Iqbal v Hotel Operations Solutions Pty Ltd
[2021] NSWPICPD 40
•15 November 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40 |
| APPELLANT: | Mohammed Javed Iqbal |
| RESPONDENT: | Hotel Operations Solutions Pty Ltd |
| INSURER: | AAI Ltd trading as GIO |
| FILE NUMBER: | A1-6359/20 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 15 November 2021 |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to admit fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The Arbitrator’s Certificate of Determination dated 24 February 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence; findings of ‘injury’ pursuant to subclauses (i) and (ii) of section 4(b) of the Workers Compensation Act 1987; alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated authorities |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Self-represented | |
| Respondent: | |
| Mr T Grimes, counsel | |
| Hicksons Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Ms R Homan |
| DATE OF MEMBER’S DECISION: | 24 February 2021 |
INTRODUCTION AND BACKGROUND
Mohammed Javed Iqbal (the appellant) migrated to Australia in 2006. He worked in Australia as a room attendant, initially with another company from May 2006 to May 2008, and then with Hotel Solutions Pty Ltd (the respondent) from October 2008. He attended varying hotels depending on a roster, and he was required to clean and make up hotel rooms. He collected rubbish, made up beds, replenished tea and coffee provisions and cleaned bathrooms. He said there was pressure to work quickly. There was a break in his employment from March to August 2009 when he returned temporarily to Bangladesh. He resumed his employment with the respondent from 24 August 2009.[1]
[1] Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWWCC 61 (reasons), [22]–[26].
The appellant experienced stiffness in the right ring and index fingers in May 2010, for which he saw a general practitioner. On 7 October 2010, pain radiated from his fingertips to his right hand, together with pins and needles from the right side of his neck down to his fingers. He saw his general practitioner. On 11 October 2010, he reported his difficulties to his supervisor, said his general practitioner had told him to find a more suitable job, and resigned. The appellant had been a qualified medical practitioner in Bangladesh and he wished to work as a general practitioner in Australia. He spent about one and a half years studying for the Australian Medical Council clinical examination and also applied to hospitals for positions without success. He sat the relevant examination in March 2011 without success.[2]
[2] Reasons, [29]–[32].
In April 2012, following x-rays of the right hand which were reported as normal, the appellant was referred for a CT scan of his neck, which showed multiple cervical disc protrusions with cord compression. On 12 June 2012, Dr Maniam (to whom the appellant was referred by his general practitioner) gave him a WorkCover certificate. His general practitioner gave him a certificate backdated to 7 October 2010. The appellant gave a WorkCover certificate to his previous supervisor at the respondent. The appellant also developed gastric symptoms following the ingestion of anti-inflammatory medication.[3] An assessment by an injury management consultant in a report dated 13 September 2012 included reference to lower back symptoms.[4] The first documented complaint of low back pain was to his general practitioner, Dr Abdalla, on 17 September 2012, when it was reported the back pain “started at work years ago”.[5]
[3] Reasons, [33]–[44], [81].
[4] Reasons, [97]–[98].
[5] Reasons, [100].
The appellant lodged a claim form dated 11 July 2012.[6] It nominated an injury being “Multi disc protrusion in cervical spine”. It said “[t]his happened over a period of time”. It nominated a date of injury of 7 October 2010. It said the injury was sustained “cleaning hotel suites”. Liability was denied by the respondent’s insurers, QBE and GIO, in a series of dispute notices dated 21 September 2012, 8 November 2012, 6 April 2018 and 5 February 2019.[7]
[6] Appeal application, pp 289–291.
[7] Reply, pp 1–7, 8–12, 13–16 and 17–23.
The appellant took proceedings in the Commission no. 17013/12 seeking weekly payments, medical expenses and lump sum compensation. These proceedings were struck out for want of prosecution by a Commission arbitrator, a decision that was confirmed on appeal by Keating P in a decision dated 22 July 2014.[8]
[8] Iqbal v Hotel Operations Solutions Pty Ltd [2014] NSWWCCPD 45.
The appellant came under the care of Dr Pope, a neurosurgeon, in 2013. Dr Pope performed C5/6 and C6/7 anterior cervical discectomy and fusion on 27 June 2016.[9]
[9] Reasons, [109]–[110], [122].
The appellant brought proceedings no. 1756/19, claiming weekly payments, medical expenses and lump sum compensation. These proceedings were discontinued by consent on 26 June 2019.
The current proceedings were commenced on 2 November 2020. The claim brought is for weekly compensation from 7 October 2010, medical expenses and lump sum compensation in respect of the cervical spine, lumbar spine, surgical scarring and the digestive system. The matter was listed for arbitration hearing on 5 January 2021. The appellant was self-represented. The respondent was represented by Mr Grimes who was instructed by Messrs. Hicksons Lawyers. It was agreed that the issues of ‘injury’ regarding the cervical and lumbar spine, s 9A of the Workers Compensation Act 1987 (the 1987 Act), whether there was a ‘consequential’ gastrointestinal condition resulting from ‘injury’, and the correct date of injury, would be decided initially. Subject to the appellant’s success on ‘injury’ and s 9A to a greater or lesser extent, there was likely to be a referral to an Approved Medical Specialist (AMS) to assess permanent impairment. It was agreed the matter would then come back before the Arbitrator to deal with weekly compensation, medical expenses and the lump sum claims.[10]
[10] Transcript of arbitration hearing 5/1/21 (T), T 1.41–2.18.
Mr Grimes and the appellant both addressed the Arbitrator, no oral evidence was adduced. The Arbitrator issued a Direction dated 6 January 2021 giving the appellant leave to serve and lodge additional evidence by 12 January 2021, dealing with the nature of his employment duties. The respondent was given until 19 January 2021 to lodge and serve written submissions in response.
The Commission issued a Certificate of Determination dated 24 February 2021 accompanied by the Arbitrator’s reasons. There was a finding of injury to the cervical spine as a result of the ‘nature and conditions’ of employment, pursuant to s 4(b)(ii) of the 1987 Act. The deemed date of injury was 7 October 2010. There was a finding that the appellant had failed to discharge his onus of proving injury to the lumbar spine as a result of the ‘nature and conditions’ of employment. There was a finding of a consequential condition of the gastrointestinal system as a result of the cervical spine injury. It was ordered that the matter be referred to an Approved Medical Specialist to assess whole person impairment in respect of the cervical spine, skin (scarring) and digestive system (upper gastrointestinal tract).
The appellant, on 24 February 2021, sought to lodge a report of a neurologist, Dr O’Neill, dated 28 September 2018, which included assessments of permanent impairment in respect of the appellant’s cervical spine and lumbar spine. The report was partially incomplete, a number of its pages were very faint to the point of being illegible. The appellant requested that the report be forwarded to the Medical Assessor who was to assess permanent impairment. He was informed by the Commission that it would be necessary that he lodge and serve the report of Dr O’Neill under cover of an Application to Admit Late Documents. He did so, and the respondent, on 1 March 2021, objected to the admission of Dr O’Neill’s report. The given reasons for the objection were that the report was incomplete, the history relied on was unclear, the report had not been previously served, and the appellant had already relied on a report from Dr Guirgis, an orthopaedic surgeon, with no reason given for why he needed to rely on a further report. The appellant was invited to provide written submissions in response to the objection. On 4 March 2021, the appellant lodged “a further Application to Admit Late Documents and another incomplete copy of Dr O’Neill’s report”.[11]
[11] Certificate of Determination dated 5 March 2021 and attached reasons (Reasons 2), [5]–[10].
The Arbitrator noted Dr O’Neill’s report was incomplete and was not previously served on the respondent in the current claim. The Arbitrator said it was not known what Dr O’Neill’s complete findings and evidence were. She said that for the same reason the incomplete report was not likely to materially assist the Medical Assessor. She noted the report was addressed to the appellant’s previous solicitors, although the appellant said he had a copy saved on his computer. She noted there was no explanation of why the report was not served, nor why the report was not relied upon prior to the issue of the Arbitrator’s decision. She noted the respondent said it would be prejudiced in the circumstances. She declined the application to admit Dr O’Neill’s report.[12]
[12] Reasons 2, [14]–[21].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. It is not submitted that the Arbitrator’s decision is ‘interlocutory’.[13]
[13] See Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196, [19]–[20], Diab v Naji [2010] NSWWCCPD 33, S L Hill and Associates Pty Ltd v Hill [2019] NSWWCCPD 37.
TRANSITIONAL MATTERS
The 2020 Act relevantly commenced on 1 March 2021 (the ‘establishment day’). The Arbitrator’s decision was issued on 24 February 2021. This appeal was lodged on 22 March 2021. The appellant’s right to appeal as at 1 March 2021 fell within the definition of an ‘unexercised right’ in cl 14A of Sch 1 to the 2020 Act. Clause 14D of Sch 1 to the 2020 Act permits the exercise of the right of appeal before me, as a Presidential member of the Personal Injury Commission, a ‘new decision maker’. The first instance decision maker’s title at the time of her decision was that of an ‘arbitrator’ and I will refer to her by that title.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[14] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[15] to the appeal process pursuant to s 352, said:
“(a) A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c) It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[16]
[14] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[15] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[16] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[17]
[17] [2020] NSWCA 54, [20].
In Northern New South Wales Health Network v Heggie Sackville AJA, dealing with the scope of such appeals, said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[18]
[18] [2013] NSWCA 255, [72].
GROUNDS OF APPEAL
The appellant is self-represented. He sets out, in the Application to Appeal, two aspects of the Arbitrator’s decision which he states he disagrees with. The respondent, in its submissions, has taken the grounds as being these two nominated areas of disagreement. The appellant did not put on submissions in reply objecting to this course. Consistent with the approach of the parties, I have adopted the same course. These grounds are:
(a) The finding of ‘injury’ to the cervical spine in the appellant’s favour, as a result of the nature and conditions of his employment, should have been pursuant to s 4(b)(i) of the 1987 Act as opposed to s 4(b)(ii). (Ground No. 1)
(b) The finding that the appellant had not discharged his onus of establishing ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment. The appellant submits the finding should have been one of ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment pursuant to s 4(b)(i) of the 1987 Act. (Ground No. 2)[19]
[19] Appellant’s cover letter to review the determination (cover letter), p 2.
THE ARBITRATOR’S REASONS
After summarising the factual and procedural background[20] the Arbitrator noted the parties’ agreement that the issues were:
(a) injury to the cervical and lumbar spine;
(b) substantial contributing factor;
(c) whether a consequential gastrointestinal condition resulted from the spinal injuries;
(d) the date of injury;
(e) incapacity;
(f) the entitlement to expenses pursuant to s 60 of the 1987 Act, and
(g) the degree of permanent impairment and the associated entitlement to lump sum compensation.
[20] Reasons, [1]–[14].
The Arbitrator noted the parties’ agreement to her suggestion that, given the issues and the fact that the appellant was self-represented, issues (a) to (d) above would be dealt with initially, and the matter (assuming the appellant’s success on the question of ‘injury’) would then be listed for further telephone conference to deal with the balance of the issues.[21]
[21] Reasons, [15]–[18].
The Arbitrator engaged in a detailed summary of the evidence of the appellant,[22] Mr Hapuwinda (the manager the appellant dealt with),[23] and factual documents (including a job description, the appellant’s resignation dated 11 October 2020, an employment separation certificate, and a document from the Canadian Centre for Occupational Health and Safety describing the risk factors for housekeeping).[24] She summarised, in detail, the clinical notes and associated material from Dr Abdalla and other practitioners at the NAS Advanced Medical Centre in Auburn.[25] This material included reports from other medical and associated practitioners forwarded to the practice. It included the reports of Dr Pope (who performed the cervical spine surgery) and Dr Dias (a rehabilitation consultant who examined and reported on the appellant at the request of solicitors who previously acted for him).[26]
[22] Reasons, [21]–[46].
[23] Reasons, [47]–[54].
[24] Reasons, [55]–[59].
[25] Reasons, [60]–[133].
[26] Application to Resolve a Dispute (ARD), pp 103–319.
The Arbitrator summarised the reports of Dr Guirgis, an orthopaedic surgeon qualified on the appellant’s behalf, dated 25 October 2017 and 29 October 2020. She noted that an earlier report of Dr Guirgis dated 29 July 2014 was not before her.[27] She summarised the reports of Dr Greenberg, a gastrointestinal surgeon who prepared a medicolegal report dated 9 November 2017, at the appellant’s request.[28] She summarised the reports of Dr Kalnins (referred to as “Dr Kalnis”) who examined the appellant, and reported, at the request of the respondent. Dr Kalnins did not think there was a relationship between the appellant’s symptoms in the right hand and forearm, and the cervical spine pathology.[29] The Arbitrator summarised the report of Dr Lloyd Hughes, also qualified by the respondent, dated 16 January 2019. Dr Hughes considered the appellant’s back and neck symptoms were unrelated to employment.[30] The Arbitrator summarised the report of Dr Sethi, a gastroenterologist qualified by the respondent, dated 29 January 2019. Dr Sethi considered that the appellant’s medication played no role in causing gastroenterological symptoms.[31]
[27] Reasons, [134]–[143].
[28] Reasons, [144]–[148].
[29] Reasons, [149]–[155].
[30] Reasons, [156]–[160].
[31] Reasons, [161]–[163].
The Arbitrator summarised the written submissions made by both the respondent[32] and the appellant.[33] She summarised the appellant’s oral submissions made at the arbitration hearing.[34] The oral submissions included reference by the appellant to a medical consultation in January 2010, in which the appellant complained to his general practitioner of right foot pain in association with his heavy job.[35] The Arbitrator referred to additional written submissions by the appellant called “Responses to Liability Issues” and further submissions lodged after expiry of the timetable set by the Arbitrator, dealing with the manual nature of his duties.[36] The Arbitrator summarised the respondent’s oral and written submissions in reply. It submitted the appellant, notwithstanding his training in Bangladesh, could not give admissible medical evidence. It submitted the article relied on by the appellant from the Canadian Centre for Occupational Health and Safety (Canadian article) would be given little weight. It was not an expert report, was unsigned and did not pertain to the appellant’s actual duties for the respondent.[37]
[32] Reasons, [164]–[181].
[33] Reasons, [182]–[188].
[34] Reasons, [189]–[199].
[35] Reasons, [191].
[36] Reasons, [200]–[206].
[37] Reasons, [207]–[209].
The Arbitrator said there were no corroborated, contemporaneous accounts by the appellant, of neck or lumbar symptoms, until a significant time after he ceased working with the respondent. She referred to the appellant’s complaint to Dr Abdalla of right foot pain on 8 January 2010. The only evidence of treatment was Deep Heat and Nurofen, there was no evidence of further investigations, the symptoms were not reported again during the period of the appellant’s employment, there was no evidence the symptoms on 8 January 2010 were associated with a lumbar spine condition, rather than something else.[38]
[38] Reasons, [214]–[216].
The Arbitrator noted there were consistent complaints of right hand and finger pain during the appellant’s employment, first recorded by Dr Abdalla on 6 August 2010 and initially associated with a strain. These symptoms were reported as “better with rest and worse with work” suggesting an employment connection. They persisted and were reported to Dr Abdalla again on 8 October 2010. The appellant’s letter of resignation confirmed “worsening right hand symptoms with work”, he was resigning as the work was unsuitable for him. A Centrelink Job Capacity Assessment Report dated 20 October 2010 suggested “some uncertainty over the diagnosis” and raised “the possibility of nerve conduction studies and cervical spine MRI if symptoms did not subside”. The symptoms “persisted over the next 18 months”. Dr Abdalla did not refer the appellant for cervical investigation or specialist review until neck pain was specifically reported on 13 April 2012.[39]
[39] Reasons, [217]–[221].
The Arbitrator noted a CT scan was then performed which showed cervical pathology at multiple levels. Dr Abdalla’s notes on 9 May 2012 suggested a relationship with the appellant’s previous work in hotels. A cervical MRI showed “multiple disc protrusions and degenerative canal stenosis”. Dr Maniam issued a certificate on 22 June 2012 describing injury due to the appellant’s work in hotels. Dr Abdalla issued a certificate dated 25 June 2012 describing injury to the cervical spine with radiation into the arms, and certifying the appellant incapacitated for that reason from 7 October 2010 onwards.[40]
[40] Reasons, [222]–[226].
The Arbitrator referred to the above analysis of the treating medical evidence. She said that it suggested an onset of neck symptoms during employment with the respondent. Symptoms were initially diagnosed as a hand sprain, but on further investigation were found to originate from the cervical spine. Dr Abdalla and Dr Maniam thought the symptoms were causally related to work. The reports from Dr Guirgis and Dr Dias favoured a causal relationship with the work. The Arbitrator referred to the job description in the factual report. She accepted that some tasks were light, other tasks were moderately heavy and involved awkward positions, overhead work and reaching. There was indirect pressure to work quickly as the appellant was “paid by the room”.[41]
[41] Reasons, [227]–[230].
The Arbitrator said that Dr Dias had a “reasonably sound understanding” of the duties, which supported his view that employment was a contributing factor to the neck condition. The Arbitrator said that Dr Guirgis’s understanding of the duties was that they “involved a lot of heavy manual handling activities, fast repetitive movements with the hands and fingers and adopting awkward postures to be able to reach for difficult to clean areas”. She said the respondent took issue with this description, which “puts a factually inaccurate gloss on the nature of the [appellant’s] duties and lacks precision”. She said that Dr Guirgis was one of a number of medical opinions that supported the causal relationship with employment. Dr Pope, who lacked a detailed history, knew the appellant worked as a housekeeper and would have a “broad understanding” of the tasks required.[42]
[42] Reasons, [231]–[234].
The Arbitrator referred to the competing medical case from Dr Kalnins and Dr Hughes. She said that Dr Kalnins did not engage with the opinions of Drs Abdalla and Maniam, that the upper limb symptoms were related to the neck. She said Dr Kalnins referred to not finding a “specific work injury”, suggesting he may have been looking for a specific injurious event rather than the gradual onset and worsening of symptoms. The Arbitrator said Dr Hughes also focussed on whether there was a specific event at work. She said he did not engage with the gradual onset of symptoms and the nature and conditions of the employment duties.[43]
[43] Reasons, [235]–[239].
The Arbitrator accepted the evidence that the hand and upper limb symptoms were related to the cervical spine. She said the histories on which Dr Guirgis and Dr Dias based their opinions were “problematic in some respects” but were “sufficiently accurate as to provide a proper basis of the acceptance of those opinions”.[44] She found at [242]:
“Although the [appellant’s] submissions suggested that he had no degenerative changes in the cervical spine, this is contrary to the medical evidence before me. Dr Guirgis specifically found that the [appellant] had an aggravation, acceleration, exacerbation or deterioration in the course of employment of underlying asymptomatic biological age related changes in his cervical spine to which his employment was the main contributing factor within the meaning of s 4(b)(ii) of the 1987 Act. This opinion is consistent with the evidence of Dr Dias and the treating doctors. For the reasons given above, I prefer and accept Dr Guirgis’ opinion in relation to the cervical spine injury to the opinions of Dr [Kalnins] and Dr Hughes.”
[44] Reasons, [241].
The Arbitrator then turned to the issue of injury to the lumbar spine. She said that there was no contemporaneous reporting, during the appellant’s employment with the respondent, of symptoms involving the lumbar spine, or symptoms “attributed to the [appellant’s] lumbar spine”. She referred to the complaint of foot pain in January 2010, which the appellant “in hindsight” considered “a symptom of his lumbar condition”. She said that “the isolated complaint of pain in the dorsum of the [appellant’s] foot to Dr Abdalla in January 2010” had not been found by any of the treating doctors or medicolegal experts “to be attributable to lumbar symptoms such as radiculopathy”.[45]
[45] Reasons, [244]–[245].
The Arbitrator said that back symptoms were first reported to Dr Abdalla on 17 September 2012, occurring in the reported context of “lifting and cleaning at home”. She said there was a recorded history to Dr Abdalla of back pain having started “at work years ago” but it was not clear what work this referenced. A CT scan report dated 24 September 2012 described disc bulging and foraminal narrowing. Dr Dias reviewed this investigation in November 2012 and said that “employment was a substantial contributing factor to an injury of the lumbar spine due to repetitive manual handling and repetitive twisting”. The Arbitrator said that the doctor “did not engage at all with the substantial delay in lumbar symptoms being reported”.[46] The Arbitrator referred to the appellant’s statement:
“In his statement of 27 September 2018, the [appellant] said he suffered lower back pain during his employment with the respondent. The [appellant] said that at the end of every day he would get back pain with a radiating pain into his right leg, numbness and foot drop. The [appellant] said this made it more difficult to perform his duties and it was one of the reasons why he resigned in 2010.”[47]
[46] Reasons, [246]–[248].
[47] Reasons, [249].
The Arbitrator quoted a passage from Onassis v Vergottis,[48] which she described as commenting on “what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event”. She referred also to Watson v Foxman on this point.[49] The Arbitrator said that the evidence in the appellant’s statement was not corroborated by any contemporaneous evidence. She described the appellant as “pro-active in complaining of other health issues including respiratory symptoms, rashes and hand and upper limb symptoms to his employer and general practitioner”. She contrasted this with the absence of evidence of the “significant lumbar symptoms he has later described”.[50] She acknowledged the need to approach clinical records with caution, referring to Mason v Demasi.[51] She made a credit finding:
“I do not, however, find it credible, in the context of the evidence as a whole that such debilitating and frequent symptoms would not have been recorded in any of the contemporaneous evidence until September 2012.”[52]
[48] (1968) 2 Lloyds Reports 403.
[49] (1995) 49 NSWLR 315, 319.
[50] Reasons, [250]–[251].
[51] [2009] NSWCA 227, [2].
[52] Reasons, [251].
The Arbitrator referred to Dr Guirgis’s first report (25 October 2017)[53] which attributed the onset of lumbar symptoms to an incident at the Ibis Hotel when the appellant was in a lift that dropped quickly from the 5th or 6th floor to the basement, as well as the nature and conditions of employment. She referred to Dr Guirgis’s second report (29 October 2020), in which the history of onset was different. It was there said the appellant developed mild back ache towards the conclusion of his employment prior to that with the respondent, and that while employed by the respondent the pain was felt all the time and shot down his right leg to the foot and often down the left leg. The Arbitrator said it was on the basis of this history that Dr Guirgis said there was an aggravation, acceleration, exacerbation or deterioration of underlying asymptomatic biological age related changes in the lumbar spine.[54] The Arbitrator said:
“As indicated above, this history is not corroborated by the contemporaneous evidence and I do not find it credible that such persistent and serious symptoms would not have been recorded in the contemporaneous medical evidence until September 2012. Like Dr Dias, Dr Guirgis has not engaged at all with the delay in reporting symptoms.”[55]
[53] ARD, pp 131–143.
[54] Reasons, [252].
[55] Reasons, [253].
The Arbitrator noted a submission from the appellant that he did not have degenerative change in his lumbar spine, but rather “disc protrusions caused by heavy lifting and twisting inherent in his duties”. The appellant referred to his relatively young age. The Arbitrator said these submissions were not consistent with the opinions of the medicolegal experts and treating doctors. She noted Dr Pope said that the lumbar condition was most likely degenerative and not significantly caused by the appellant’s employment. Dr Hughes expressed a similar view. The Arbitrator said that, although the opinions of Dr Pope and Dr Hughes lacked detailed reasoning, the appellant carried the onus of establishing the alleged injury to the lumbar spine.[56] The Arbitrator quoted from the well-known decision of the High Court in Paric v John Holland (Constructions) Pty Ltd.[57] She said there was not a fair climate for acceptance of the opinions of Dr Dias and Dr Guirgis that the lumbar symptoms were causally related to employment. She made an award for the respondent on the allegation of injury to the lumbar spine.
[56] Reasons, [254]–[259].
[57] [1985] HCA 58, 59 ALJR 844, [9].
The Arbitrator then dealt with the allegation of a consequential condition of the upper gastrointestinal tract resulting from the consumption of anti-inflammatory medication.[58] The appellant succeeded on this allegation, which is not challenged on this appeal.
[58] Reasons, [260]–[270].
The Arbitrator dealt with the deeming of an injury date pursuant to s 16 of the 1987 Act. She said both weekly compensation and lump sum compensation were sought. The first date of incapacity was 7 October 2010 and she found that to also be the deemed date for the purposes of the lump sum claim.
THE APPELLANT’S APPLICATION TO RELY ON FRESH OR ADDITIONAL EVIDENCE
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The Appeal Application has a large volume of evidentiary material attached to it. The admission of evidence on a Presidential appeal is subject to s 352(6) of the 1998 Act. The Commission issued a Direction dated 24 March 2021, directing the appellant to lodge submissions dealing with the following specific matters relevant to an application to admit further documents:
(a) identify precisely the documents it has attached to the Appeal Application that were not before the Arbitrator;
(b) provide submissions in respect of each of those documents as to why those documents should be admitted on the appeal, and
(c) provide reasons why the fresh, additional or substituted evidence was not in the proceedings before the Arbitrator.
The appellant lodged submissions dated 31 March 2021 responding to this Direction. He stated that the following documents were not before the Arbitrator:
(a) Dr O’Neill’s report dated 28 September 2018;
(b) Schedule of weekly wages dated 11 March 2021, and
(c) “Human dermatomes (nerve roots distribution)”.
Appellant’s submissions
The appellant submits he lodged Dr O’Neill’s report on 25 February 2021 and 4 March 2021 for “the purpose of the review of the determination”. He submits the report was “declined” on 5 March 2021 on the basis that ‘review’ was not available other than in accordance with s 352 of the 1998 Act and that a number of pages were missing. He says that he resubmitted the report on 6 March 2021 “for the purpose of assessment of permanent impairment” and it was then accepted.
The appellant says that the “Human dermatomes” document was collected from Wikipedia on 3 March 2021. He submits that, apart from the documents described in [43] above, “[a]ll other documents were presented before arbitrator”. He makes submissions that refer to a document from Wikipedia showing lumbar nerve distribution in the leg and foot. He submits on the basis of the Wikipedia document that the nerve supply of the dorsum of the foot is mainly provided by the L4/5 nerve root.
The appellant makes submissions going to the use which he seeks to make of Dr O’Neill’s report, dealing with the merits of his case. He submits Dr O’Neill said there was “no deductible proportion”. This means “that I did not have any pre existing disease in my [lumbar] and cervical spine for which any deduction can be done”. He refers to reports of Dr Guirgis and Dr Dias in support of an argument that the cervical spine injury should have been found to have occurred pursuant to s 4(b)(i). He submits he did not “have any pre existing disease or condition in [his] cervical or [lumbar] spine”.
The appellant submits the schedule of weekly wages contributes to determination of “the proper amount of weekly wages”. He submits his schedule considers “the loss of my career as a medical doctor”.
The appellant, dealing with why the additional evidence was not used at the arbitration hearing, submits the Arbitrator “seemed to be satisfied” with reports from Dr Guirgis and Dr Dias on which he submitted. It was only after the Certificate of Determination was issued that the appellant “understood that [he] should submit more evidence for his [lumbar] spine injury and recalled the medicolegal report” of Dr O’Neill.
Respondent’s submissions
The respondent submits the report of Dr O’Neill pre-dates the arbitration hearing by more than two years, was not served prior to the arbitration hearing, and relies on a ‘lift incident’ on 20 April 2009 which was not pleaded in the ARD. It submits no reason is proffered by the appellant for why this report was not served prior to the arbitration. The respondent submits it would be prejudiced if the report were admitted. The respondent submits the schedule of weekly wages is irrelevant to the grounds of appeal. It submits there is no reason given by the appellant for why the Wikipedia entry was not available to be served at the arbitration hearing. The respondent submits the appellant seeks to use the Wikipedia entry “to support his own inadmissible ‘expert opinion’ that there is a relationship between the dorsum and the lumbar spine”.[59]
[59] Respondent’s submissions, [8]–[10].
Consideration
In CHEP Australia Ltd v Strickland[60] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. ... The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[60] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.”[61] (emphasis in original)
[61] [2015] NSWWCCPD 10, [28].
Dr O’Neill’s report
The report of Dr O’Neill was available to the appellant and could, with reasonable diligence, have been used at the arbitration hearing. The first of the threshold tests in Strickland is not satisfied. This leaves the second of the threshold tests, would the result be different if the report were admitted?
The appellant’s submissions in the cover letter deal with the medical evidence and whether it supports the finding that there was pre-existing disease in the cervical and lumbar regions of the spine. The appellant refers to the Arbitrator’s finding at [242] of the reasons (quoted at [33] above).
The appellant submits the reasons at [242] misstate the opinion of Dr Guirgis. The appellant refers to the doctor’s report dated 29 October 2020 where Dr Guirgis expressed the following view:
“In conclusion I am opining that:
• He had sustained an injury arising out of or in the course of your [sic] employment to the lumbar spine and cervical spine within the meaning of section 4 of the 1987 Act.
• His employment was a substantial contributing factor to an injury to his lumbar spine and cervical spine within the meaning of section 9A of the 1987 Act.
• He had contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor within the meaning of section 4(b) of the 1987 Act.
• He had sustained permanent impairment as a result of his injury to his cervical spine and lumbar spine as required by section 66 of the 1987 Act.”[62]
[62] ARD, pp 14–15.
The appellant submits this passage refers to a “disease that is contracted by a worker in the course of employment”, that is, a ‘disease’ within the meaning of s 4(b)(i) (rather than s 4(b)(ii)) of the 1987 Act. The appellant refers also to a whole body scan in 2012. He submits the scan referred to “minor degeneration in my C5/6 & C7/T1, but not C6/7 “even in minor level”.[63] He submits:
“So, I definitely didn’t have any pre existing disease or condition in my cervical and [lumbar] spine. Anything biological or constitutional or minor can not be considered as disease.
Dr John Hugh O’Neill said in his report of 28/09/2018 that there is no deductible proportion. This also indicates I did not have any pre employment condition in my [lumbar] and cervical spine for which 10% deduction can be done. (Please see page 13 point 16 of the report of Dr O’Neill)”.[64]
[63] Cover letter, pp 3–4.
[64] Cover letter, p 4.
The passage of Dr O’Neill’s report to which the above quote refers is the following:
“16. Please provide your calculation, if any, of the proportion of your assessment to be deduced [sic, deducted] on account of a previous injury or pre-existing condition or abnormality. This proportion is known as ‘the deductable proportion).
There is no deductible proportion.”[65] (emphasis in original)
[65] Application to Admit Late Documents, 6/3/21, p 13.
The appellant submits that Dr O’Neill’s opinion supports the evidence on which the appellant relies, from Dr Guirgis and the whole body scan. This is submitted to support the appellant’s argument that there were not (contrary to the Arbitrator’s finding) underlying asymptomatic biological age-related changes in the cervical spine. The appellant submits that similar reasoning applies to the alleged injury to his lumbar spine.[66]
[66] Cover letter, p 2.
There are difficulties in this argument. The passage of Dr Guirgis’s report quoted at [54] above, at the third bullet point, is largely consistent with the reading the Arbitrator gave it: that there were “underlying asymptomatic biological age related changes” which were the subject of aggravation, acceleration, exacerbation or deterioration to which employment was the main contributing factor. This is subject to an argument the appellant raises regarding the significance of the word “contracted” in Dr Guirgis’s opinion, which is dealt with below dealing with Ground No. 1. It is appropriate that the doctor’s reports be read together. Dr Guirgis, reporting on 25 October 2017 to an earlier firm of solicitors who acted for the appellant, dealing with diagnosis said of the cervical spine:
“Post-traumatic mechanical derangement of the cervical area of the spine. This was caused by musculo-ligamentous sprain\strain with intervertebral disc involvement. This had also triggered & aggravated the effects of underlying multilevel age appropriate degenerative changes.”[67]
[67] ARD, p 136.
In the same report Dr Guirgis, dealing with the lumbar spine, said by way of diagnosis:
“Post-traumatic mechanical derangement of the lumbar area of the spine. This was caused by musculo-ligamentous sprain\strain with intervertebral disc involvement. This had also triggered & aggravated the effects of underlying spondylotic changes.”[68]
[68] ARD, p 137.
The reading which the appellant seeks to give the passage is inconsistent with the view that there was “aggravation, acceleration, exacerbation or deterioration”. If the appellant’s reading were correct, there would be no condition that could be the subject of aggravation etcetera, as the entirety of the condition was work caused. The appellant’s reading is also inconsistent with the expressed views of Dr Guirgis when his reports are read as a whole. The opinion of Dr Guirgis is not consistent with the presence of “a disease that is contracted by a worker in the course of employment” (emphasis added), which is a necessary part of the definition of a ‘disease injury’ in cl (b)(i) of the definition in s 4 of the 1987 Act, which the appellant submits should apply.
The second difficulty is that the Arbitrator did not rely only on Dr Guirgis in dealing with this issue. She also described her conclusion on the issue as “consistent with the evidence of Dr Dias and the treating doctors”. Dr Dias was qualified by earlier solicitors of the appellant. In his initial report dated 13 September 2012, Dr Dias declined to comment on the diagnosis of the lumbar spine as it had not, at that point in time, been investigated. He said, by way of diagnosis of the neck symptoms:
“A C5/C6 disc protrusion on the right side, and C6/C7 left sided disc protrusion. disc protrusions cause a clinical rediculopathy [sic] on the right C6 nerve root and the left C7 nerve root. There is a background of degenerative disc disease and facet joint arthrosis noted throughout the cervical spine which is indicative of moderate cervical spondylosis.”[69]
[69] ARD, p 266.
Dr Dias in that report also said:
“With regards to the relationship between the accident and the client’s medical condition, it is reasonable to think that his employment with Hotel Operations Solutions was a contributing factor to his current compensable medical condition (relating to his neck) at this stage in time. In my opinion, there is a degree of constitutional degenerative osteoarthritis that is also contributing to his injuries.”[70]
[70] ARD, p 267.
In his report dated 30 November 2012, Dr Dias described the appellant’s employment with the respondent as “a contributing factor to his current compensable medical conditions relating to his neck and his lumbar spine. In my opinion, there is a degree of constitutional degenerative osteoarthritis that is also contributing to his injuries.” Dr Dias reduced his assessment of whole person impairment in respect of the cervical spine by one tenth on account of “pre-existing impairment”.[71]
[71] ARD, p 206.
Dr Pope, the operating neurosurgeon, reported on 17 June 2019. Dr Pope said, of the appellant’s lumbar symptoms:
“There was also a diagnosis of lumbar spondylosis. My opinion is that the lumbar condition is most likely degenerate and I do not feel that this was significantly caused by the patient's employment.”[72]
[72] ARD, p 48.
Dr Pope, in that report, said the “neck symptoms however are more likely to be due to the repetitive heavy lifting and twisting”.[73]
[73] ARD, p 48.
The third difficulty relates to the probative value of Dr O’Neill’s report. The Arbitrator, in her reasons dated 5 March 2021 (see [11] to [12] above), described the report as “incomplete”. Pages 3, 5, 10 and 11 of the report are very faint, to the point where they are difficult to read. If a computer is used to increase the size of the font it is possible to read those pages. Even with the font magnified there are words which cannot be read. On page 5 there is a sentence, dealing with an MRI scan report dated 20 September 2014, that reads:
“It was felt that there were [indecipherable] making the cervical spinal canal [indecipherable]”.
On page 10 there are passages that read:
“Mr Iqbal clearly has a largely [indecipherable] neurological illness with symptoms and signs on current examination which cannot be explained by his radiological findings nor his surgical treatment for his neck and upper limb symptoms.”
“I think that Mr Iqbal’s progressive symptoms from around 2008 until surgery in 2016 were primarily as a consequence of ‘a [indecipherable] condition or disease’, namely cervical and lumbar spondylosis. I cannot exclude the possibility that his manual work as a Room Attendant might have been a contributing factor to the development of symptoms from his underlying [indecipherable] spondylosis. Having made that point, I am not aware of any specific work injury. I do not believe that the lift incident could have substantially contributed to his symptoms.”
On page 11 there is a passage that reads:
“I have detailed treatment above. I [indecipherable] there was [indecipherable] the C5/6 and C6/7 fusion in 2016. Although there was radiological evidence of cervical cord narrowing [indecipherable] due to a [indecipherable] narrow canal), there were no symptoms, signs or radiological evidence of myelopathy.”
The appellant addressed the state of Dr O’Neill’s report in an Application to Admit Late Documents dated 6 March 2021. It was there said:
“Page number 3,5,10 and 11 of the report of Dr O’Neill are not missing. One needs to enlarge page to read those pages. I am resubmitting the report of Dr O’Neill for the permanent impairment assessment of cervical spine.”
How parts of the report came to be degraded to a point where the text cannot be read is unknown and it would be both inappropriate and unhelpful to speculate. The consequence is that aspects of Dr O’Neill’s understanding of the radiological appearances, and his opinion, are incomplete and the probative weight of the report is reduced. The appellant submits it should be inferred, from the doctor’s statement that there is “no deductible proportion”,[74] that the doctor considered there was “no pre-existing disease” in the lumbar and cervical spine (see [46] above). It would be unsafe to infer that conclusion in circumstances where potentially important words in the report are illegible due to degradation by unknown causes. Such an inference would be “merely a possible explanation for the known facts”.[75] Rule 73 of the Personal Commission Rules 2021 (the 2021 Rules) provides that evidence based on speculation is unacceptable.
[74] Dr O’Neill’s report, p 13.
[75] Fuller-Lyons v New South Wales [2015] HCA 31, [46]. See also Luxton v Vines [1952] HCA 19; 85 CLR 352, [8].
Given the difficulties with Dr O’Neill’s report and the limited prospects of the arguments the appellant seeks to base upon it, I am not persuaded that the result would be different if the report were admitted. The second of the threshold tests in Strickland is not satisfied. The report does not satisfy the threshold requirements for admission pursuant to s 352(6) of the 1998 Act. If the requirements were satisfied I would not, in any event, be satisfied that the report should be admitted in the exercise of the discretion pursuant to s 352(6). There is no satisfactory explanation of why the appellant did not serve the report or seek to use it at the arbitration.
The schedule of weekly wages
The findings made by the Arbitrator went to the allegations of injury to the cervical and lumbar spine. The reasons specifically provided:
“The issue of incapacity is not one on which detailed submissions have yet been given. Given the complexities and particular circumstances of this case, consideration of that issue has, with the agreement of the parties, been deferred until after a Medical Assessment Certificate has been received from the Approved Medical Specialist.”[76]
[76] Reasons, [275].
Quantification of any entitlement to weekly compensation is yet to be made. There can be no error in that regard, weekly compensation not having been dealt with, and no issue on that topic validly raised on this appeal. The schedule of weekly wages is irrelevant to the subject matter of the appeal. Leave to rely on that document is refused.
The Wikipedia entry
The Wikipedia entry is inserted into the appellant’s discussion, in his submissions on this appeal dealing with Ground No. 2, of an entry in the records of his general practitioner dated 8 January 2010.[77] He refers to an entry which says “Working in a hotel, pain right foot, O/E tender dorsum of the foot, Xray right foot, Rx deep heat Panadol/Nerofen [sic]”. The appellant interpolates, as part of his submissions on appeal, that there was no mention in the entry of “local pathology on examination”. The point the appellant seeks to make, by reference to the Wikipedia entry, is that the “nerve supply of the dorsum of the foot is mainly from L4/5 nerve root”. He submits that his radiological scans from 2012 to 2020 refer to L4/5 disc bulging. He submits that on 8 January 2010 there was L4/5 bulging “which was irritating or compressing the L4/5 nerve root and causing pain”.
[77] Cover letter, pp 5–8.
The appellant does not give a reason for why the Wikipedia entry was not obtained and used at the arbitration. It would have been a simple thing to download such an entry. The first of the threshold tests in Strickland is not satisfied.
The appellant, at the arbitration hearing, referred to the medical consultation on 8 January 2010[78] and addressed on the entry. He sought to link the CT scan carried out in September 2012 with the foot complaint on 8 January 2010.[79] The Arbitrator clearly understood the connection the appellant sought to make and dealt with it in her reasons at [216]. She did not accept, in the absence of medical evidence to the effect, that the right foot complaint on 8 January 2010 related to symptoms emanating from the lumbar spine. She gave reasons for this view (see [27] above). She said there was nothing in the clinical entry (or the entries that followed it) that suggested a neurological reason for the complaint. The submissions on this appeal refer to the entry on 8 January 2010, saying it does not refer to “local pathology”. This does not assist the appellant. The entry is silent as regards the medical cause of the symptoms. The situation remains, with or without the Wikipedia entry, that there is no medical evidence to suggest that the complaint on 8 January 2010 resulted from any abnormality or injury involving the lumbar spine. The Wikipedia entry would not change the result and the second of the threshold tests in Strickland is not satisfied. The appellant is seeking to reagitate a point which he previously raised at first instance and which was decided against him. He does not identify appealable error. The discretion in s 352(6) is not enlivened. The appellant’s application in respect of the Wikipedia entry does not succeed.
[78] ARD, p 217.
[79] T 31.6–32.1.
The use of a download from Wikipedia, as a source of medical evidence, is, as a general proposition, inappropriate. Rule 73 of the 2021 Rules provides:
“Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
In Onesteel Reinforcing Pty Ltd v Sutton Allsop P, dealing with the equivalent provision in r 15.2 of the Workers Compensation Commission Rules 2010, said the Rule:
“… represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”[80]
[80] [2012] NSWCA 282, [3].
In Hancock v East Coast Timber Products Pty Ltd Beazley JA (Giles and Tobias JJA agreeing) said:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.”[81]
[81] [2011] NSWCA 11; 80 NSWLR 43, [82].
It would not, in any event, have been appropriate to admit the Wikipedia entry having regard to r 73 of the 2021 Rules.
The appellant’s application to admit fresh or additional evidence pursuant to s 352(6) of the 1998 Act is refused.
LEGISLATION
Section 4 of the 1987 Act relevantly provides:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,
…”.
GROUND NO. 1
The finding of ‘injury’ to the cervical spine in the appellant’s favour, as a result of the nature and conditions of his employment, should have been pursuant to s 4(b)(i) of the 1987 Act as opposed to s 4(b)(ii).
Appellant’s submissions
The appellant refers to the reasons at [242] (quoted at [33] above). The appellant quotes from a passage of Dr Guirgis’s report dated 29 October 2020 (reproduced at [54] above) which deals with causation of both the cervical and lumbar spinal conditions. The appellant submits that the third bullet point in that passage describes him as having “contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor within the meaning of section 4(b) of the 1987 Act”. The appellant submits that s 4(b)(i) applies where a disease is contracted by a worker; s 4(b)(ii) applies where there is an aggravation, acceleration, exacerbation or deterioration of any disease.
The appellant submits that the passage of Dr Guirgis’s opinion that is referred to says that the appellant “contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor” (emphasis added). The appellant submits this language (contracted) is the language of s 4(b)(i). He makes the further point that where Dr Guirgis refers to “aggravation” he does not specifically refer to the aggravation of any “disease”, the wording in s 4(b)(ii).[82]
[82] Cover letter, pp 3–4.
The appellant refers to his whole body scan report dated 22 August 2012.[83] He submits that report did not mention degeneration or arthritis at C6/7. He refers to a nerve conduction test (performed by Dr Dowla) dated 20 September 2012.[84] He submits this scan revealed “left C7 nerve root compression due to left paramedian disc protrusion at C6/7 with chronic neurogenic change in left triceps muscle”. He submits this was the main indication for the cervical fusion surgery. He continues:
“So, I definitely didn’t have any pre existing disease or condition in my cervical and [lumbar] spine. Anything biological or constitutional or minor can not be considered as disease.”[85]
[83] ARD, p 274.
[84] ARD, pp 254–255.
[85] Cover letter, p 4.
Respondent’s submissions
The respondent submits this ground is immaterial, as the appellant established liability in respect of the cervical spine in any event.[86]
[86] Respondent’s submissions, [16].
The respondent relies on the following as supporting the finding of cervical injury pursuant to s 4(b)(ii) of the 1987 Act:
(a) The MRI scan dated 13 June 2012 showed “narrowing of the right C5/6 and left C6/7 intervertebral foramina. At these levels, the cervical cord is flattened indicating the presence of degenerative canal stenosis”.[87]
(b) The whole body scan showed “… minor discovertebral degenerative change is noted at C5/6 and C7/T1.”
(c) Dr Dias’ report dated 13 September 2012 commented “There is a background of degenerative disc disease and facet joint arthrosis noted throughout the cervical spine which is indicative of moderate cervical spondylosis.”
(d) Dr Guirgis, in his report dated 25 October 2017, diagnosed “Post-traumatic mechanical derangement of the cervical area of the spine. This was caused by musculo-ligamentous sprain/strain with intervertebral disc involvement. This has also triggered and aggravated the effects of underlying multilevel age-appropriate degenerative changes…”.[88]
[87] Reasons, [85].
[88] Reasons, [137].
The respondent submits there is no error in the Arbitrator’s finding which is challenged in Ground No. 1.
Consideration
Issues of ‘main contributing factor’ did not apply as the found date of injury (7 October 2010)[89] was prior to commencement of the Workers Compensation Legislation Amendment Act 2012. At the relevant time it was necessary that s 9A of the 1987 Act (‘substantial contributing factor’) be satisfied.
[89] Reasons, [273]–[278].
Subject to issues of ‘main contributing factor’ (which did not apply) subs (i) of s 4(b) applied to a “disease that is contracted by a worker in the course of employment”, subs (ii) applied to the “aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease” (emphasis added). Dr Guirgis, in the opinion on causation on which the appellant relies in this ground, has inappropriately conflated the tests in subss (i) and (ii) of s 4(b). The doctor’s opinion was that the appellant had “contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor within the meaning of section 4(b)” (emphasis added) (see [54] above). The appellant submits that because the passage uses the word “contracted” it requires a finding pursuant to s 4(b)(i) of the 1987 Act. I do not accept that submission. The way in which Dr Guirgis expressed his opinion on causation, in respect of the cervical spine, was sufficient to support a finding that there was degenerative change which was aggravated. The Arbitrator treated it as supporting her findings on injury to the cervical spine to that effect. Dr Guirgis’s opinion, quoted at [54] above at the third bullet point, does not suggest that the doctor turned his mind in any focussed way to the distinction between an injury finding pursuant to subsections (i) and (ii). The way in which the provisions are conflated suggests the opposite.
It is necessary that the Arbitrator’s reasons be read as a whole.[90] The Arbitrator did not base her finding of injury to the cervical spine solely on the passage set out at [54] above. Earlier in Dr Guirgis’s report dated 29 October 2020, the doctor set out his opinion regarding the cervical spine:
“Post-traumatic mechanical derangement of the cervical area of the spine. This was caused by musculo-ligamentous sprain\strain with intervertebral disc involvement. This had also triggered & aggravated the effects of underlying asymptomatic multilevel age appropriate degenerative changes. Such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by heavy manual handling duties like the one described. This injury caused right > left C6/7 radiculopathy. This injury was treated initially conservatively with poor response. Surgical treatment was performed by Dr Pope on 27-6-2016 in the form of ACDF (anterior cervical discectomy and interbody fusion). The immediate postoperative period passed uneventfully.”[91]
[90] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[91] ARD, p 11.
The respondent’s submissions on this appeal refer to medical evidence that supports the Arbitrator’s finding of degenerative change in the cervical injury (see [87] above).
The opinion of Dr Dias (see [61] to [63] above) also supported the Arbitrator’s finding on causation of the cervical spine injury. In her reasons, after reviewing the medical opinion on both sides of the record, the Arbitrator said:
“Weighing all the evidence, I am satisfied on the balance of probabilities that the [appellant] did sustain an injury to his cervical spine in the course of his employment with the respondent. The weight of medical evidence favours the view that the hand and upper limb symptoms experienced by the [appellant] during the course of his employment were related to the condition at his cervical spine.”
The above injury finding was based on the evidence as a whole, not only on the opinion of Dr Guirgis. There was ample evidence to support the finding, which was open to the Arbitrator, having regard to the authorities discussed at [17]–[20] above. The appellant also makes a submission that “anything biological or constitutional or minor cannot be considered as disease”. There is no reasoning, authority or justification for this assertion, which is wrong. In Federal Broom Co. Pty Ltd v Semlitch it was said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness…”.[92]
[92] [1964] HCA 34; 110 CLR 626, 632.
Ground No. 1 fails.
GROUND NO. 2
The finding that the appellant had not discharged his onus of establishing ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment. He submits the finding should have been one of ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment pursuant to s 4(b)(i) of the 1987 Act.
Appellant’s submissions
The appellant refers to the clinical note dated 8 January 2010 (see [74] to [76] above). He makes the submission described at those paragraphs above: the dorsum of the foot is supplied by the L4/5 nerve root, he complained of pain in the dorsum of the right foot on 8 January 2010 and the clinical note entry did not mention local pathology or signs. Later investigations from 2012 onwards showed bulging at L4/5, therefore the complaint on 8 January 2010 represented contemporaneous evidence in 2010 of lumbar injury at L4/5. The submission refers to the Wikipedia entry, which is not in evidence.[93]
[93] Cover letter, pp 5–7.
The appellant refers to the reasons at [215] which state:
“There is evidence of the [appellant] complaining of other symptoms. There is an email dated 22 November 2009 from the [appellant] to Mr Hapuwinda complaining of respiratory symptoms. This complaint was recalled by Mr Hapuwinda and is reflected in the clinical records of Dr Abdalla. Although the [appellant] has, in hindsight, characterised this as a sensory symptom of his neck or back condition there is no corroboration of this assertion in any of the medical evidence before me.”
The appellant submits that, when he forwarded the email on 22 November 2009, he felt unusual in the whole of his body. Later, when symptoms were appearing gradually in his right foot and upper limbs, he understood the previous feelings were numbness indicating radiculopathy in the cervical and lumbar spine at the time of the email.[94]
[94] Cover letter, p 7.
The appellant refers to the reasons at [246] which state:
“Dr Dias initially refrained from expressing any opinion as to whether there was a compensable injury at the lumbar spine in the absence of investigations. The back symptoms were, however, reported shortly afterwards to Dr Abdalla for the first time on 17 September 2012. On that occasion, the [appellant] is recorded to have described lumbar symptoms occurring in the context of ‘lifting and cleaning at home’. The [appellant] is recorded to have told Dr Abdalla that back pain started ‘at work years ago’. It is not, however, clear what work this was in reference to.”
The appellant, in submissions on the appeal, says that he did not have back pain before joining the respondent, and did not do any work after resigning from the respondent, therefore the work referred to was that with the respondent.[95]
[95] Cover letter, p 7.
The appellant refers to the reasons at [100] where the Arbitrator described the appellant first reporting back pain to Dr Abdalla on 17 September 2012. The appellant submits the Arbitrator’s understanding was wrong. The appellant says in his submissions that he had complained to Dr Abdalla about back problems “on several occasions before that” but these were not included by the doctor in his clinical notes, perhaps because of the severity of his upper limb symptoms on those occasions.[96]
[96] Cover letter, pp 7–8.
The appellant submits that his work with the respondent was “heavy manual (unskilled) demanding lots of pulling, pushing, twisting and lifting jobs”. He refers to “late documentation of 05/01/2021”. He asks rhetorically: “If I can have my cervical spine injury due to nature and condition of my employment with hotel operation solutions Pty Ltd then why the nature and condition of that employment is not responsible for [m]y [lumbar] injury? [Lumbar] injury is more common [than] cervical spine injury in this type of jobs.”[97] The appellant refers to an article from the Canadian Centre for Occupational Health and Safety, to which the Arbitrator referred in her reasons at [59]. The appellant refers to the reasons at [209] where the Arbitrator described evidence from the respondent dealing with the appellant’s duties. The appellant, in his submissions on the appeal, gives responses to these points raised by the respondent in its evidence before the Arbitrator.[98]
[97] Cover letter, p 8.
[98] Cover letter, pp 8–9.
The appellant refers to the medicolegal evidence relating to his lumbar injury. He refers to the passage from Dr Guirgis’s report dated 29 October 2020 that is quoted at [54] above. He refers to a passage from the report of Dr Dias dated 30 November 2012,[99] Dr Dias referred to employment as a substantial contributing factor to his lumbar injury and assessed five per cent whole person impairment in respect of the lumbar injury. The appellant refers to the report of Dr O’Neill which was not admitted as additional evidence.
[99] ARD, pp 205–209.
The appellant refers to a report of the outpatient Clinic at Westmead Hospital dated 27 February 2017. It refers to neuropathic symptoms and the possibility of a further neurosurgical opinion. The appellant refers to Dr Pope’s reports. He suggests there is inconsistency between the reports prepared by Dr Pope in 2018 and 2019. That in 2018 did not suggest significant degeneration in the lumbar spine, whereas that in 2019 described the lumbar condition as most likely degenerative. The appellant submits the report of the whole body scan in 2012 did not mention lumbar spine degeneration. The appellant sets out the reasons at [194] to [198], [202], and [205] to [206]. Those are passages that refer to submissions made by the appellant before the Arbitrator, they are set out without further comment.[100]
[100] Cover letter, pp 12–13.
Respondent’s submissions
The respondent quotes from Raulston and other decisions which deal with the scope of an appeal pursuant to s 352(5) of the 1998 Act (see [17] to [20] above). The respondent relies on the way in which the Arbitrator dealt with the complaint of right foot pain on 8 January 2010, and of alleged radiculopathy on 22 November 2009. The respondent disputes the appellant’s argument that Dr Abdalla did not record lumbar complaints until 17 September 2012, as the doctor was concentrating on the upper limb complaints. It submits there is no evidence to that effect, and no report from Dr Abdalla to support that submission. It submits there is no document or other evidence that directly supports the submission.[101]
[101] Respondent’s submissions, [21]–[29].
The respondent submits that the submissions on medicolegal evidence repeat submissions made at first instance and repeating submissions from the arbitration does not support an error of fact, law or discretion. The respondent states that it relies on the Arbitrator’s conclusion that there was not a fair climate for acceptance of the medicolegal evidence dealing with the lumbar spine. The respondent states that it disputes the appellant’s submissions under the heading of other “important points”.[102]
Consideration
[102] Respondent’s submissions, [31]–[32].
The complaint of foot pain in 2010
The appellant’s argument described at [96] above was made to the Arbitrator, who dealt with it in her reasons at [216]. The argument is discussed above at [74] to [76]. In short, the appellant complained to Dr Abdalla of pain in the dorsum of the right foot on 8 January 2010. There was a single mention of this complaint in the notes, the doctor recommending Deep Heat, Panadol and Nurofen.[103] The appellant underwent a CT scan of the lumbosacral spine on 24 September 2012[104] which showed mild disc bulging at L3/4 and L4/5, and an annular disc bulge at L5/S1. The appellant, addressing the Arbitrator, referred to a conversation with his general practitioner in 2012, after MRI scans that revealed cervical spine pathology. The appellant said the general practitioner referred to his manual work, and the previous right foot pain, and said “it will be better if we check your lumbar spine as well”.[105] The appellant said this led to the lumbar CT scan dated 24 September 2012.
[103] ARD, p 217.
[104] ARD, p 253.
[105] T 28.34–29.19.
The Arbitrator’s reasons at [216] say:
I accept that on 8 January 2010 the [appellant] reported pains in his right foot to Dr Abdalla. Examination revealed a tender dorsum and the [appellant] was referred for an x-ray of the foot. There is, however, no evidence of further investigations or treatment of those symptoms other than deep heat and Nurofen. The symptoms were not reported again during the period of the [appellant’s] employment. Although the [appellant] has more recently reported symptoms of lower limb radiculopathy and foot drop in association with his lumbar spine condition, there is no opinion in the medical evidence that the symptoms reported on 8 January 2010 were associated with a lumbar spine condition as opposed to some other condition.
The Arbitrator was clearly alive to the point the appellant sought to make, that right foot pain in January 2010 could arguably have been a symptom of lumbar pathology which was not diagnosed until the CT scan performed about two and a half years later. The appellant on appeal restates the same argument that was made and rejected at the arbitration hearing. Whether the appellant’s right foot symptoms on 8 January 2010 (which were reported on one occasion) resulted from a lumbar abnormality that was not diagnosed until a CT scan about two and a half years later, was essentially a medical question. It could not be appropriately answered on the basis of common knowledge and experience. The appellant did not place medical evidence before the Arbitrator dealing with that causal question. It could not have been appropriately established by reference to the Wikipedia entry. The Arbitrator gave reasons for the view she formed, which was both open and appropriate on the evidence. “Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[106] The appellant has not demonstrated error, consistent with the principles that govern appeals pursuant to s 352(5) of the 1998 Act, in how the Arbitrator dealt with this evidence.
[106] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
The complaint of respiratory symptoms in 2009
The appellant refers to a complaint of respiratory symptoms around November 2009 (see [97] to [98] above). He now submits that at that time he felt “unusual in the whole of [his] body”.
There is an email from the appellant to Mr Hapuwida (his office manager) dated 22 November 2009.[107] It states that the appellant had worked four days in the Ibis Darling Harbour in the previous week, and “got [sore] throat, running nose and sneezing while working. Something can be there in their environment which is allergen for me.” The appellant said that he developed the same problem while working on level 8 of the Novotel Darling Harbour, a smoking level. He now submits that at the time he thought that it was an “allergic problem”. He submits that, after developing symptoms in his right foot and upper limbs, he understood the “unusual feelings were numbness”. He submits this indicated radiculopathy in the cervical and lumbar spine at that time.
[107] Reply, [86].
The Arbitrator dealt with this aspect of the evidence at [215] of the reasons (see [97] above). She noted that the appellant’s more recent view of the symptoms, that they were the product of radiculopathy, was formed with the benefit of hindsight. She noted there was no support in any of the medical evidence for the appellant’s later characterisation of those symptoms as radiculopathy. It is apparent that the Arbitrator did not accept the appellant’s submission on the nature of these symptoms. The appellant’s submission was that a complaint of respiratory symptoms, accompanied by “unusual feelings” that at some unspecified later time were thought to be numbness, was consistent with symptoms of radiculopathy in both the lumbar and cervical regions of the spine. This was unaccompanied by medical opinion to support it. The proposition is not self-evident, it is not “within the realm of common knowledge and experience”.[108] The Arbitrator would in my view have erred in accepting the proposition in the absence of suitable medical evidence to support it. The approach she took was both open to her and appropriate. The appellant has not demonstrated any error of fact, law or discretion in how the Arbitrator dealt with this evidence.
[108] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724, cited by McColl JA in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [91]).
The reference to back pain that started at work years ago
There is reference in the reasons at [246] (see [99] above) to Dr Abdalla receiving a history of back pain that started ‘at work years ago’. The Arbitrator said “[i]t is not, however, clear what work this was in reference to”. The appellant’s statement dated 31 July 2012 referred to the appellant working in Australia as a room attendant with Empire Hospitality from May 2006 to May 2008, before he worked with the respondent.[109]
[109] Reply, p 33.
The appellant submits on appeal that the reference could only have been to symptoms with the respondent as he did not have back symptoms before working with the respondent (see [100] above). The appellant’s submission on appeal, dealing with this issue, is inconsistent with other evidence that was before the Arbitrator. Whilst there are no recorded lumbar complaints during the appellant’s employment with the respondent, the Arbitrator did refer to a reference to lumbar complaint prior to that employment (see [37] above). Dr Guirgis’s report dated 29 October 2020 refers to a history of mild backache at the end of the working day, which would pass with rest, when the appellant worked with Empire Hospitality, before he worked with the respondent.[110] The Arbitrator’s reference to uncertainty on the evidence, regarding the employer’s identity when the appellant had back pain “at work years ago”, was consistent with the evidence before her. She did not err in this regard.
[110] ARD, p 13.
Complaints of back pain to Dr Abdalla
The appellant refers to the reasons at [100] which state:
“On 17 September 2012 the [appellant] first reported back pains to Dr Abdalla who recorded:
‘Back pains with lifting and cleaning at home
pain started at work years ago
difficulty in moving back, and in walking
O/E tender L/S spine
painful restricted movements
R/ voltaren emulgel, Panadol, nurofenDiagnostic Imaging requested: CT Lumbar spine’.”
The appellant resigned from the respondent on 11 October 2010.[111] It is recorded that his last day of work was on 7 October 2010.[112] The Arbitrator carefully summarised the medical evidence, including the complaints from time to time. These are recorded in the reasons from [60] onwards. There was a right foot complaint on 8 January 2010, which is discussed above. Dr Abdalla recorded upper limb complaints from 6 August 2010. On 8 October 2010 (shortly prior to the resignation), Dr Abdalla recorded complaints involving pain and restricted movements in the hands. Complaints continued thereafter involving the upper limbs, but not the back. There were complaints of dizziness and skin lesions on 12 August 2011 and 14 October 2011 respectively. On 13 April 2012, there was a complaint of pain and tenderness with restricted movements in the neck, at which point there was a referral to Dr Maniam. Recorded complaints thereafter involved the upper limbs and the neck. A CT scan on 8 May 2012 showed disc pathology from C3/4 to C6/7. The detailed summary of treatment thereafter continues, with symptoms essentially involving the neck and upper limbs. This includes material from Dr Maniam (to whom the appellant was referred for treatment), Job Capacity Assessment Reports for Centrelink, and Dr Abdalla. The Arbitrator’s careful summary was consistent with the evidence before her. The first recorded complaint of lumbar symptoms made to a treating practitioner was to Dr Abdalla on 17 September 2012. It is noteworthy that Dr Maniam, to whom the appellant was referred for treatment, and the Job Capacity Assessments, similarly had no reference to back complaints until September 2012, when complaints were made to Dr Abdalla and Dr Dias at about the same time.
[111] ARD, p 280.
[112] Reasons, [68].
The appellant’s submissions on appeal, dealing with this issue, assert that he complained to Dr Abdalla of back symptoms “on several occasions before” 17 September 2012. There is no further evidence referred to in support of this. The circumstances, the substance of such complaints, or when they were made are not identified. The appellant proffers a possible reason, “[t]his might be due to that my upper limb symptoms were so severe which led him to concentrate on upper limb ignoring my back problem”.[113] This remark is “speculation” which is inconsistent with the requirements of r 73 of the 2021 Rules and does not assist the appellant.
[113] Cover letter, p 8.
The appellant’s submissions on this issue do not identify error. The appellant simply makes an assertion in the course of his submissions which is without specificity and without appropriate evidentiary foundation. The appellant does not identify appealable error.
The evidence of ‘nature and conditions of employment’
The appellant submits the Arbitrator determined that the cervical spine injury was due to the nature and conditions of his employment. If the cervical injury was caused by the nature and conditions of employment, then why are the nature and conditions of that employment not responsible for the lumbar injury?[114]
[114] Cover letter, p 8.
The rhetorical question asked immediately above does not seek to identify relevant error, it merely seeks to argue with the result. The evidence regarding injury to the cervical spine and the lumbar spine was different. The respective injury issues were dealt with in detail.
The appellant submits his superannuation fund (arranged by the respondent) with total and permanent disability insurance classed his occupation as “Heavy Manual (unskilled)”. The appellant refers to the Canadian article, which describes risk factors in housekeeping work.[115] These documents were before the Arbitrator at the arbitration.[116] How an occupational group is identified by a superannuation fund is of no apparent relevance to whether specific activities in a specific job caused injury. The respondent made valid points before the Arbitrator regarding why the Canadian article was of limited assistance. The appellant does not seek to identify error by reference to these documents or how the Arbitrator dealt with them.
[115] Cover letter, pp 8–9.
[116] Reasons, [19].
The appellant refers to the reasons at [209] and argues point by point with the accuracy of the description of his duties set out there.[117] Paragraph [209] of the reasons was where the Arbitrator summarised points made by the respondent regarding the appellant’s duties. It does not include findings of the Arbitrator. The Arbitrator considered the evidence regarding the appellant’s duties in some detail and made findings on this topic at [229] to [230] of her reasons. She concluded that some of the tasks performed “would be considered light”, other tasks “could be described as moderately heavy and involving awkward positions, overhead work and reaching”. She accepted there was “indirect pressure to work quickly”. The appellant does not allege any specific error in the Arbitrator’s analysis of the evidence relating to the duties and her findings in that regard. The appeal is restricted to the identification of error of fact, law or discretion.
[117] Cover letter, p 9.
The appellant has not, in his submissions on the ‘nature and conditions of employment’, identified error of fact, law or discretion.
The medicolegal evidence
The appellant sets out the passage from Dr Guirgis’s report dated 29 October 2020, quoted at [54] above, subject to some minor changes (it is expressed in the first person and includes reference to the doctor’s assessment of 10 per cent whole person impairment in respect of the lumbar spine). He quotes passages from the report of Dr Dias dated 30 November 2020, again expressed in the first person. The doctor said that the employment with the respondent was a contributing factor to the lumbar and cervical spine conditions, that the employment was a substantial contributing factor to the injury, and that the appellant suffered five per cent whole person impairment in respect of the lumbar spine injury. The appellant quotes from parts of Dr O’Neill’s report dated 28 September 2018, largely restricted to the doctor’s assessment of whole person impairment. The appellant submits:
“So the determination will be - ‘The worker sustained injury to his [lumbar] spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(i) of the Workers Compensation Act 1987’”.[118]
[118] Cover letter, pp 10–11.
Dr O’Neill’s report is not in evidence. The appellant’s submissions under this heading do not extend beyond the statement above, describing the finding that he requests be made. There is no submission on the presence of appealable error.
‘Other important points mentioned in the determination’
The appellant refers to the reasons at [125] and [178]. He refers to the Arbitrator’s reference to Dr Pope’s view that “the lumbar condition was most likely degenerative”. He submits the “respondent’s lawyer” demanded that his solicitor obtain the opinion of the treating specialist. He submits that Dr Pope’s opinion regarding the degenerative nature of the lumbar spine was “quite the opposite” of the contents of Dr Pope’s opinion in “the report of July 2018”. The appellant refers to a description of the findings on MRI scan taken from the 2018 report. The appellant refers to Dr Pope’s description of an MRI of the lumbar spine, in which the doctor referred to disc bulging at L3/4, L4/5 and L5/S1, with “no Modic changes, no pars defects or spondylolisthesis”. The appellant submits this showed “no significant degeneration in my [lumbar] spine”.
The appellant refers to no medical opinion to support an argument that the changes identified by Dr Pope are not consistent with a degenerative condition of the lumbar spine. Such an opinion would be inconsistent with the medical evidence overall, including that of Dr Guirgis and Dr Dias on which the appellant relied. The appellant refers to the whole body scan in 2012, saying that it did not mention the lumbar spine. He submits it mentions the hip joint which is “very near to [lumbar] spine”, and if there was “any significant degeneration in [lumbar] spine they would mention it in that report”.[119] The appellant does not refer to any medical evidence in support of this proposition. The submissions under this heading deal with whether there was error in the Arbitrator’s fact finding regarding the presence of degenerative changes in the lumbar spine. This is a topic that has been dealt with in these reasons previously. The view the Arbitrator took was properly available to her on the evidence, in particular the medical evidence, overall. The appellant has not demonstrated error of fact, law or discretion within the meaning of s 352(5) of the 1998 Act.
[119] Cover letter, p 12.
The appellant then sets out, without further comment, the Arbitrator’s reasons at [194]–[198], [202] and [205] to [206]. These are paragraphs in which the Arbitrator summarises some of the submissions made before her by the appellant.[120] The appellant does not, in this part of his appeal, make submissions about these topics. It is not here submitted that the Arbitrator failed to deal with these matters or dealt with them erroneously. The above cannot be usefully dealt with as submissions on the appeal, and indeed there is no submission that they should be viewed that way. There is nothing in the repeating of these parts of the Arbitrator’s reasons that advances the appellant’s case. The repetition of submissions previously advanced at first instance, without any proper attempt to identify error, has been criticised as “unhelpful and unsatisfactory”.[121]
[120] Cover letter, pp 12–13.
[121] JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17, [144].
CONCLUSION
The appellant’s arguments in Ground No. 2 have failed.
Both grounds of appeal having failed, the appeal fails.
DECISION
The Arbitrator’s Certificate of Determination dated 24 February 2021 is confirmed.
Michael Snell
DEPUTY PRESIDENT
15 November 2021
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