Inghams Enterprises Pty Limited v Belokoski

[2017] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15
APPELLANT:	Inghams Enterprises Pty Limited
RESPONDENT:	Dejan Belokoski
INSURER:	Self-insured
FILE NUMBER:	A2-4346/15
ARBITRATOR:	Ms Elizabeth Beilby
DATE OF ARBITRATOR’S DECISION:	10 October 2016
10 November 2016 (Amended Decision)
DATE OF APPEAL DECISION:	27 April 2017
SUBJECT MATTER OF DECISION:	Apprehended bias; credit findings; adequacy of reasons; fact finding and the weight of medical evidence: application of Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 and associated authorities; ‘injury’ findings: application of Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination dated 10 October 2016 (as amended) is confirmed.

INTRODUCTION

1. This is a claim by Dejan Belokoski (the respondent) for lump sum compensation, and a general order for the payment of expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), resulting from injury on 25 March 2009. Injury to the left upper extremity (shoulder) is not in issue. Inghams Enterprises Pty Limited (the appellant) disputes that the appellant suffered injury to his cervical spine in the incident, and disputes that there was a consequential condition of the right upper extremity.

2. The appellant appeals from a decision of an Arbitrator, in which the respondent succeeded on the disputed issues. The appeal does not succeed, for reasons which follow.

BACKGROUND

1. The respondent was employed by the appellant as a process worker from about 2001. He suffered injury on 25 March 2009 when lifting a 25 kilogram bag of marinade. His employment was terminated on 24 May 2012. He underwent C4/5 and C5/6 discectomy and fusion on 27 September 2012 (by Dr Hsu), and C3/4 decompression and fusion on 4 April 2014 (again by Dr Hsu). The respondent had periods when compensation was paid to him voluntarily, and periods when he worked selected duties with the appellant. The respondent disputed liability in a notice dated 7 June 2012, based upon medical evidence from Dr Stephen Potter, a rheumatologist it had qualified.

2. There were earlier proceedings between the parties. Matter no 14404/12 was discontinued on 10 March 2014. Matter no 3389/14 was discontinued on 25 September 2014. There was agreement at that time, on a ‘without admission’ basis, that the appellant would pay weekly compensation from 7 June 2012 to 31 December 2012, at the rate of $550 per week. The current proceedings pleaded a weekly claim from 31 December 2012 on a continuing basis. The respondent ultimately did not pursue this pleaded weekly claim.

3. The current proceedings were determined by Senior Arbitrator McDonald on
   23 December 2015, in the respondent’s favour. That decision was appealed. The President Keating DCJ, in a decision dated 7 June 2016 (Inghams Enterprises Pty Ltd v Belokoski [2016] NSWWCCPD 31) (the earlier Presidential decision), revoked that decision and remitted the claim for re-determination. His Honour’s decision contains a helpful summary of the procedural background and evidence up to that time.

4. On the remitter, the matter was listed for conciliation conference/arbitration hearing before Arbitrator Beilby on 18 August 2016. Mr Tanner of counsel appeared for the respondent, and Mr Stockley of counsel appeared for the appellant. No oral evidence was called, the matter was dealt with on the documentary material, and counsel addressed. The Arbitrator delivered a reserved decision dated 10 October 2016. She made findings in the respondent’s favour, in respect of the disputed injury to the cervical spine, and the consequential condition of the right upper extremity (shoulder). An amended decision was issued dated 10 November 2016. The amendment was pursuant to the ‘slip rule’, to correct a date at [51] of the Arbitrator’s reasons, substituting “2009” for “2012”.

THE ARBITRATOR’S DECISION

1. The Arbitrator said that the issues raised by the appellant were those identified in the earlier Presidential decision at [7], where his Honour noted that the appellant’s case was:

   “(a)   Mr Belokoski had only suffered a strain to his left trapezius muscle on 25 March 2009, from which he had recovered, but he did not injure his neck on that day;

   (b)     the contemporaneous medical records, and Mr Belokoski’s claim form, referred only to symptoms in the left trapezius muscle and there were no documented complaints of neck symptoms until much later, on 8 May 2009, to Dr Chester;

   (c)     Mr Belokoski had not disclosed the fact that he had neck symptoms in 2006 and 2007, or that he had an x-ray of his cervical spine on 24 July 2006, which showed degenerative changes at C5/6, and

   (d)     a number of the medical experts upon which Mr Belokoski relied either had incorrect histories of when the neck symptoms commenced and/or assumed (wrongly) that he injured his neck on 25 March 2009.”

2. The Arbitrator quoted the summary of the evidence set out in [17]-[46] of the earlier Presidential decision. The Arbitrator said that this “thoroughly described the medical evidence”. The Arbitrator then engaged in a review of the medical evidence, at [13]-[38] of her reasons.

3. The Arbitrator referred to the prior symptoms in 2006, noting the appellant’s submission that these were “significant”, involving “radiological investigation”, and symptoms in the left scapula and neck which “persisted for approximately three months”. She described this as “an accurate description of the evidence”. She noted the appellant’s submission that Dr Bodel and Dr Darwish were not appraised of “this clinical history”. Dr Bodel was aware of a single x-ray in 2006. She described the appellant’s submission as one that the respondent’s experts should have less weight accorded to their opinions, as they did not have a “full clinical history”.

4. The Arbitrator then referred to the appellant’s argument that there was “a late onset of pain with respect to the neck”. On the first attendance on Dr Chester there was no record of neck complaint (reasons at [18]). The Arbitrator referred to the consultations with Dr Lieng up to 30 March 2009, and with Dr Chester thereafter. She said “No complaint is recorded in relation to the cervical spine until 20 April 2009” (reasons at [22]).

5. The Arbitrator referred to some “diary notes” on which the respondent relied. She referred to a “complaint made by Mr Stockley”, and to variations in the handwriting appearing in the diary notes. She said that she was not satisfied that the provenance of these documents was satisfied, and she “did not intend to rely on those notes” (reasons at [24]). The Arbitrator at [23] said that she did not regard a delay in neck complaints of “at least three weeks” as “so significant”. She referred to three factors in this regard.

6. The first was that when the respondent complained to Dr Lieng of “trapezius muscle spasm”, the doctor observed “restricted neck movement”. The Arbitrator noted that:

   “ … the neck and trapezius muscle are extremely close in proximity, it would be common that the symptomology experienced in one body part could be confused with the other”. (reasons at [25])

7. The Arbitrator also observed that the “alleged failure to complain… was over a short period of time, which is less than a month after the incident”. She additionally referred to a line of appellate authority which includes Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, Nominal Defendant v Clancy [2007] NSWCA 349, King v Collins [2007] NSWCA 122 and Mastronardi v State of New South Wales [2009] NSWCA 270. The notes of treating doctors “rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient” (reasons at [27]).

8. The Arbitrator then considered the appellant’s medical case. She referred to Dr Potter’s opinion that the relevant incident “gave rise to a simple strain pattern and left sided neck and arm pain”. She considered this diagnosis was inconsistent with the failure of the respondent’s symptoms to “resolve over time”, and “inconsistent with findings on MRI investigation indicating disc herniation at two levels” (reasons at [28]). The Arbitrator referred to the view of Dr Edwards, that carrying a 20 kilogram bag on the left shoulder would not be likely to cause injury. She said that the “exchange of information” at the examination was “of limited use”, and only a “limited examination” took place (reasons at [29]).

9. The Arbitrator noted that the respondent had a cervical spine x-ray on 28 April 2009, this was “just over a month” after the injurious event, and there was clear complaint about the cervical spine by then. By 8 May 2009 Dr Chester changed the diagnosis to “cervical spine disc lesion”. The Arbitrator said that the respondent “complained about neck pain shortly after the claimed incident”. It was only after Dr Chester was consulted that the “neck was looked at as a separate injury”. She said this “would not be unusual given the proximity of the injuries” (reasons at [30] and [34]).

10. Dr Al-Khawaja, a treating neurosurgeon, in his report dated 4 June 2009 referred to a history of neck pain. He accepted the mechanism of injury, lifting heavy objects. Dr Tantalis, a treating orthopaedic surgeon, accepted the mechanism of injury in his report dated 27 March 2013. The Arbitrator thought that these treating doctors “would be in the best position to be able to provide an opinion on this issue”, given their “more extensive treatment” of the respondent (reasons at [32]).

11. The Arbitrator acknowledged, at [31], that Dr Al-Khawaja did not have a history of the symptoms in 2006. She said it would have been of some assistance if he had had “the past history of complaint in full”. She acknowledged that Dr Bodel was aware of the x-ray in 2006, but not the history of the “complaints over some three months”. The Arbitrator said that the respondent’s “case would have been stronger had the previous symptomatology been addressed”. On the other hand, she said there was a “lengthy hiatus in complaint between 2006 to 2009”, and the respondent returned to what “appears to have been heavy duties” over that period (reasons at [35]-[36]). She said that Dr Al-Khawaja, Dr Hsu and Dr Bodel accepted the mechanism of injury, that “the complained event could cause a cervical injury”. The Arbitrator concluded that “more significant weight should be afforded to the treating experts” (reasons at [37-[38]).

12. On the topic of ‘injury’ the Arbitrator referred to Castro v State Transit Authority (NSW) (2000) 19 NSWCCR 496 and Lyons v Master Builders Association (2003) 25 NSWCCR 422. She said that it was necessary that ‘injury’ involve evidence of a “sudden or identifiable pathological change”, and that she needed to be satisfied that there was “an event or events” that caused it. She quoted from Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, in which Kirby P at 463 described the test of causation in workers compensation matters (reasons at [40]-[41]).

13. The Arbitrator referred to the lengthy period during which the respondent was asymptomatic prior to the pleaded injury, and his complaints of cervical symptoms within four weeks of that event. She noted that an MRI scan was clearly indicative of pathology, the respondent required cervical surgery, and the treating medical experts accepted the mechanism of injury. She said that she was satisfied the respondent had suffered injury within the meaning of s 4 of the 1987 Act (reasons at [42]). She said that the events in 2009 precipitated a “significant injury’ which ultimately required surgery (reasons at [50]). 

14. The Arbitrator referred to Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 at [29], whether s 9A of the 1987 Act is satisfied is a question of fact and degree, to be decided after a consideration of all the evidence, and is a more stringent test than that imposed by s 4 of the 1987 Act. She referred to the various matters raised in s 9A(2). She referred to Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75, and Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626. She said that the ‘employment concerned’ for the purposes of s 9A was what the respondent was doing at the time of his injury, his normal work duties. She was satisfied that the employment was a substantial contributing factor to the injury.

15. The Arbitrator at [4] of her reasons said that the parties agreed that if the respondent succeeded on the allegation of injury to the cervical spine, “it would follow that there was also a consequential injury to the right upper extremity”. The matter was remitted to the Registrar for referral to an Approved Medical Specialist, for assessment of the degree of permanent impairment of the cervical spine and both upper extremities (shoulders). There was a general order for payment of expenses pursuant to s 60 of the 1987 Act.

RECUSAL APPLICATION

The Factual Background

1. The matter was allocated to me for determination of the Presidential appeal, on 14 March 2017, and the parties were advised of this at that time.

2. On perusal of the file, the Application to Resolve a Dispute included a Certificate of Determination – Consent Orders dated 25 September 2014, in matter no 3389/14 (the prior proceedings), issued by me in my then capacity as a Senior Arbitrator. A conciliation conference/arbitration hearing had been held on that date. The prior proceedings were discontinued by consent. An associated document indicated that the appellant, “[w]ithout admission of any liability” was to make voluntary payments of weekly compensation at $550 per week from 7 June 2012 to 31 December 2012.

3. The Commission file in that matter indicated that I additionally conducted a telephone conference on 11 August 2014, at which I dealt with two procedural applications. On an application by the appellant for leave to issue Directions for Production of documents, I granted leave in respect of six of those sought, and refused leave in respect of three. On 12 August 2014 I issued a Direction, giving leave to the respondent to serve a Notice for Production of wages material, and directing the appellant to comply with that Notice.

4. A Direction to the parties was issued on 15 March 2017, noting my involvement in the earlier proceedings, and directing that if either party objected to my continuing involvement in the circumstances, such party should, prior to 4.00 pm on 20 March 2017, inform my associate, “including the basis of any such objection”. The respondent’s solicitor responded on

   
   

   15 March 2015, advising that the respondent had no objection to my determining the matter. The appellant’s solicitor responded by email on 20 March 2017, saying it was the appellant’s view that I “should not have involvement in the appeal”:

   “…in view of his involvement in the previous proceedings as Senior Arbitrator and comments made at that time.”

5. My associate forwarded an email to the parties’ solicitors on 20 March 2017. It noted that the only orders made by me in the earlier proceedings appeared to be procedural. It noted the basis of the consent resolution of the earlier proceedings, on 25 September 2014. It noted that I had no recollection of the earlier proceedings. It stated that I had formed “an initial, tentative view that [my] withdrawal from the current Presidential appeal is not appropriate”. It stated that if any party sought to make an application for recusal, that party should inform my associate by 21 March 2017, and a telephone conference would be appointed to deal with any such application. It said that prior to any such telephone conference, the parties could “lodge evidence relevant to any such application”.

6. On 21 March 2017 the appellant advised that it sought to make a recusal application. The matter was listed for telephone conference on 31 March 2017 for this purpose. The parties were directed to lodge and serve any documents on which they intended to rely, prior to the close of business on 24 March 2017. No material was lodged by either party. At the telephone conference Mr Macken, solicitor, appeared for the appellant, and Mr Dougall, solicitor, appeared for the respondent. The respondent himself attended by telephone.

7. Mr Macken said the application was made on the basis of ‘apprehended bias’. He referred to the following:

   (a)     Leave for some of the Direction for Production Orders, sought by the appellant in the earlier proceedings, had not been granted.

   (b)     The order for leave to serve a Notice for Production for wages material, and compliance with that Notice, was opposed by the appellant.

   (c)     The appellant’s solicitor said that, when reporting to his client about the telephone conference of 11 August 2014, he had referred to a statement by me that there was no real issue regarding ‘injury’.

8. Mr Macken said that the two orders referred to at (a) and (b) of the previous paragraph were contrary to the respondent’s position. He submitted that ‘injury’ remained in issue in the current proceedings.

9. Mr Dougall opposed the recusal application. He said it had been the position of the respondent that there was no real issue regarding ‘injury’. He had no recollection or file note, going to the accuracy or otherwise of what was put by the appellant. I indicated that I had no recollection, and there should be an evidentiary basis for the application. On enquiry, solicitors for both parties said that the evidence going to ‘injury’ was different now, to that at the time of the telephone conference in the earlier proceedings. There were further medical reports and clinical records. I note that, since 2014, the respondent qualified medical evidence from Dr Bodel (reports dated 7 January 2015 and 25 February 2015), and the appellant from Dr Edwards (two reports dated 20 April 2015). This evidence, on both sides, went to the ‘injury’ issue.

10. I suggested to the parties that the relevant test was that in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner). Neither party suggested to the contrary, although Mr Macken referred also to Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 (Livesey). I ultimately indicated that, taking the appellant’s case at its highest (that is, assuming the existence of evidence consistent with what Mr Macken said occurred at the telephone conference in the earlier proceedings) it was not appropriate that I disqualify myself. I indicated that I would include reasons for this conclusion, in my decision in the matter.

Some Principles

1. The appellant refers to Livesey. The High Court in that case at [8] said:

   “In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters ‘of degree and particular circumstances may strike different minds in different ways’ (per Aickin J. in Shaw (1980) 55 ALJR, at p 16 ).”

2. In the same case at [18] their Honours said:

   “…each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.”

1. In Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 (Nicholls) the plurality at [31] said:

   “It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.”

2. The “series of decisions” referred to in the above passage included both Ebner and Livesey. Their Honours additionally, at [63], said:

   “In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that ‘[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated’. So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.”

3. In Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Mason J at [5] said:

   “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

4. Similar views were expressed in Livesey at [8], and in Ebner at [20].

5. In Pollard v Wilson [2010] NSWCA 68 (Pollard) McClellan CJ at CL (Macfarlan and Young JJA agreeing) at [93] said:

   “The test which must be applied in Australia to determine whether a judge is disqualified for the appearance of bias (the apprehension of bias principle) is whether a ‘fair-minded lay observer’ might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (‘Johnson’) and the authorities cited therein. The ‘fair minded lay observer’ is not completely unaware of the trial process. He or she will be aware that modern judges in the interests of effective case management may intervene and may engage in robust dialogue with the bar: Johnson at [13], [46]. The observer is also assumed to understand that when, during the course of proceedings, a judge expresses views which suggest that he or she may be inclined to a particular view of any issue, judges are not taken, on that account alone, to have prejudged any outcome: Johnson at [13], [46].”

6. In Duncan v Ipp [2013] NSWCA 189; 304 ALR 359 (Duncan) a number of the principles were reviewed. Bathurst CJ at [151] said:

   “It is also clear from the authorities that the fact the court or other decision-maker has formed or expressed tentative views on the issue in question, would not, at least of itself, give rise to the possibility of bias in the mind of a fair-minded observer: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, 576; Johnson v Johnson supra at [13]; Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [31]- [33]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [111]- [112]. Although the remarks in those cases were made in respect of allegations of bias in relation to judicial tribunals, they apply equally to bodies carrying out non-judicial functions. That was made clear in Ex parte Angliss Group supra in the following terms at 553:

   ‘It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.’”

7. In the context of the Commission, the “fair minded lay observer” would be taken to be aware that a telephone conference is a preliminary step in proceedings, and that the objectives of the telephone conference (consistent with the Commission’s Guideline for the Practice of the Conciliation/Arbitration Process) include exploring resolution of the dispute, and ensuring that the matter is ready for the next phase: BHP Billiton Ltd v Eastham [2013] NSWWCCPD 34; 14 DDCR 393 at [69].

Consideration

1. The appellant did not put on any evidence, in support of its application. In dealing with the application, I do so on the basis of the appellant’s case at its highest, that is assuming that the appellant could put on evidence, consistent with what Mr Macken said he had advised his client, about what was said in the prior proceedings.

2. The statement attributed to me was made in the course of a telephone conference. I was carrying out the functions of an arbitrator. An arbitrator has “an overall and continuing duty” to use his or her “best endeavours to bring the parties to a settlement acceptable to all of them”: s 355(1) of the 1998 Act, Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng) at [25]. The nature of that duty makes it “obligatory that he form a view about the issues”: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) at [104]. McColl JA in Edmonds said it would be “remarkable” if an arbitrator did not have a view, and would “most probably amount to a failure to discharge his functions, if he had not” (at [103]). The Commission’s legislative framework, and the nature of its jurisdiction, were discussed at length by her Honour at [55]-[74] and [86]-[96] respectively.

3. The earlier proceedings clearly did not resolve at the telephone conference, as the matter was then listed for conciliation/arbitration. The Workers Compensation Commission Guidelines on the Practice of the Conciliation Arbitration Process in the Workers Compensation Commission state:

   “During the telephone conference, the parties explore settlement with the assistance of the Arbitrator, and if possible reach agreement. If agreement is not reached, arrangements will be made for determination based on the documents or the matter will be scheduled for a conciliation/arbitration.”

4. Those Guidelines provide that at the telephone conference the arbitrator will “[a]ssist discussions about resolution”, including “encourag[ing] parties to review the strengths and weaknesses of their positions based on the evidence”.

5. The statement at the telephone conference was made without hearing final submissions from the parties, including on the issue of ‘injury’. If the prior proceedings had proceeded to an arbitration hearing, the parties would have an entitlement to be heard (see Edmonds at [91]). The parties may have sought to rely on further evidence by leave. In the prior proceedings, such a statement would be unlikely to form a basis for recusal, and it is not suggested that any recusal application was made in those proceedings. If an arbitrator, after using his or her best endeavours to bring the parties to settlement, then determines a matter, no objection is to be taken on this basis: s 355(2) of the 1998 Act.

6. The view was not expressed in a decision. It is quite unlikely (and evidence does not suggest) that it was other than a “tentative view”, expressed during a telephone conference. It would not “give rise to the possibility of bias in the mind of a fair-minded observer” (Duncan at [151]). For this reason the recusal application should be refused.

7. If, contrary to the above, the statement were identified as something that might indicate the possibility of pre-judgment, it would remain necessary to consider the second step in Ebner, “an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits”. The statement was made (on the appellant’s version) on 11 August 2014. I was informed by the parties that the evidence is no longer the same, there are further medical reports and clinical notes. An additional doctor has been qualified on each side of the record (Dr Bodel and Dr Edwards), both of whom comment on ‘injury’. I will not be dealing with the matter as a first instance decision maker, rather I will be determining an appeal in accordance with s 352(5) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), limited to the identification and correction of error. There has been no “articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making”. In my view, such a connection could not be made out, having regard to the circumstances in which the relevant statement was made, and the decision making task I am required to carry out in the current proceedings.

8. For the above reasons, the appellant’s recusal application is refused.

ISSUES IN DISPUTE

1. The grounds of appeal assert that the Arbitrator erred in:

   (a)     Failing to make findings regarding the respondent’s credit.

   (b)     Displaying apprehended bias. This ground refers to:

   (i)not properly engaging with the evidence;

   (ii)constructive failure to exercise jurisdiction;

   (iii)not properly engaging with the appellant’s submissions, and

   (iv)not giving adequate or sufficient reasons.

   (c)     Failing to give adequate or sufficient reasons.

   (d)     Preferring the opinions of the respondent’s medical experts to those of the appellant.

   (e)     Failing to determine the nature of any injury to the neck.

ON THE PAPERS

1. 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.”

2. The appellant submits that the matter should not be decided on the papers, and there should be an oral hearing, for the following reasons:

   (a)     An oral hearing was held in the earlier Presidential appeal.

   (b)     Transcript was not available at the time the current appeal was lodged. The appellant seeks to rely on submissions made at both arbitration hearings, and this is best done by way of oral hearing.

   (c)     If the appeal succeeds, questions about the appropriate orders disposing of it (re-determination by the Presidential member or remitter to another Arbitrator) are best dealt with by way of oral hearing.

3. The respondent submits that the appeal can be dealt with on the papers, without an oral hearing.

4. The first of the submissions at [51] above is of no force. There is no logical reason why the course adopted in the earlier Presidential appeal would necessarily be appropriate in the current appeal.

5. The appellant’s Application to Appeal was registered on 25 October 2016. The Commission wrote to the parties’ solicitors on 26 October 2016 enclosing a copy of the transcript of the Arbitration hearing before Arbitrator Beilby. As is the usual practice, the covering letter invited the parties, if they had been unable to complete their grounds or submissions due to the absence of transcript, to file supplementary submissions, in this instance on or before 23 November 2016. The appellant has lodged no such supplementary submissions. There has been no impediment to the appellant making such submissions as it wished. The appellant puts no basis put for the assertion that “[t]ranscript is best addressed in an oral hearing”. The second of the submissions at [51] above is not persuasive.

6. The form used in making a Presidential appeal from an Arbitrator is Form 9. At ‘2.10’ it specifically asks the appellant whether the grounds and submissions precisely state “the decision sought to be substituted for the original decision or alternatively the relief sought”. This is consistent with the requirements set out in Practice Direction No 6 dealing with “Grounds of appeal”. The appellant’s submissions, dealing with “Proposed Orders”, submit there should be an award in the appellant’s favour, or alternatively the matter should be remitted to a different Arbitrator for re-determination. No specific argument is advanced regarding why such issues are “best dealt with by way of oral hearing”.

7. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

2. The only orders made by the Arbitrator were a general order for the payment of s 60 expenses (to which no specific monetary value was attached) and an order referring the matter for assessment of whole person impairment pursuant to s 321 of the 1998 Act. No specific amount of compensation was awarded. A sum of $66,000 was claimed in the Application to Resolve a Dispute, by way of lump sum compensation pursuant to s 66 of the 1987 Act.

3. Roche ADP (as he then was) in Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135 at [31] said:

   “The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.”

4. In the same decision the Acting Deputy President applied Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, and said:

   “It is possible to appeal against an interlocutory decision where no monetary compensation has been awarded but only where the decision or order has a real capacity to put the award of ‘compensation’ in issue in the appeal.” (at [32])

5. The subject of this appeal has a real capacity to put the sum claimed in the Application in issue. The concession made by the respondent, that there was “no issue with respect to the monetary threshold”, was appropriately made.

WAS THE DECISION INTERLOCUTORY?

1. Section 352(3A) of the 1998 Act provides:

   “There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”

2. The appellant submits that the decision is not interlocutory, as “it finally determines the rights of the parties relevant to the issue of injury”. Pragmatically, the appellant at [14] of its submissions then goes on to submit:

   “The appellant respectfully adopts the reasons in paragraphs 13-16 of Keating P in the Prior Appeal in support of leave being granted in this appeal.”

3. The respondent submits that “[t]he Arbitrator’s orders are interlocutory and the Appellant will require leave of the Commission to proceed with the appeal.” The respondent does not make submissions opposing the grant of leave.

4. In Licul v Corney [1976] HCA 6; 50 ALJR 439 Gibbs J, dealing with the distinction between final and interlocutory judgments, concluded “… the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (at [11]). This test has been frequently applied in the Commission (see for example P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12).

5. The orders the subject of the earlier Presidential appeal were in the same form as those the subject of the current appeal. Keating P characterised such orders as ‘interlocutory’, in the earlier Presidential decision at [14].

6. His Honour, at [15]-[16] of that decision, gave reasons why in the circumstances it was desirable, for the proper and effective determination of the dispute, that leave be granted. I respectfully agree with his Honour’s reasons at [14]-[16]. Leave is granted pursuant to s 352(3A) of the 1998 Act.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):

   “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.”

2. The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):

   “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

   Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

GROUND NO 1 – FAILURE TO MAKE CREDIT FINDINGS

The Appellant’s Submissions

1. The appellant refers to the respondent’s complaint of left shoulder and neck symptoms “over a number of months in 2006 and into 2007 to his GP Dr Chester”. It submits the respondent “either did not disclose or denied” these symptoms to doctors, and this “goes to the credit of the respondent”.

2. The appellant refers to the Arbitrator’s reasons at [17]. The Arbitrator said this defect, in the clinical history recorded by the respondent’s medical experts, has the effect that “less weight should be accorded to their opinions”. The appellant submits that this statement of principle involves the Arbitrator incorrectly summarising and limiting the appellant’s submissions on the prior complaints.

3. The appellant submits that the “respondent’s credit is at the forefront of the appellant’s defence”. It says it has “consistently submitted that the respondent’s evidence, both to the doctors and to the Commission, should not be trusted”. It refers to “inconsistent histories…about what actually occurred on 25.03.09”, and about the symptoms “immediately following this incident”.

4. The appellant refers to a failure by the respondent to explain why the prior symptoms were not disclosed, or doctors were not subsequently “furnished with the full clinical picture”.

5. The appellant also refers to diary notes that were attached to the Application to Resolve a Dispute (the Application). At the arbitration hearing on 18 August 2016, the respondent’s counsel sought to put into evidence, as a late document, a supplementary statement of the respondent dated 20 June 2016 (18.8.16 T3.32-9.23). That document referred to handwritten diary entries, which were attached to the Application, and also to the supplementary statement. It said that such notes were “contemporaneous”, and “made on the date listed”. After some debate, the Arbitrator admitted the supplementary statement, on the basis that the appellant’s counsel was given leave to cross-examine the respondent in relation to it (18.8.16 T9.21-3). The appellant’s counsel did not wish to cross-examine (18.8.16 T10.6-21).

6. The Arbitrator referred to the diary notes in her reasons at [24], saying that she did “not intend to rely on those notes” (see [11] above).

1. The appellant submits that the Arbitrator, in adopting this approach, “did not accept the respondent’s evidence”, and “should have made findings in respect of the respondent’s credit”.

2. The appellant at [24] of its submissions puts the following:

   “The appellant submits that the learned arbitrator has erred in fact and law in failing to assess the credit of the respondent in circumstances where the respondent’s credit was directly impugned by the appellant and goes to the heart of what needs to be determined in this matter; ie. Whether the respondent has discharged the onus of proving that he suffered an injury to his neck on 23.03.09 and whether such injury caused the multilevel disc protrusions.”

3. The appellant’s submissions under this ground also refer to the extent to which the opinions of doctors, in the respondent’s case, were undermined by any failure to deal with the prior symptoms (see [22] of those submissions). This topic is best dealt with as part of Ground No 4.

The Respondent’s Submissions

1. The Arbitrator at [35] referred to the “previous symptomatology in 2006”, and that this was not fully within the provenance of the respondent’s medical experts. The Arbitrator noted that there was “a lengthy hiatus in complaint between 2006 and 2009, and that the respondent returned to what appeared to be “heavy duties” over that time. The respondent submits:

   “It was certainly open to the Arbitrator to consider the prior symptoms to be of diminished relevance, and to treat the appellant’s submission as having doubtful merit.”

2. The respondent submits that the respondent may have forgotten about the “problems in 2006”, or may have “considered them to be irrelevant”. There is no evidence about his reasons for not mentioning those symptoms, as he was “not cross-examined by the appellant”. The Arbitrator evaluated the evidence in the context of “the absence of symptoms for a substantial period thereafter and the fact that the worker was able to perform ‘heavy duties’”.

3. The respondent submits that the appellant’s submissions about the diary notes are “misconceived”. He describes the Arbitrator’s findings regarding these documents as “neutral”. Features of the documents “raised questions” and she determined that she would not rely on them. The respondent’s submissions at [10] say:

   “The appellant’s argument on the ‘credit’ ground of appeal fails to appreciate that an adverse credit finding in relation to an aspect of a party’s evidence does not thereby result in the determination of the matter in favour of the other party. The decision maker will evaluate all of the evidence, including matters that are not in dispute, in order to arrive at an all-embracing determination. In the current matter it is clear that the Arbitrator engaged in an objective evaluation of all relevant matters.”

The Diary Notes

1. In argument going to admission of the supplementary statement dealing with the diary notes, the appellant’s counsel put to the Arbitrator that the notes were “interlineated, they’re in different handwriting, they’re incomplete or they would appear to be, because they run out in 2010” (18.8.16 T7.11-3). The Arbitrator said the appellant had “understandably some reservations and some questions” (18.8.16 T8.17-8), and said she would admit the supplementary statement, but grant leave for the appellant to cross-examine if it wished (which it did not).

2. There was limited reference to the diary notes in the parties’ submissions. The respondent’s counsel referred to the initial entry (said to be 25 March 2009) not containing a reference to neck injury, which he submitted was supportive of the “v[e]racity or truthfulness of those records”. He addressed on the second entry, 26 March 2009, which referred to “severe pain in neck” (18.8.16 T11.22-12.21). The appellant’s counsel referred to an absence of ‘neck’ references in the entries between March 2009 and 22 June 2010 (18.8.16 T26.29-27.16). In reply, the respondent’s counsel submitted:

   “My friend hasn’t suggested to you that those notes are a fabrication and are designed simply retrospectively to the applicant’s case.” (18.8.16 T37.3-5)   

3. The Arbitrator, at [24] of her reasons, described the diary notes as “unusual in their format”. The handwriting was “different on varying occasions”, she was unaware of “who has actually written each entry”. She said she was “not satisfied that their providence [sic, provenance] has been satisfied”. She said that she did not intend to rely on them.

4. The appellant submits that the Arbitrator, in the approach she adopted at [24] of her reasons, “implicitly did not accept the respondent’s evidence that these notes were his contemporaneous record of events following the incident”. This misstates the Arbitrator’s reasons. The appellant did not run a case that the way in which the diary notes were constructed was in some way fabricated, or otherwise damaging to the respondent’s credit. The Arbitrator’s reasons for not relying on them similarly involved no such finding. The respondent’s statement dated 20 June 2016 (dealing with the diary notes) did not say that the notes were written by him. The appellant’s submission on this point is not reasonably available on the evidence, and is also inconsistent with how the appellant conducted the case before the Arbitrator.

5. I do not accept the submission that the Arbitrator’s failure to rely on the diary notes required a finding in respect of the respondent’s credit.

The Respondent’s Statement

1. The respondent’s earliest statement attached to the Application is dated 23 August 2012. The symptoms in 2006 and 2007 were referred to in that statement at [20]:

   “I note by way of background that I have previously consulted a doctor with respect to my neck. This was by [sic] general practitioner Dr Chester and I consulted with him in July 2006 because of pain in the neck and the area of my left shoulder to my neck. I was referred for an x-ray scan and subsequently for physiotherapy. I was provided with exercises. I do not recall losing any time off work. I understand that records also reveal that I consulted with my general practitioner Dr Chester in about 09/2007 because of similar symptoms. The symptoms I had at that time felt like a muscular ache and pain. They were different from the symptoms that I experienced on and from 25 March 2009.”

2. The statement of the respondent, dated 23 August 2012, was served by the respondent’s solicitors on the appellant, by letters dated 15 September 2012 and 30 June 2015. Thus the respondent, through his solicitors, advised the appellant of the past history at least by the time of the letter dated 15 September 2012.

The Medical Histories

1. Dr Chester, who treated the respondent at the time of the 2006 symptoms, referred the respondent to Dr Al-Khawaja. The initial letter of referral dated 8 May 2009 did not refer to the symptoms in 2006. Dr Al-Khawaja’s multiple serial reports are silent on whether there was any history of prior symptoms.   

2. Dr Lieng, apparently acting as an ‘Injury Management Consultant’, reported to the appellant following an examination on 16 July 2009. The history recorded in that report was that the respondent denied “any previous problems or injuries to the neck”. Dr Roberts, a psychiatrist qualified by the appellant, reported on 4 November 2010. Dr Roberts said that the respondent “denied any prior physical health problems”. Dr Potter, a rheumatologist qualified by the appellant, reported on 16 May 2012. He reported a history of “no prior complaints”, and “[h]e was unaware of any neck injury or cervical disc pathology pre-incident”.

3. Dr ALG Smith, an orthopaedic surgeon qualified by the appellant, reported on
   15 November 2012, following a consultation that day. Dr Smith did not specifically refer to taking a history regarding prior symptoms. He did say “[t]here is no other injury apart from 29 March 2009. He dates everything from that.”

4. The respondent’s then solicitors, Messrs White Barnes, wrote to Dr Hsu (the operating neurosurgeon) on 19 December 2012, requesting a report. That letter included the following:

   “By way of background we are instructed by our client that he has not had any prior injuries to his neck however he did consult with a doctor in or about 2006 when he was experiencing some left trapezius shoulder pain.

   We are instructed that our client’s employment duties have required him to lift and carry 25 kg bags often in excess of 150 bags per day as a regular part of his employment duties. Notwithstanding this we are instructed by our client that he has not had any ongoing problems with his neck subsequent to his complaints in 2006 and the specific injury on 25 March 2009.”

5. The respondent’s solicitors were attempting, in late 2012, to obtain a medical report from the operating neurosurgeon, which proceeded on a history including that of previous symptoms in 2006, involving the left trapezius.

6. Dr Darwish, a neurosurgeon reported to the respondent’s solicitors on 18 October 2013. His report is silent regarding the presence of neck or shoulder symptoms prior to 25 March 2009.

7. Dr Bodel, an orthopaedic surgeon, examined the respondent at the request of his solicitors, and reported on 7 January 2015. By way of past medical history, Dr Bodel reported that the respondent “has been previously quite well and not being treated for other illnesses”. Dr Bodel furnished a supplementary report dated 25 February 2015. It dealt with the x-ray report dated 24 July 2006. Dr Bodel described the report as demonstrating inter alia “minor degenerative change at the C5/6 level”. He said the abnormalities at C5/6 were “not inconsistent with a person of that age”. He said it was probable “that this single x-ray, with no other reference to complaints or treatment at that time, is an incidental abnormality which is not really contributing to his overall level of impairment”.

8. Dr Edwards, a general surgeon qualified on the appellant’s behalf, reported on 20 April 2015. He referred to a “medical file” which he said included the report of an x-ray of the respondent’s cervical spine carried out on 24 July 2006. He noted the report was carried out because of “left trapezius shoulder pain”, and said it involved “pain going from his neck to his left shoulder, i.e. it appears to be the same symptoms as he has reported occurring in 2009”.  

Consideration 

1. It was common ground at the arbitration hearing on remitter, that there was evidence of neck and left shoulder complaint in 2006, and that a number of doctors did not record a history of this. The appellant submits that it “has consistently submitted that the respondent’s evidence, both to the doctors and to the Commission, should not be trusted” (submissions at [21]). It submits that “the respondent’s credit was challenged and put in issue by the appellant during the hearing”; it refers to “non-disclosure and denial of these significant prior symptoms and treatment” (submissions at [19]). The appellant’s submissions include no specific references to the passages in the transcript on which it relies.

2. The appellant’s counsel, at the arbitration hearing, made detailed submissions going to the symptoms in about 2006, and the symptoms following the incident on 25 March 2009 (see 18.8.16 T20.19-21.25 for example). He referred to deficiencies in the history on which Dr Bodel based his opinion, when compared with Dr Chester’s notes from 2006. He submitted that the respondent acknowledged the 2006 symptoms in his statement, but did not report them to Dr Bodel or Dr Darwish (18.8.16 T21.28-31). He said “[t]he applicant’s commentators haven’t been provided with the full clinical picture” (18.8.16 T22.1-2). He submitted that Dr Bodel and Dr Darwish did not have “access to all of those notes, nor to the histories that they reveal” (18.8.16 T24.28-31).

3. The appellant’s counsel referred to variations in how the incident on 25 March 2009 was described by different doctors (18.8.16 T25.3-34). He ultimately submitted:

   “…support for the notion that the events of 25 March caused cervical injury, can only be found, in my submission in the opinions of Dr Bodel and Dr Darwish and my primary submission is that each of those opinions is diminished by the lack of an accurate history of a pre-morbid, or the pre-injury symptoms pathology and investigations” (18.8.16 T25.34-26.6).

4. The appellant’s counsel went on to refer to the views of Dr Potter, in the appellant’s case. He referred to Dr Potter’s history that the respondent “was unaware of any neck injury or cervical pathology pre-incident” (a history the appellant’s counsel said “may literally be true”), and to Dr Potter’s opinion. He submitted that “the applicant would fail given the frailty of his medical case he presents” (18.8.16 T29.13-30.5). The appellant’s counsel also addressed on whether the case on causation relating to the respondent’s right shoulder was proved (18.8.16 T30.12-31.1) Finally, the appellant’s counsel referred to the submissions made on the appellant’s behalf (by a different counsel and before a different arbitrator) on 26 October 2015 and 23 November 2015 (the original arbitration hearing). Without referring to any specific part of these submissions, he said “we do ask you to take in to account what has previously been put on behalf of the respondent” (18.8.16 T31.15-16).

5. The appellant, in Ground No 1, submits that the Arbitrator should have addressed, and made findings in respect of, the respondent’s credit. The appropriate credit findings are not specified. The appellant did not, in running the case on 18 August 2016, make specific submissions that the respondent was being untruthful, or that he should be disbelieved, or that some particular credit findings should be made. The careful submissions made on the appellant’s behalf went to inconsistencies between objectively proved facts (predominantly from medical notes) and the histories on which medical opinion was based, particularly that of Dr Bodel and Dr Darwish. The extent of the correlation, between proven facts and the assumptions on which medical opinion is based, goes to the weight to be afforded to the opinion: Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell) at [19], Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock) at [82]-[83], Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [64] (Makita), Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric) at 509B-510B.

6. The Arbitrator correctly understood this as the basis of the appellant’s submission on the medical evidence (her reasons at [17]). The appellant’s submission that this involved the Arbitrator “incorrectly summarising and limiting the appellant’s submissions on the prior complaints” is wrong, and is inconsistent with how the case was argued by the appellant on 18 August 2016.

7. The appellant’s previous counsel, at the original arbitration hearing on 26 October 2015 and 23 November 2015, also made submissions, on the adequacy of the histories on which the respondent’s medical case was based, and the symptoms in about 2006. He submitted that the appellant had not “disclosed to any doctor the fact that he had these problems” (23.11.15 T27.32-28.1). He addressed in some detail on the entries in Dr Chester’s clinical notes from 22 July 2006 to 6 October 2006 (23.11.15 T30.22-33.4). He referred to the denial by the respondent of prior health or neck problems, to Dr Bodel, Dr Roberts (a psychiatrist the appellant had qualified), Dr Potter and Dr Smith. He submitted in relation to these histories:

   “Now, whether it’s been deliberately withheld or not, volunteered or just forgotten about, he has not informed anybody positively about his prior problem,” (23.11.15 T37.32-4)

8. The appellant’s counsel submitted that Dr Edwards was the only doctor to intelligently comment on the prior symptoms in 2006. He submitted that by three months after 25 March 2009, the respondent told doctors that “immediately following the injury he had neck pain”. He submitted that “the applicant can’t prove his case”, “can’t discharge the onus that this one incident has caused multi-level disc protrusions” (23.11.15 T38.25-39.39.4). The appellant’s counsel submitted on the medical evidence, that the radiological evidence of disc pathology showed changes that were “old”, and “consistent with a disc disease at three levels” (23.11.15 T39.6-32). He submitted that the respondent should fail.

9. The appellant’s counsel concluded his submissions:

   “Sorry, sorry, sorry.  My solicitor reminds me and I’ll just make this point.  It may have been made, that it’s not as if the applicant would’ve just generally forgotten.  It’s a submission to be made that the applicant has gone to see a GP in 2006 on one occasion complaining of some mild pain in his neck or his left shoulder and then that was the end of it.  It went on for months and, indeed, radiological investigations were carried out and, in my respectful submission, people don’t forget about that in the context of an injury that is to exactly the same body part.” (23.11.15 T40.12-22)

10. The appellant issued a notice dated 7 June 2012, pursuant to s 54 of the 1987 Act, ceasing the respondent’s payments of weekly compensation effective from 19 July 2012. The matters disputed, and reasons given, in that notice did not include any reference to the respondent’s credit; the notice primarily relied on the opinion of Dr Potter. The appellant issued multiple notices declining liability pursuant to s 74 of the 1998 Act, and associated notices declining applications for review. The material includes notices dated 30 November 2012, 2 April 2014, 28 April 2015 and 1 July 2015. None of these referred to the respondent’s credit.

11. The primary thrust of the appellant’ case at arbitration hearing was similar on both occasions. Submissions went to the respondent’s symptoms in about 2006, and the symptoms following the incident on 25 March 2009, by reference to clinical notes from treating general practitioners. It was submitted inter alia that discrepancies in this regard deprived the respondent’s medical case of weight. It was submitted that the appellant’s medical case should be preferred.

12. The earlier Presidential decision recorded that the absence of a history, to various doctors, of the 2006 symptoms, was raised as an issue in that appeal (see that decision at [65(g)]-[65(h)]. At [65(g)] it is stated that the appellant alleged error by the Senior Arbitrator, in the earlier arbitral decision, in failing to draw “any adverse inference” from the respondent’s “failure to report previous problems to the doctors”. That ground was not considered by his Honour, as the appeal succeeded on other grounds (see that decision at [119]).

13. The appellant’s submissions on this issue are summarised above, particularly at [70]-[77]. ‘Credit’ is said to have been “at the forefront of the appellant’s defence”. Credit was not specifically raised by the appellant at the arbitration hearing on 18 August 2016, other than by the request that the Arbitrator “take in to account what has previously been put”. The appellant’s previous counsel, at the arbitration hearing on 23 November 2015, referred to the historical discrepancies, and initially avoided making this a credit issue, leaving open the possibilities that disclosure of the 2006 symptoms may have been deliberately withheld, not volunteered or just forgotten (23.11.15 T37.32-3) . At the conclusion of his submissions he put that it was unlikely the earlier symptoms would have been “just generally forgotten” (23.11.15 T40.14-5).  

14. The Arbitrator’s reasons do not deal with the respondent’s credit. This is understandable in circumstances where, as the case was presented to her, credit was not specifically raised, save obliquely, by the request to “take into account” the earlier submissions. The appellant’s submissions in the earlier proceedings did not seek any specific finding on credit. The submission was simply that the failure to disclose the earlier symptoms was unlikely to be due to the respondent having forgotten them. The respondent’s submissions on this appeal at [7] state:

    “During the substantial period during which the worker was able to function without complaint and to perform heavy duties, he may well have forgotten about his problems in 2006 or alternatively considered them to be irrelevant when addressing the onset of symptoms in 2009. He was not cross-examined by the appellant, so there is no evidence as to the reasons for his not mentioning the prior symptoms”.   

1. In JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 Roche DP at [122] said:

   “Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter[2011] NSWCA 330 from [81]).”

2. The extent to which such a finding can properly be made, in the absence of cross-examination, will depend upon the facts and circumstances of the individual case, and obligations of procedural fairness (Edmonds at [91]).

3. There were other factors which cast doubt on the availability and nature of a credit finding in the circumstances. The respondent’s solicitor served the respondent’s statement dated 23 August 2012, which included reference to the 2006 symptoms, on 15 September 2012 (see [87]-[88] above). Non-disclosure of the 2006 symptoms, by the respondent to Dr Bodel at the medico-legal consultation on 19 December 2014, was one of the historical discrepancies referred to by the appellant’s counsel at the arbitration hearing on 23 November 2015 (see [101] above). Yet this post-dated, by about three years, formal disclosure of these problems by service of the statement.

4. In the current matter, the appellant’s credit argument, at the arbitration hearing on 18 August 2016, was raised tangentially by reference to the earlier submissions. The appellant did not identify any specific credit finding it submitted to be appropriate. The appellant’s specific submission was that it was unlikely that the explanation for the non-disclosure of the history of the 2006 symptoms was that they were forgotten. If accepted, this left open other explanations, which were unexplored. Additionally, the respondent makes a valid point in his submissions at [10]. An adverse credit finding against the respondent would “not thereby result in a determination of the matter in favour of the other party”. The appellant’s submissions on ‘credit’ do not identify the finding which it is submitted should have been made. They do not identify what consequences should flow from any ‘credit’ finding, and how this would affect the outcome of the case.

5. The Arbitrator did not, in the circumstances, err in not making a finding as regards credit. Ground No 1 fails.

GROUND NO 2 – APPREHENDED BIAS

1. Ground No 2 provides:

   “The arbitrator erred in fact, law and discretion in displaying apprehended bias against the appellant by

   (i)not properly engaging with the evidence;

   (ii)constructive failure to exercise jurisdiction;

   (iii)not properly engaging with the appellant’s submissions, and

   (iv)not giving adequate or sufficient reasons.

2. The appellant’s submissions at [26] “stressed that the appellant does not make any allegation of actual bias. Apprehended bias is a very different allegation.”

3. Ground No 3 asserts error in failing to give adequate or sufficient reasons. The appellant’s submissions state that Grounds Nos 2 and 3 “will be dealt with together as there is an overlap”. This may well be due to the error alleged in Ground No 2 at (iv). The principles governing apprehended bias, and the duty to give reasons, are different. Additionally, Ground No 2 is unarguable for reasons which appear below. I will deal with Grounds Nos 2 and 3 separately.

4. Various principles, on the topic of ‘apprehended bias’, are referred to above, in the reasons dealing with the appellant’s recusal application.

5. The appellant’s submissions going to Ground No 2 refer, in their entirety, to the Arbitrator’s reasons for decision, and alleged deficiencies in those reasons. It submits that the Arbitrator failed to engage with the evidence, that she failed to set out the parties’ submissions, that it is not possible to properly understand her reasoning, that she did not properly explain her reasoning on causation and analysis of the medical evidence, and that she erred in preferring the medical evidence in the respondent’s case. It submits that she made a finding on a medical issue without evidence, and that she failed to apply the authorities of Hancock and Makita.

6. I formed a preliminary view that the decision in Nicholls may be relevant to Ground No 2; it was an authority that neither party had addressed. On 6 April 2017 I issued a Direction in the following terms:

   “1. The parties are directed to lodge and serve written submissions, dealing with the application of the decision in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 to Ground No 2 of the Grounds of Appeal, and the viability of that ground.

   2. The submissions of both parties are to be lodged and served prior to 5 pm on 13 April 2017.”

7. The appellant lodged further written submissions on 10 April 2017. The respondent lodged further written submissions on 13 April 2017.

Appellant’s Further Submissions

1. The appellant submits that the respondent failed to address the appellant’s submissions going to apprehended bias in Ground No 2. I should note that this is not so. The appellant combined its submissions on Grounds Nos 2 and 3, and at [28] of its submissions it set out sub-paragraphs (a)-(o), in which it sought to identify errors in the Arbitrator’s reasons, which were said to support both of these grounds. The respondent’s submissions at [12] dealt with each of these sub-paragraphs, in turn. The appellant also submits that the respondent did not cite Nicholls. This is true, neither party addressed that decision in their submissions. The Direction was issued to give both parties an opportunity to address Nicholls.

2. The appellant submits that in the current matter “the apprehended bias only became apparent after the hearing in the arbitrator’s reasons for Decision” (emphasis in the original). It submits that nothing occurred during the arbitration hearing that “gave rise to any allegation of apprehended bias”. For this reason, the appellant submits that Nicholls can be distinguished from the current matter (at [3]). The appellant submits:

   “The apprehended bias, as alleged in Ground 2(a) to (c) and the appellant’s submissions [paragraphs 15(a) to (j)] results solely from the arbitrator’s decision” (at [4]).

3. After referring to Nicholls at [68], the appellant’s submissions at [6] state:

   “For the reasons already advanced, the appellant maintains its position in Ground 2(a) to (c) that the arbitrator did not bring an impartial mind to determining the issues in this case. This is apparent from her decision.”

4. The appellant, in its further written submissions at [7], submits that if “it is found that the concept of apprehended bias is not made out… another way of characterising the arbitrator’s failures as outlined in its submissions at paragraph 15(a) to (j) is ‘a failure to properly exercise jurisdiction’ [Ground 2(b)].” The appellant submits:

   “It is submitted that the arbitrator’s factual determinations (for example, at paragraph [49] of the decision), are ‘illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds’{SZOOR v Minister for Immigration (2012) 202 FCR 1 at [83]}.”

Respondent’s Further Submissions

1. The respondent submits that Nicholls illustrates why the appellant’s complaint of apprehended bias is unfounded. The appellant has not identified conduct by the Arbitrator, “which would give rise to the apprehension that she had prejudged the issue”. The appellant’s argument is “confined to the decision itself”. The respondent submits that the appellant’s argument as to apprehended bias is of the “fallacious” kind referred to in Nicholls at [67]. The respondent, referring to Nicholls at [73], submits:

   “…it is ‘impermissible’ to reason ‘backwards from what was decided at trial, and how it was decided, to the conclusion that it might reasonably be apprehended that the judge might have prejudged those issues’.”

2. The respondent also submits that the leave to make further submissions was restricted to requiring submissions going to the application of Nicholls, not “to make further submissions regarding the alleged failure to exercise jurisdiction”.

Consideration

1. The appellant’s submissions in support of Ground No 2 are misconceived. The submissions do not direct themselves to identifying anything done or said by the Arbitrator, which might lead to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to resolution of the question she was required to decide. In Ebner the plurality, dealing with the ‘apprehended bias principle’, at [7] said:

   “Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.” (emphasis in original) 

2. The High Court in Nicholls dealt with the extent to which, in dealing with an issue of apprehended bias on appeal, when a case has been decided, it is permissible to have regard to the reasons given by the judge. At [67] the plurality (excluding references) said:

   “As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been ‘the crystallisation of that apprehension in a demonstration of actual prejudgment’ impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.”

3. The appellant’s further submissions at [4] and [6], quoted above, demonstrate confusion of the “two different allegations (actual bias and apprehended bias)”. Ground No 2 is argued on the basis of apprehended (not actual) bias. The appellant’s submissions are contrary to the clear statements of principle in Nicholls. The appellant’s argument going to apprehended bias cannot succeed.

4. The appellant’s further written submissions at [7] (see [126] above) say that if its argument on apprehended bias fails, the “arbitrator’s failures” can be characterised as “‘a failure to properly exercise jurisdiction’ [Ground 2(b)]”. It refers to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]. That passage reads:

   “In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.” (per Crennan and Bell JJ)

5. An argument based on the passage cited in the preceding paragraph is new. Ground No 2 is set out in its entirety at [116] above. Sub-paragraph (b) is worded “failing to constructively exercise jurisdiction”. It is not pleaded as a ‘stand alone’ ground. Each of the alleged failures set out at (a)-(d) of Ground No 2 are submitted to support the allegation of apprehended bias. The ‘reasons’ ground also appears separately as Ground No 3. “Failing to constructively exercise jurisdiction” does not appear as a separate ground. It is pleaded as an error in support of the ‘apprehended bias’ ground. The multiple matters submitted on at [28] of the appellant’s submissions are said, “when considered together”, to satisfy Grounds Nos 2 and 3, that is, ‘apprehended bias’ and ‘failing to give adequate or sufficient reasons’.

6. It is noteworthy that none of the authorities, cited at [7] of the appellant’s further written submissions, are cited in the appellant’s submissions or List of Authorities accompanying the appellant’s Application to Appeal Against Decision of Arbitrator. The appellant is effectively seeking to conduct the appeal on the basis of a further ground that was not pleaded. The respondent’s submissions, responding to Ground No 2 as originally pleaded, do not deal with the further ground, or the authorities the appellant now seeks to raise in support. The appellant has not sought leave to amend its grounds of appeal. It should not be permitted to add a further ground in this fashion.

7. The appellant’s further written submissions at [9]-[10] go to matters previously submitted on, which were not the subject of the Direction dated 6 April 2017, which called for submissions on a specific issue. The appellant submits that it “respectfully maintains the viability of Ground 2(a), (b) and (c)”.  These were not separate grounds. The material at (a), (b), (c) and (d) of Ground No 2 was submitted to exemplify the Arbitrator’s error in “displaying apprehended bias”. The ‘apprehended bias’ ground cannot be maintained because, for reasons given above, the argument the appellant seeks to make is contrary to binding High Court authority. The matter at (d) (‘adequate or sufficient reasons’) is separately considered below, as it is pleaded as a separate ground.

8. Ground No 2 fails.

GROUND NO 3 – ADEQUACY OF THE REASONS

The Appellant’s Submissions

1. The appellant refers to the decisions in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), Mitchell v Cullingral Pty Ltd [2012] NSWCA 389, and Newby v NSW Police Force [2009] NSWWCCPD 75 (Newby). It states that a “failure to give adequate or sufficient reasons is an error of law”. The appellant states:

   “The duty to give reasons involves the following elements:

   (i)The reasons must provide an intelligible explanation of the judge’s process of reasoning (the ‘path of reasoning requirement);

   (ii)The reasons must identify the evidence which is accepted and rejected, and the reasons for those conclusions;

   (iii)The reasons must explain why the conclusion was reached in the face of any evidence to the contrary;

   (iv)The reasons must deal with the substantial or significant arguments or issues raised by the parties and record why those arguments are accepted or rejected.”

2. The appellant does not indicate where the summation of principle in the preceding paragraph is to be found, or on what it is based. It is not a statement of principle, set out in those terms, in any of the authorities on ‘reasons’ to which the appellant refers.

3. The appellant addresses Grounds Nos 2 and 3 together, essentially at [28] of its submissions. The appellant there refers, in fifteen separate sub-paragraphs, to specific alleged errors which are said to support Grounds Nos 2 and 3. Many of these are of no relevance to Ground No 3. The argument at (a) is put on the basis it is relevant to the apprehended bias ground. The argument at (c) relates to the appropriate approach to records of treating doctors, which is not of apparent relevance to the adequacy of the reasons. The argument at (d) is critical of the reasons, as they did not adequately set out the parties’ submissions, and this makes it impossible to properly understand the Arbitrator’s reasoning, and the bases on which she has accepted or rejected arguments. This relates to the adequacy of the reasons. Otherwise, (d) relates to the Arbitrator’s application of authorities such as Hancock, Makita and Paric. This is not of apparent relevance to the ‘reasons’ ground. The argument at (g) similarly goes to the Arbitrator’s explanation and analysis, of medical evidence which did not contain a history of the prior complaints. This does not go to the adequacy of reasons. The argument at (h) goes to the Arbitrator’s preference for the evidence of Dr Al-Khawaja to Dr Edwards. The argument again turns predominantly on the weight to be attached to expert evidence, depending upon the accuracy of the history on which it is based. This does not go to the adequacy of the reasons. The argument at (i) simply states that the Arbitrator failed to refer to the fact that Dr Chester, who treated the respondent in 2006-7, does not refer to the prior complaints. The argument is not further developed. It is difficult to see that it relates to the adequacy of the reasons, the argument at (i) does not make that assertion.

4. The arguments at (j), (k) and (l) deal with the Arbitrator’s preference for the opinions of the “treating experts”, over those of Dr Potter and Dr Edwards. It is submitted that the Arbitrator “failed to have regard to the principles” in Makita and Hancock, when considering the weight to be attached to the expert evidence. The appellant does, at (k), say that no reason was given by the Arbitrator for why she preferred the views of treating doctors who had “seen the applicant on multiple occasions over a lengthy period”. In context, this passage of the submissions relates to the Arbitrator’s assessment of the weight of the medical evidence, rather than to the adequacy of the reasons. How the Arbitrator dealt with the medical issue, and the reasons she gave, are dealt with below in the consideration of Ground No 4. 

5. The Arbitrator referred to the proximity of the trapezius muscle to the neck, relevant to whether this was an explanation for the recorded complaints following the incident on 25 March 2009. At (m) and (n) the appellant submits this was done in the absence of relevant evidence. This submission goes to an alleged error in fact finding, rather than to a deficiency in the reasons. The appellant at (o) refers to the Arbitrator’s reference to the “short period of time” between the incident on 25 March 2009 and chronicled neck symptoms. The Appellant submits the period of time is important, given that the respondent alleges that the “incident was solely responsible for causing the multilevel disc protrusions”. Again, this submission goes to fact finding, rather than to the adequacy of the Arbitrator’s reasons. The view the Arbitrator formed of the acceptability of the parties’ medical cases is raised in Ground No 4, and dealt with under that ground.

The applicant doesn’t allege that there is an underlying disease process that has been aggravated.  What the applicant wants you to accept, and that’s the only way this claim can proceed, is that all the disc pathology has been caused by that incident.  That’s how black and white this case is.  And if you find that on the balance of probabilities that that proposition cannot be made out you don’t need to go further and say what did cause it, but if you’re not satisfied that that one incident on that one day where the applicant says that he was carrying that bag, and I’ll come to all of that in a moment, resulted in all that pathology the applicant’s claim must fail.” (23.11.15 T20.24-21.2)

“Their [the respondent’s] case is that it caused those three disc protrusions.” (23.11.15 T36.33-4)  

1. Whilst the respondent ran his case on the basis of the frank incident on 25 March 2009, he did not do so in a total vacuum as regards the underlying pathology. His counsel addressed on the opinion of Dr Darwish, that “the injury in March 2009 was at least a major aggravating factor if not the cause of the disc protrusions” (26.10.15 T31.24-6). The respondent’s counsel referred to “mild degenerative disease at C5/6” in the x-ray dated 24 July 2006 (26.10.15 T41.9-22). Contrary to the submission of the appellant regarding the basis on which the respondent brought his case (see [177] above) the respondent’s counsel submitted:

   “If this is all degenerative why is it that on a particular day in 2009 the applicant experienced significant pain.  That experience of pain is consistent with a particular manual task which the applicant has explained in his evidence and which has been accepted by a variety of doctors.

So in the circumstances, Arbitrator, the fact that there is pre-existing pathology does not provide the respondent with a way out.  The injury which occurred in 2009 did occur on the backdrop of pre-existing pathology and any pre-existing pathology would be a relevant factor for an AMS under section 323.  It’s irrelevant to the question of injury the liability issue which we need to determine.” (23.11.15 T44.31-45.10).

1. That an injury is pleaded as a frank incident is not inconsistent with the proposition that it consisted in the aggravation of an underlying disease: Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski) per Handley JA at [24]-[29] and Hodgson JA at [68], Bindah v Carter Holt Harvey Woodproducts Pty Ltd [2014] NSWCA 264; 13 DDCR 156 (Bindah) per Meagher JA, Ward JA agreeing at [25] and Emmett JA (Ward JA agreeing) at [103], NSW Police Force v Kearns [2008] NSWWCCPD 29 (Kearns) at [61]. This is not inconsistent with how the injury was pleaded at Part 4 of the Application to Resolve a Dispute. The appellant’s submission, that the respondent’s case was necessarily tied to the proposition that three level disc pathology was caused in its entirety by the single incident on 25 March 2009, was inconsistent with the above passages from Dimovski, Bindah and Kearns.

The Weight of the Respondent’s Medical Case

1. The Arbitrator’s reasons identified and accepted various criticisms the appellant made of the respondent’s medical case (see [161] above). She was then required to consider what effect these matters had on the weight to be given to the opinion evidence: Hancock at [83]. Samuels JA (Hutley and Priestley JJA agreeing) in Paric at 509G-510B, said:

   “It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think that there is any requirement that the matter put is precisely consonant with the material provided, and certainly it cannot be contended that there was no evidence upon which the opinions could be based.

   Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.” 

2. The High Court in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at [9] said:

   “It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson[1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”

3. It was a matter for the Arbitrator, to assess the extent to which the identified historical discrepancies affected the weight of the respondent’s medical case. In relation to the prior complaints, the Arbitrator noted that the respondent, after the symptoms in about 2006, returned to “what appears to be heavy duties” (her reasons at [36]). This is consistent with the respondent’s evidence in his statement dated 23 August 2012, at [2]-[4] and [11]. The appellant does not, on this appeal, argue that this description of the duties by the Arbitrator involved factual error. The Arbitrator noted there was “a lengthy hiatus in complaint” between the earlier bout of symptoms, and those in 2009 (her reasons at [36]). This was consistent with the clinical material from the practice of Dr Chester.

4. The appellant criticises the Arbitrator for citing “well known authorities cautioning the reliability of doctors’ clinical records”, yet relying on clinical records to conclude that there was “a lengthy hiatus in complaint”. The line of authority to which reference is made is that referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (reversed in the Court of Appeal, but on a different issue). Roche DP at [183] referred to a number of appellate authorities, and said:

   “It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care...”  

5. The Arbitrator, in a matter where both parties addressed extensively on clinical material from treating doctors, appropriately referred to this principle. The authorities do not, of course, say that such evidence should not be relied on, they caution care in the approach taken. The Arbitrator relied on clinical records in accepting the submissions of the appellant going to the prior symptoms, and in accepting the respondent’s submission that there was subsequently a hiatus in complaint, prior to the alleged injury on 25 March 2009. There was no inconsistency in this, and it was consistent with the evidence. The respondent submits:

   “Without [Dr Al-Khawaja’s] commentary on the 2006 complaints, [the Arbitrator] proceeded to make the common sense deduction that was open to her – the complaints in 2006 had resolved and were no longer relevant, as borne out by the lack of complaints for many years and the worker’s ability to engage in heavy work.”

6. This submission is consistent with the approach taken by the Arbitrator. After referring to the “lengthy hiatus in complaint”, at a time when the respondent was carrying out what appear to be heavy duties, the Arbitrator said that these matters tended to “reduce the strength of the submission made by the respondent [employer]” on the issue (reasons at [36]). This was open on the evidence, and relevant to a consideration of the extent to which this historical deficiency affected the weight of the respondent’s medical case.

7. The Arbitrator at [18] referred to the appellant’s argument that there was “a late onset of pain with respect to the neck”. She said at [23]:

   “The respondent places some weight [on] the apparent failure of complaint until at least three weeks after the alleged injurious event. I don’t think that this is so significant.”

8. The Arbitrator went on to discuss why. She referred to the clinical notes of Dr Lieng and Dr Chester, noting the first recorded complaint of cervical symptoms to Dr Chester was on 20 April 2009 (reasons at [22]). At [25] she said that “the apparent failure to complain of cervical symptomatology needs to be examined in context”.

9. The Arbitrator noted that the initial complaints to Dr Lieng (which were made on 26 March 2009) involved trapezius muscle spasm and restricted neck movement. This was consistent with the recorded clinical note for that date. Indeed, there were other references in Dr Lieng’s entries on 26 March 2009, 30 March 2009 and 8 April 2009, to restricted neck movements. They could not necessarily be characterised as discrete complaints involving the neck, and the Arbitrator did not specifically rely on these other entries. She did, at [25] of her reasons, observe that the respondent complained of “significant trapezius muscle spasm at which time Dr Lieng observed restricted neck movement”. The Arbitrator noted that the “neck and trapezius muscle are extremely close in proximity, it would be common that the symptomatology experienced in one body part could be confused with the other”.  

10. The Arbitrator’s reference, in this context, to the proximity of the trapezius muscle to the neck, is consistent with her status as a member of a specialist tribunal, in understanding the evidence before her and drawing appropriate inferences: Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37; 10 DDCR 230 at [89], ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) v The WorkCover Authority of New South Wales [2004] NSWCA 55, per McColl JA (Mason P and Meagher JA agreeing) at [219]-[232].

11. The Arbitrator also, dealing with the appellant’s argument going to when the cervical complaints commenced, observed at [26] and [34]:

    “26. The other reason the alleged failure to complain is not so significant is that we are dealing with a short period in time, which is less than a month after the incident when there is clear complaint of cervical symptomatology.”

    “34. The basic facts in this matter are that the applicant complained about neck pain shortly after the claimed incident. It is clear that it was not until the applicant consulted with Dr Chester that the neck was looked at as a separate injury to the shoulder. This would not be unusual given the proximity of the injuries.”

12. The Arbitrator reasoned that the first chronicled complaint of cervical symptoms was made to Dr Chester on 20 April 2009 (25 days after the relevant incident). In the interim, dating from the day following the incident, there were multiple presentations to general practitioners (Dr Lieng and Dr Chester) involving spasm of the trapezius muscle and restricted neck movements.

13. There was a discrepancy between the history assumed by doctors such as Dr Al-Khawaja, and the true history as accepted by the Arbitrator, on these historical matters. The Arbitrator’s reasons, dealing with the prior symptoms, and the time between the incident and the first recorded complaint of a cervical injury, go to explain why that discrepancy did not deprive the expert opinion in the respondent’s case of all weight. The Arbitrator’s analysis of these matters was consistent with authority and the evidence.

The Weight of the Appellant’s Medical Case

1. The Arbitrator also dealt with the appellant’s medical case. At the arbitration hearing on the remitter, the appellant relied predominantly on the report of Dr Potter dated 16 May 2012 (18.8.16 T28.17-30.10). Dr Potter said that an MRI scan demonstrated “pre-existing moderately severe C4/5, C5/6 disc protrusion and degeneration”. He referred to “a work incident 25/3/2009 which I am assuming gave rise to a simple strain pattern and left sided neck and arm pain”. He said:

   “4. He had injection therapy to the left side of neck and this problem seems to have resolved.

   5. He has now developed right sided neck and shoulder girdle pain, not below the shoulder tip, not down the arm, without neurological signs.

   6. Therefore, the current circumstance relates to pre-existing disc degeneration followed by work aggravation with resolution, followed by right-sided symptoms.”

2. Dr Potter’s findings on examination recorded that there was “no exaggeration”. He said “[t]he original left sided problem has now recovered and resolved effectively”, the only remaining problem on the left side was “a postural tilt”. He continued:

   “What is happening today is that the symptoms and signs relate to the right side of neck, that is a pain pattern right side of neck, right trapezius to the right shoulder blade, top of the right scapula, not below the AC joint, not down the arm. That has been present now for some months on the right side.”

3. The Arbitrator at [28] referred to Dr Potter’s report. She said that he had “prepared a thorough examination of the medical material before him”. She said she was “not convinced that the event resulted in a simple strain, given that the symptomatology did not resolve overtime [sic]”. She said that a conclusion of a strain “is also inconsistent with findings on MRI investigation indicating disc herniation at two levels”.

4. The Arbitrator’s statement that the symptomatology did not resolve is consistent with the medical evidence. Dr Chester, in his report dated 19 July 2013, said that on 12 July 2009 the respondent complained of “intense pain left side base of neck, and also on the right to a lesser extent”. Dr Al-Khawaja on 22 October 2009 commented on “arm pain at C6 distribution with weakness”.

5. Dr Lieng, reporting to the appellant following an examination on 17 May 2010, said the respondent’s “condition has deteriorated”, and described the respondent’s pain as having “progressed further” in the “last two months”. He said:

   “He describes a very different type of pain now with more pain in the left hand, pain in the right shoulder, and episodes of severe electric shock-like pain down the body and legs with neck flexion.” 

6. Dr Lieng recorded that the respondent “would like to return to normal pre-injury duties but he has tried for over a year now but still could not tolerate such demand.” On examination there was “a marked reduction in neck movement”, and “decreased sensation to pinprick over the left posterior shoulder over the trapezius muscle”. Dr Lieng described the respondent as having “neuralgic pain from two cervical disc protrusion[s]”. He said “I think that surgery is inevitable at the rate he’s progressing.”

7. The injection therapy to which Dr Potter referred was carried out (according to Dr Potter’s reference to Dr Davies’ reports) on 25 May 2010, after Dr Al-Khawaja had recommended C4/5 and C5/6 discectomy and fusion. It appears that Dr Davies, an independent medical examiner, recommended that a medial branch block injection be performed, before surgery was undertaken. On 5 July 2010 Dr Al-Khawaja recorded that the injection “helped his condition”. On 26 November 2010 he recorded “very occasional episodes of arms pain, but they settle within hours” (emphasis added). On 2 May 2011 he recorded “a few episodes of right sided neck pain and shoulder pain”. On 2 June 2012 (about two weeks after Dr Potter’s examination) Dr Al-Khawaja recorded:

   “Unfortunately this young boy tried all the conservative treatment types including injections and radiofrequency. He is still disabled with his neck pain, shoulders pain and episodes of tingling in his arms.”

8. On 14 June 2012 Dr Al-Khawaja recorded the respondent was “still disabled with his neck pain and shoulders pain”. He noted that the respondent “was getting another opinion very soon”. According to Dr Chester (referral note dated 15 June 2012) Dr Al-Khawaja did not, at that time, advise surgery.

9. The respondent, on 19 June 2012, filled out a ‘Patient Registration Form’ for Dr Hsu’s practice. It included a diagram on which the respondent was to mark “areas of your body where you now feel typical pain”. The respondent’s marking indicated pain in the neck, pain and numbness in both shoulders, and pain and numbness in the left arm down to the hand. In the same document, in response to a question about previous treatment in the form of spine injections, the form records “1st injection made area (?) better, 2nd , 3rd & 4th injection made no improvement!”  Dr Hsu’s note dated 26 July 2012 described the chief complaint as “Neck pain and arm pain”. Dr Hsu performed C4/5 and C5/6 anterior decompression and fusion on 27 September 2012.

10. Dr Potter’s opinion on causation was based on a stated understanding that the left sided neck problem resolved following the injection in mid-2010, and the right sided problems (which were the symptoms he identified on examination) commenced in April 2011 (his report at page 3). The Arbitrator’s statement that the symptomatology did not resolve over time was supported by the treating medical evidence. There was apparently an improvement in the respondent’s condition for a time, after the first injection. Subsequent injections did not (in the respondent’s assessment) assist. The document from Dr Hsu’s file clearly describes symptoms in the left side of the neck, the left shoulder and the left arm, on 19 July 2012. The ongoing complaints of left sided pain do not suggest that the left sided symptoms resolved. Dr Chester said that right sided neck pain (less severe than that on the left side) was present on 12 July 2009. Dr Lieng referred to symptoms in the right shoulder on 17 May 2010. The development of right sided symptoms did not date only from April 2011.

11. The reason given by the Arbitrator, in her reasons at [28], for not accepting Dr Potter’s diagnosis of a simple neck strain, was reasonably available on the evidence.

12. The appellant, at the original arbitration hearing, placed greater reliance on Dr Edwards’s reports dated 20 April 2015. The Arbitrator referred to Dr Edwards’s reports at [29] of her reasons. She noted that Dr Edwards did not accept that carrying a 20 kilogram bag on the left shoulder was likely to cause injury. She said that the exchange of information in the examination was of “limited use”, and only a “limited examination” took place.

13. Dr Edwards, in his primary report dated 20 April 2015, described the respondent as “a sullen man, who stared into space”. He reported that the respondent said he had “‘pain in my upper body everywhere’… from above the nipple level bilaterally and involved both shoulders, head and neck”. He had “the same pain everywhere in that area”. Dr Edwards said that on examination the respondent said that he was unable to move his neck at all. At one point the respondent and his wife (who accompanied him) decided to leave the consultation, although then decided to stay. Dr Edwards recorded that the respondent demonstrated neck flexion and extension, each at 10 degrees, and lateral rotation of about 5 degrees. The respondent said that he was “unable to move his shoulders at all”. Dr Edwards said that there was “no point in attempting any further examination”.

14. Dr Edwards described the respondent as a “reluctant examination subject and historian, and it was difficult to get any information from him”. He referred to the cervical spine x-ray carried out in 2006, saying it appeared to be for the same symptoms as occurred in 2009. He said:

    “I do not see that carrying a 20kg bag on his left shoulder would be likely to cause any acceleration or exacerbation of Mr Belokoski’s underlying cervical spondylosis.”

15. Dr Edwards said that due to the respondent’s “inability to be examined today, it is not possible to know the extent of his disability, if any”. He referred to the history of “cervical fusion carried out at three levels in two operations”. He said that “[n]o details are available from the treating surgeon regarding the findings at operation”. He suggested that “further information be obtained regarding the reason for the operation”. In his shorter report dated 20 April 2015, Dr Edwards expressed the view that the need for operation did not result from the incident on 25 March 2009, and said that he did not believe that the respondent “has a work related condition”.

1. Reading Dr Edwards’s reports as a whole, it is apparent that, for whatever reason, the doctor was unable to establish a satisfactory rapport with the respondent, for the purposes of assessment. The respondent was “a difficult historian”, it was “difficult to get any information from him”, the doctor said that there was “no point” in continuing the physical examination. The Arbitrator’s summary at [29] of her reasons, that the exchange of information at the consultation was “of limited use”, and that “only a limited examination” took place, was accurate.

2. For reasons discussed above, the Arbitrator, whilst acknowledging that the weight of the respondent’s medical case was affected by the historical discrepancies (which she accepted), considered that the respondent’s medical case was still entitled to weight. For reasons discussed above, the Arbitrator rejected the opinion of Dr Potter, that the incident on 25 March 2009 resulted in “a simple strain”.  She also identified difficulties in the history taking and examination of Dr Edwards.

3. At [37]-[38] of her reasons the Arbitrator preferred the evidence of Dr Al-Khawaja on the issue of injury to the neck. She noted that Dr Al-Khawaja’s view on the mechanism of injury to the neck was supported by Dr Bodel and Dr Hsu. Dr Al-Khawaja and Dr Hsu were both treating neurosurgeons, and Dr Hsu carried out the surgery involving decompression and fusion at C3/4/5/6. The Arbitrator had previously, at [32] of her reasons, noted that Dr Trantalis (a treating orthopaedic surgeon) also accepted the alleged mechanism of injury. The Arbitrator gave weight to the status of treating experts who had seen the respondent “on multiple occasions over a lengthy period”. This was legitimate. The specialist relied upon by the appellant, who did not accept the mechanism of injury to the neck, was Dr Edwards, who had seen the respondent once, in circumstances which were difficult.

4. Overall, the approach taken by the Arbitrator was consistent with authority and the evidence. It was well open to her. It was not affected by error. Even if I considered that a different outcome was preferable, this would not represent a basis to interfere with her decision (see the passages of Heggie, Strickland and Sok quoted at [170]-[173] above).

GROUND NO 5 – THE NATURE OF THE INJURY TO THE NECK

1. The Arbitrator at [51]-[52] made the following findings on injury, and orders relevant to referral to an AMS:

   “51. I have formed the view that on the balance of probabilities, it is more likely than not that the events in 2009 appear to precipitate a significant injury to my mind, which ultimately requires surgery.  In those circumstances there is to be an Award for the applicant in respect of the claim of injury to the cervical spine and consequential injury to the right upper extremity (shoulder).

   52. The matter is remitted to the Registrar to be referred to an Approved Medical Specialist for assessment of the claim on injury to the cervical spine and left upper extremity (shoulder) and a consequential condition to the right upper extremity (shoulder).”

The Appellant’s Submissions

1. In Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), Roche DP reviewed a number of decisions dealing with the bifurcated system of decision making in the Commission, and the respective roles of members and Approved Medical Specialists (AMSs). The appellant refers to passages at [251] and [257] of that decision. The appellant submits that it challenged not only whether the respondent had suffered injury to the neck, but also “the nature of any such injury; ie. the pathology”. The appellant submits that it “has consistently denied that the respondent suffered multilevel disc protrusions at C3/4, C4/5 and C5/6”. The appellant submits that it was the duty of the Arbitrator “to make findings as to the nature of the injury before making a referral to an AMS to assess permanent impairment, and her failure to do so constituted an error of law”.

The Respondent’s Submissions

1. The respondent submits that there “is no statutory requirement that an Arbitrator is to record the specific pathology caused by an injurious event, when making a determination that the worker has received an injury”. The dispute was whether the respondent received injury to his cervical spine on 25 March 2009, and a consequential injury to the right upper extremity. She determined the dispute before her. The respondent submits that, in any event, given the Arbitrator’s rejection of Dr Potter’s view “that the injury was limited to a strain”, and her “acceptance of the opinions of treating specialists who diagnosed disc pathology, it can be inferred that she considered the worker to have sustained the disc injuries revealed by the investigative scans.”

Consideration

1. The appellant refers to Jaffarie at [251] and [257]. The Deputy President at those paragraphs said:

   “251. However, it is accepted, as Emmett JA expressly acknowledged (at [111]), that it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act (the one exception to this statement relates to loss of hearing claims, discussed below). It is also accepted, though it was not expressly considered in Bindah, that ‘injury’ in s 4 includes an injurious event and the pathology caused by that event.

   257. The absence of any similar provisions for ‘the nature of the injury’ points strongly to the conclusion that ‘the nature of the injury’ is a matter for the Commission to determine. This is consistent with Emmett JA’s statement at [111] that it is for the Commission ‘to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act’ and his Honour’s later statement (at [118]) that only ‘certain matters of causation’ (emphasis added) are within the exclusive jurisdiction of an AMS.”

2. At the original arbitration hearing, the appellant’s counsel referred to Jaffarie, and submitted that the Commission had jurisdiction to determine not only the “injurious event” but also the pathology (23.11.15 T21.4-10). The appellant submitted that an MRI investigation revealed three level “underlying disc disease”, but that this was “well-established” before anything that happened on 25 March 2009 (23.11.15 T39.29-32). The appellant submitted that the event on 25 March 2009 “at best was a self-resolving musculoligamentous strain to the left shoulder” (23.11.15 T39.34-40.1). 

3. The appellant did not make submissions going to what findings on injury (including pathology) the Arbitrator should make, if the Arbitrator did not accept the appellant’s primary case, that the cervical spine was not injured on 25 March 2009. Such a proposition was inconsistent with how the appellant ran the case, which was that the respondent’s success on his allegation of injury to the cervical spine was contingent on acceptance that three disc protrusions, at C3/4/5/6, occurred in the incident on 25 March 2010 (see the submission quoted at [177] above).

4. The respondent did not make specific submissions dealing with what findings (if any) about the nature of the injury should be made, if the issue of injury to the cervical spine was resolved in his favour.

5. On the remitter, the respondent’s counsel submitted, referring to Dr Darwish’s report dated 18 October 2013, that there was a diagnosis of C4/5 and C5/6 disc protrusions. He submitted that this pathology resulted from the pleaded injury on 25 March 2009. He also submitted on Dr Darwish’s view that the incident on 25 March 2009 was “at least a major aggravating factor, if not the cause of the disc protrusions” (18.8.16 T17.27-18.19). In conclusion, it was submitted on the respondent’s behalf that “the applicant’s cervical spine condition can be attributed to the event of 25 March 2009”. It was submitted that “those body parts” (the cervical spine, the left shoulder (which was not disputed) and the right shoulder (which was alleged to be a consequential condition) would be referred for assessment by an AMS (18.8.16 T19.16-33). The respondent did not submit that there should be referrals of injuries constituting specific pathology.

6. On the remitter, the appellant submitted that the respondent should fail on its allegation of “cervical injury” (18.8.16 T 30.2-10), and that the right shoulder allegation was “just a bridge too far” (18.8.16 T31.6-7). The appellant did not make submissions on what findings about the nature of injury should be made, if the respondent succeeded in proving the injury to the cervical spine.

7. In Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335, an appeal from the decision of Roche DP in Jaffarie was upheld, and the matter was remitted for re-determination by a different arbitrator, “in accordance with the reasons in the Deputy President’s judgment of 9 December 2014 as varied by this judgment”. The analysis by the Deputy President, of the respective roles of members of the Commission and AMSs (including the passages at [251] and [257] quoted above) was not the subject of any criticism in the Court of Appeal, and formed part of the Deputy President’s reasons pursuant to which the matter was to be re-determined. The Deputy President at [259] said:

   “In Bindah, the parties agreed that the worker had received an injury and, as Emmett JA observed at [119], the Arbitrator did not ‘need’ to make a determination about the precise nature of the injury. However, consistent with the reasoning of Meagher JA, when the Commission, either by consent or after a contest, has determined the nature of the injury, it is for the AMS to determine the degree of whole person impairment that has resulted from that injury. While it is open to an AMS to determine that no whole person impairment has resulted from the agreed or found injury (Austin; Haroun), it is not open to an AMS to find that the worker suffered no injury or has suffered a different injury to that found or agreed.” (emphasis in original)

8. Applying the reasoning in Jaffarie, the Commission (in the bifurcated system) has jurisdiction to determine whether a worker suffered injury, and the nature of the injury. The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case. In Kempsey Shire Council v Kirkman[2010] NSWWCCPD 104 one of the grounds of appeal was that an arbitrator had erred in “failing to determine the nature of the injury”. Roche DP at [82] dealt with this ground saying:

   “The Council has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury.”

9. In the current matter, a general submission was made on the appellant’s behalf, at the original arbitration hearing, that there was power to determine the pathology. Neither party made submissions dealing with what findings on the nature of the injury should be made, if the issue of injury to the cervical spine was resolved in the respondent’s favour. On the remitter, the respondent submitted that certain “body parts” should be referred for assessment by an AMS. The appellant submitted that the respondent should fail on his allegation of injury to the cervical spine. Again, neither party made any submission going to appropriate findings on the nature of the injury to the cervical spine, if the respondent succeeded on that issue.

10. The appellant submits it was an error of law, that the Arbitrator did not “make findings as to the nature of injury to the neck”. It is not an error of law to fail to address a matter which is not raised: Watson v Qantas Airways Limited [2009] NSWCA 322; 7 DDCR 113 at [13], Bell at [30]. The respondent submits, accurately, that the dispute before the Arbitrator went to whether the respondent injured his cervical spine on 25 March 2009, and whether he suffered a consequential condition of the right upper extremity; “the Arbitrator determined the dispute before her”. Although the power to make specific findings on the nature of injury had been raised in general terms at the original arbitration hearing, it was not pursued thereafter. The parties did not subsequently request that such orders be made, or make submissions on what any such findings should be.

11. The Arbitrator did, in any event, make findings that dealt to some extent with the nature of the cervical injury (her reasons at [51], quoted at [212] above).

12. Ground No 5 fails.

13. The appeal is unsuccessful.

ANOTHER MATTER

1. At the arbitration hearing on the remitter, counsel for both parties said that they relied on submissions previously made on behalf of their clients, at the original arbitration hearing (which ran over two days). Transcript of the original arbitration hearing would have been available to the parties, the original decision dated 23 December 2015 having been appealed. The parties did not identify specific aspects of the earlier submissions, or passages of the earlier transcript, on which they relied.

2. It may well be expeditious to incorporate previous submissions into later submissions. However, where parties rely on earlier submissions, they should specifically identify the submissions on which they rely. Where transcript is available, this should be done by references to passages from the transcript. It is inappropriate to expect an arbitrator to peruse previous transcript without guidance as to what parts are relied on. At the least this is repetitious, at worst it may be misleading, where the evidence or submissions have changed since the earlier hearing.

DECISION

1. The Arbitrator’s determination dated 10 October 2016 (as amended) is confirmed.

Michael Snell
Deputy President

27 April 2017