008 of “chronic pain” since 2007 support his contention that he was suffering ongoing thoracic and lumbar back pain. The history obtained on that occasion was of complaints of recent pain in the lower back (refer [58] of this decision). The finding that he was tender over the thoracic and lumbar spine on that occasion, in view of the fact that Mr Hunt was unable to recall the cause of his admission, other than that it occurred after a bout of heavy drinking, does not provide any probative evidence to link the finding of tenderness in the thoracic region of his back to either of the injuries upon which Mr Hunt relies.
Mr Hunt submits that the Arbitrator erred by failing to refer to the evidence of Dr Blue. That submission is not correct. The Arbitrator referred to Dr Blue’s report of 26 July 2008 at [21] of the Statement of Reasons. He stated that it was of no great assistance in that Dr Blue did not have the benefit of any radiological investigations when he examined Mr Hunt on 25 July 2011.
Whether Dr Blue’s opinion was a bare ‘ipse dixit’ as submitted does not advance this appeal. For the reasons given by the Arbitrator he did not place any weight on Dr Blue’s opinion. It was open to him to assess the weight to be given to Dr Blue’s evidence. His treatment of that evidence does not involve any error.
It is somewhat difficult to deal with Mr Hunt’s submission concerning the shifting evidentiary onus as the submission was not developed. In Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229, Deputy President Roche considered the circumstances in which the evidentiary onus shifts in proceedings in the Commission. Referring to Brown v Lewis [2006] NSWCA 87 (Lewis) he said at [54]:
“54. In Lewis, Mason P stated at [83], “the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake[1960] HCA 58; (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.” In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden[1965] 114 CLR 164 at 168 (‘Purkess’)). Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).”
Those authorities do not assist Mr Hunt. The Arbitrator rejected Mr Hunt’s evidence that he injured his thoracic spine in either of the two incidents upon which he relies. For reasons already stated, it is evident that the Arbitrator did not accept that Mr Hunt made out a prima facie case of injury to the thoracic spine as a result of either of the injuries pleaded. In those circumstances the onus of proof does not shift. Mr Hunt carries the ultimate onus of proof, which for the reasons given by the Arbitrator and which disclose no error, he failed to discharge.
For these reasons the Arbitrator’s conclusion that Mr Hunt suffered only a short term flare-up of a pre-existing constitutional condition of Scheuermann’s disease as result of the motor vehicle accident on 14 June 2007 was open on the evidence and discloses no error.

ORDERS

The Arbitrator’s determination of 12 September 2013 is confirmed.

COSTS

No order as to costs.

Judge Keating
President

26 November 2013

I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE