JB Metropolitan Distributors Pty Ltd v Kitanoski

[2016] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17
APPELLANT:	JB Metropolitan Distributors Pty Ltd
RESPONDENT:	Mitko Kitanoski
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-2777/13
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	7 October 2015
DATE OF APPEAL DECISION:	3 March 2016
SUBJECT MATTER OF DECISION:	Nature and extent of conceded head injury; assessment of expert evidence; acceptance of evidence of psychiatrists over neurosurgeons; whether psychological injury a primary psychological injury or a secondary psychological injury; whether claimant discharged the onus of proof; relevance of principles in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; whether incapacity resulted from accepted injury; causation; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; attempt to conduct appeal as a rehearing; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; s 65A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers

REPRESENTATION:	Appellant:	HWL Ebsworth
Respondent:	Martin Bell & Co Solicitors
ORDERS MADE ON APPEAL:	1.       Save for the Arbitrator’s finding that the applicant worker suffered a primary psychological injury, which is revoked, the determination of 7 October 2015 is confirmed. 2.       The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

1. The appellant has challenged the Arbitrator’s findings that the worker suffered a significant head injury when he fell at work on 10 May 2004, that that injury resulted in a primary psychological injury in the form of a cerebellar dysfunction and in the form of a post concussive syndrome, and the Arbitrator’s approach to the issues of onus of proof, injury, causation and incapacity. For the reasons explained below, save for the finding that the worker suffered a primary psychological injury, which has not affected the outcome, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

1. The respondent worker, Mitko Kitanoski, was born in Macedonia in 1963. He came to Australia in November 1993 and started work as a packer for the appellant employer, JB Metropolitan Distributors Pty Ltd, in February 2000.

2. On 10 May 2004, Mr Kitanoski tripped and fell backwards onto a concrete floor, striking his head (the fall). He possibly had a brief period of loss of consciousness, though the evidence of the length of that loss of consciousness, if any, is conflicting. He was taken by ambulance to Liverpool Hospital where a CT scan of his head and neck revealed no damage. After a brief period of observation, he was discharged.

3. The appellant’s insurer accepted liability for the fall and paid voluntary compensation until 15 August 2006. The insurer denied liability at that time on the grounds that Mr Kitanoski had recovered from the effects of the injury and was no longer incapacitated. It did not deny that he had received an injury.

4. In an amended Application to Resolve a Dispute (the Application) lodged with the Commission on 6 May 2014, Mr Kitanoski alleged that he suffered the following injuries in the fall:

   •      Head injury

   •       Severe back injury

   •       Lumbar spine

   •       Loss of consciousness

   •       Neck

   •       Cervical spine

   •       Vestibular injury

   •       Consequential stomach and epigastric disorder due to pain medication consumption

   •       Anxiety and depression

   •       Neurological disability

5. Mr Kitanoski claimed weekly compensation from 15 August 2006 to 31 December 2012, compensation for hospital and medical expenses, and compensation for permanent impairment as a result of injury to his cervical spine, gastrointestinal system and lumbar spine.

6. The Registrar referred the claim for compensation for permanent impairment to an Approved Medical Specialist (AMS), Dr Kumar. Dr Kumar issued a Medical Assessment Certificate (MAC) on 12 August 2014, in which he found that Mr Kitanoski had no whole person impairment as a result of injury to his cervical spine, lumbar spine, or his upper or lower digestive tract as a result of the injuries sustained in the fall. A Medical Appeal Panel confirmed this finding on 12 May 2015.

7. It is agreed that the claim is to be determined under the Workers Compensation Act 1987 (the 1987 Act) as it was prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.

8. In a reserved decision, delivered on 7 October 2015, the Arbitrator accepted the evidence from Mr Kitanoski’s treating psychiatrist, Dr Sokolovic, that, as a result of the head injury received in the fall, Mr Kitanoski suffers a cerebellar dysfunction. This conclusion was said to be supported by the evidence from Mr Kitanoski’s qualified psychiatrist, Dr Ann Stephenson, who diagnosed (among other conditions) a post concussive syndrome. The Arbitrator found Mr Kitanoski to be totally unfit for work since 15 August 2006 and entitled to weekly compensation up to 31 December 2012.

9. Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination on 7 October 2015, in the following terms:

   “1.     The respondent shall pay to the applicant the following weekly amounts of compensation pursuant to ss.37(1)(a)(i) and s.37(1)(c)(i) 1987 Act as preserved:-

   •       15/08/2006 – 30/09/2006      347.90

   +146.60

   •       1/10/2006 – 31/03/2007        354.40

   +149.30

   •       01/04/2007 – 30/09/2007      361.30

   +152.20

   •       01/10/2007 – 31/03/2008      367.70

   +154.90

   •       01/04/2008 – 30/09/2008      374.90

   +158

   •       01/10/2008 – 31/03/2009      381.40

   +160.70

   •       01/04/2009 – 30/09/2009      389.10

   +164.90

   •       01/10/2009 – 31/03/2010      396.10

   •       01/04/2010 – 30/09/2010      403.70

   •       01/10/2010 – 31/03/2011      409.10

   •       01/04/2012 – 30/09/2012      432.50

   •       01/10/2012 – 31/12/2012      439.50

   2.I make a general award in respect of those s.60 expenses which are payable pursuant to the provisions of Schedule 6, Pt 19H, Division 3, Clause 17 of the 1987 Act.

   3.The respondent will pay the applicant’s costs as agreed or assessed.  I find this matter to be complex and order an uplift of 20 percent.”

10. The employer has appealed.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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’s solicitor, Mr Timothy Ainsworth, submitted that in light of the volume of evidence in dispute and the issues in the appeal, the Presidential member to whom the appeal is allocated “will be assisted by oral submissions”. Therefore, the matter is “not suitable to be dealt with on the papers”. Counsel for Mr Kitanoski, Mr Luke Morgan, submitted that the matter is capable of being dealt with on the papers and does not require an oral hearing.

3. I do not accept that an oral hearing is required or necessary for the proper determination of the appeal. Each side has had every opportunity to make detailed submissions on the issues in dispute and has done so. The issues are within a narrow compass and are capable of resolution without an oral hearing.

4. Having regard to Practice Directions Nos 1 and 6, and the documents that are before me, the appeal can proceed to be determined on the basis of these documents, and 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.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

   (a)     finding (at [90]) that Mr Kitanoski “had undergone a significant injury to his head” (significant head injury);

   (b)     finding that “cerebellar dysfunction in the form of a post concussive syndrome” was a primary psychological injury (primary psychological injury);

   (c)     his approach to Mr Kitanoski’s onus of proof (onus of proof), and

   (d)     his application of his “discretion in the manner in which [he] approached and distinguished evidence as to injury, causation and incapacity” (injury, causation and incapacity).

SIGNIFICANT HEAD INJURY

Factual background and the Arbitrator’s reasons

1. The ambulance report in evidence includes the following under “history”:

   “c/t ♂ fallen over & hit head.

   O/A – Pt laying on cement floor. Pt @ work packing boxes. Pt states was carrying boxes when tripped over falling & hitting back of head. Witness’ state nil LOC. Pt complaining of blurred vision & nausea, pain to back of head nil swelling, deformity or laceration, nil complaints of neck pain. Nil sig [sic, significant] PMHy [past medical history]

   o/e Pt alert but disoriented, pt not orientated to time, place or person initially –

   GCS [Glasgow Coma Scale] 14 PEARL Nil complaints of numbness or tingling in limbs, good & equal strength in all limbs, nil deficits. En route Pt GCS improved & ↑ to 15 nil complaints of neck pain. Pt transported for further assessment.”

2. Under “chief complaint”, the ambulance report recorded “HEAD INJURY”.

3. The Liverpool Hospital report, prepared by Dr Anna Heald, registrar, on 10 May 2004, recorded that Mr Kitanoski presented following a fall at work when he tripped while carrying a heavy box and “landed backwards onto concrete flooring”. The diagnosis was “CONCUSSION, ? LOSS OF CONSCIOUSNESS”. The report added, among other things, that:

   “He possibly had a brief LOC, and was initially very confused and disorientated. He felt nauseous, had blured [sic] vision and was c/o an occipital headache and neck pain.”

4. The evidence from Mr Kitanoski’s general practitioner at the time of the fall, Dr Manette Tellis, in a report of 13 September 2005, included a history that Mr Kitanoski was unconscious at the time of his fall and had shaking of all his limbs. She recounted her consultations with Mr Kitanoski until 4 July 2005, when she ceased to be his general practitioner. During that period, Mr Kitanoski’s complaints were predominantly of headaches, dizziness, sleep deprivation, nightmares, and neck and back pain.

5. After quoting the passage from the ambulance report reproduced above, which I have corrected for typing errors, the Arbitrator said, at [86]–[87]:

   “It is of some interest that no specialist in this matter referred to the full detail of this contemporaneous account. Whilst some noted part of the notes, none commented on the disorientation of [Mr Kitanoski], nor the fact that his Glasgow Coma score [sic] was clearly not normal at the scene. (The initials ‘ct’ may mean ‘comatose,’ although I refrain from making such a finding in the absence of evidence). I have some reservations therefore as to their opinions.

   … I am satisfied that, although [Mr Kitanoski] appeared to have returned to normal by the time he was released from Liverpool Hospital at 2am on 5 February [sic, May] 2004, the ambulance officer’s notes demonstrate that at the time [Mr Kitanoski] had been significantly affected by the blow he sustained to the back of his head.”

6. At [90], the Arbitrator stated:

   “In my view the initial report by the Ambulance Service on the state of [Mr Kitanoski’s] awareness lends support to the theory advanced by both Dr Sokolovic and Dr Stephenson that [Mr Kitanoski] had undergone a significant injury to his head, which caused a cerebella[r] dysfunction in the form of a post concussive syndrome.”

Submissions

1. After referring to the Arbitrator’s observations at [86], the appellant submitted that “c/t” was a shorthand for “call out” and that there was no reasonable basis for the Arbitrator to “surmise that ‘c/t’ might be short for ‘comatose’”. It was clear from the ambulance report that the ambulance officers did not see Mr Kitanoski unconscious. The appellant submitted that the ambulance report showed no more than that Mr Kitanoski was “a bit disoriented” on examination. A GCS score of 14 was noted and Mr Kitanoski’s “disorientation resolved en route to the hospital, such that he had a GCS score of 15”.

2. The appellant submitted that the Arbitrator’s decision was affected by an error in so far as he “considered the ambulance officers notes to be supportive of subsequent doctors’ opinions that [Mr Kitanoski] had undergone a significant injury to his head”. The Arbitrator commenced a “discussion” at [62] with the correct observation that “those with an orthopaedic or neurological specialty are all satisfied that there was no organic basis for [Mr Kitanoski’s] complaints”. The appellant noted that the CT scan, MRI and EEG were unable to identify any organic injury to Mr Kitanoski’s skull or brain. It contended that the Arbitrator’s error in his use of the ambulance report has led him, “more generally”, into error.

Discussion and findings

1. I do not accept the appellant’s submissions.

2. The appellant’s reference to “c/t” is irrelevant. The Arbitrator merely observed that “c/t” “may” mean “comatose”, but he expressly refrained from making such a finding in the absence of evidence. It follows that the meaning of “c/t” played no part in the Arbitrator’s determination.

3. It is accepted that the ambulance officers did not see Mr Kitanoski unconscious. The Arbitrator did not suggest that they had. The submission that the ambulance report showed no more than Mr Kitanoski being “a bit disoriented” was not an accurate summary of the report. The report also recorded that Mr Kitanoski was “not oriented to time, place or person initially”. It also recorded, as the Arbitrator noted, that Mr Kitanoski’s GCS was initially 14, which was “not normal”, and that it improved to 15.

4. The Arbitrator did not rely solely on the ambulance report when considering the severity of Mr Kitanoski’s head injury. He also referred to the notes from Liverpool Hospital, which recorded that Mr Kitanoski was “initially very confused and disorientated”, that he “felt nauseous”, had “blured [sic] vision” and complained of an “occipital headache”, and the report from Dr Tellis, which recorded that Mr Kitanoski had, until she ceased to be his general practitioner in July 2005, complained of, among other things, headaches and dizziness.

5. The use of the word “significant” to describe Mr Kitanoski’s head injury was appropriate, and consistent with the evidence. It is a qualitative expression that can cover a range of conditions. It is not to the point that the CT and MRI scans did not reveal any abnormality. Mr Kitanoski fell and struck his head on a concrete floor. He may have suffered a brief period of loss of consciousness, but definitely suffered concussion. Since the fall, he has consistently complained of headaches (and other symptoms).

6. The evidence well justified the Arbitrator’s observation (at [87]) that the ambulance report demonstrated that, immediately after the fall, Mr Kitanoski had been “significantly affected by the blow he sustained to the back of his head”. He was also justified in stating (at [90]) that the ambulance report “lends support” to the theory advanced by Dr Sokolovic and Dr Stephenson that Mr Kitanoski had “undergone a significant injury to his head”. His statements were open on the evidence and disclosed no error.

PRIMARY PSYCHOLOGICAL INJURY

Factual background and the Arbitrator’s reasons

1. The following factual background largely follows the Arbitrator’s helpful summary of the relevant evidence.

2. The Arbitrator said (at [62]) that it was “tolerably clear that those with an orthopaedic or neurological specialty are all satisfied that there was no organic basis for [Mr Kitanoski’s] complaints”. He did not accept a submission by Mr Kitanoski’s then counsel that Mr Kitanoski’s orthopaedic injuries had been mismanaged. However, the Arbitrator added (at [63]) that “what is clear and unchallenged in the histories is that the fall of 10 February [sic, May] changed [Mr Kitanoski’s] life” and that there was a consistent pattern to his complaints of headaches and dizziness that was “generally echoed to most medical practitioner[s] that he saw”.

3. The Arbitrator said (at [63]) that the clearest record came from Dr Sokolovic, who started treating Mr Kitanoski in February 2007. In his report of 22 April 2009, Dr Sokolovic quoted from a report from Dr Ristevski, Mr Kitanoski’s then general practitioner, dated 18 February 2008. That report recorded Mr Kitanoski’s symptoms as including headaches, neck aches, feeling nervous, having problems sleeping, not being able to relax, not feeling happy, feeling irritable, feeling confused and like he had lost interest in all activities.

4. Dr Sokolovic recorded that Mr Kitanoski complained to him of the problems recorded in Dr Ristevski’s report, but the complaints (to Dr Sokolovic) were vaguely defined, and gave the impression of general psychosocial dysfunction. For that reason, he labelled his condition “chronic post-concussional syndrome with chronic neck pain, headache and depression, giving the impression of neurasthenic syndrome”.

5. Dr Sokolovic’s initial treatment, which was mainly cognitive behaviour therapy, did not give the expected results. Attempts at rehabilitation were also unsuccessful. This led Dr Sokolovic to approach Mr Kitanoski’s family to obtain more appropriate information about his social functioning and behaviour. He thereafter conducted home visits, the first on 19 June 2008.

6. Dr Sokolovic reported that Mr Kitanoski’s then wife and his sons stated that, before the fall, Mr Kitanoski was a devoted father and husband. He had been sociable and contributed to the comfortable home and family lifestyle. Since the fall, the family members had noticed a gradual change in his behaviour, whereby he became irritable and lost his previously harmonious relationship with the family. Mrs Kitanoski impressed Dr Sokolovic as an intelligent, socially responsible person. He learnt that when the family came to Australia, Mr Kitanoski had been a diligent person, learning English and quickly obtaining employment.

7. Dr Sokolovic was told that, before the fall, Mr Kitanoski was happy with his job with the appellant, that he had gained a promotion (becoming a foreman) and was optimistic and happy. However, according to Mrs Kitanoski, after the fall, Mr Kitanoski’s and his whole family’s situation was “turned upside down”. Mr Kitanoski was suffering pain in his neck, frequent headaches, and he “became an unusual, different person”.

8. Not only did Mr Kitanoski become estranged from his family, but he also became ostracised from the Macedonian community, in which he had previously been very popular. Mrs Kitanoski noticed that her husband’s English skills deteriorated and so had his ability to communicate in his mother tongue. Mrs Kitanoski said that Mr Kitanoski began to consume alcohol as never before, became aggressive, uncooperative and psycho-socially dysfunctional. She spoke of incidents when he attacked and beat her and their sons. Because of Mr Kitanoski’s aggressive behaviour towards his wife in January 2008, the police arrested him. Mrs Kitanoski decided that the relationship could not continue and the marriage broke down at or about this time.

9. Dr Sokolovic considered that, based on scientific facts, paying attention to Mr Kitanoski having suffered concussion in the accident, it was “plausible” that his symptoms could reasonably be “related to a disturbance in cerebellum function”. He felt that Mr Kitanoski’s disturbed behaviour was “most likely due to cerebellar dysfunction, resulting in disturbances in his psychosocial functioning, deteriorating use of both English and Macedonian languages, and difficulties in learning and adjusting to situations that were never a problem for him before the injury”.

1. The Arbitrator said (at [75]) that this evidence gave “the most cogent and plausible reason for [Mr Kitanoski’s] condition” and he accepted “the evidence reported to Dr Sokolovic as being a probable account of the facts”. He found it remarkable that the fundamental change in Mr Kitanoski’s personality “was not adverted to in other medical reports”. He felt that the failure by various (medical) practitioners “to make that connection” weakened the weight he could give to those opinions.

2. The Arbitrator also found the report of Dr Stephenson to “be of some value” ([77]). Dr Stephenson’s history included an interview with Mr Kitanoski’s sister, Razmenka Ivanovska, who lived near him and looked after him. Ms Ivanovska confirmed significant behavioural changes in Mr Kitanoski since the fall in May 2004. The Arbitrator accepted (at [78]) that the radical change in Mr Kitanoski’s personality (after the fall) involved increased consumption of alcohol, violence, imprisonment, and the collapse of his marriage, which “contrast[ed] vividly with the picture painted of [Mr Kitanoski’s] personality prior to the injury”.

3. Dr Stephenson diagnosed Mr Kitanoski to be suffering from three conditions, noted by the Arbitrator at [79], as follows:

   “•     a Chronic Pain Disorder with Both Psychological Factors and a Generalised Medical (musculoskeletal/neurological) Condition,

   •       a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and

   •       a Post-concussion Syndrome, about which she said:-

   ‘While the nature, aetiology and prognosis of post-concussion syndrome are in the province of appropriate specialists, I draw your attention to a reference concerning this syndrome (Kaplan & Saddock, Comprehensive Textbook of Psychiatry/V Williams [and] Wilkins, 1989, p.184);

   POSTCONCUSSION SYNDROME

   As the name implies, this condition may follow relatively minor, as well as major, head injuries.

   The syndrome is characterized by one or a variety of neurological symptoms, most often headache and dizziness. Other syndromes [sic, symptoms] may involve fatigue, impairment of concentration and loss of work efficiency.

   Personality changes include irritability, emotional lability and depression, often with associated insomnia and decreased libido.

   Anxiety and frustration are common. Patients complain of impairment of memory and attention and have difficulty comprehending and formulating complex or abstract concepts.

   Postconcussion syndrome is difficult to evaluate because of the absence of accompanying objective neurological signs and normal laboratory studies.

   Most of the time, the symptoms have an occult neurophysiological mechanism rather than being solely an emotional phenomenon.

   Subtle abnormalities are often noted in studies of evoked potentials and in comprehensive neuropsychological tests.

   Evidence of axonal injury has been demonstrated with the electron microscope in experimental animals subjected to cerebral concussion, and in Ceretec cerebral perfusion studies.” (emphasis included in original)

4. The Arbitrator added (at [80]) the following quote from Dr Stephenson’s report:

   “[Mr Kitanoski] experiences irritability which is associated with anxiety and low frustration tolerance, while impairment of memory and attention together with difficulty in comprehension are readily apparent.

   A history of alcohol misuse/abuse has taken place in the context of a post-concussion syndrome which led to impetuosity and violence, Apprehended Violence Orders, brief imprisonment, court appearances and breakdown of marital/family relationships.”

5. Dr Stephenson conceded, as the Arbitrator noted, that “strictly speaking” post-concussion was a neurological condition, and recommended further evaluation by Dr Dowla, a neurologist, notwithstanding that the MRI and EEG were normal. This has not been done.

6. Dr Stephenson said that Mr Kitanoski’s condition was “substantially a result of the accident which occurred during the course of work on 10/5/2004 and its sequelae”. She noted that he had returned to work after a previous injury (a back injury in about 1995) and had continued to be occupationally employed for four to five years at the time of the injury in May 2004. Significantly, she added that, prior to the injury in May 2004, Mr Kitanoski was “well integrated in family and social life”.

7. The Arbitrator found Dr Stephenson’s opinion to be “supportive of those of Dr Sokolovic, who spoke of cerebella[r] dysfunction, caused by the same trauma” ([82]). He noted that Dr Stephenson gave a whole person impairment value of 21 per cent and that Dr Sokolovic gave a value of 19 per cent, both being satisfied that Mr Kitanoski suffered from psychiatric impairment as a result of this incident. The Arbitrator said that this evidence “tend[ed] to suggest that the injury was a primary injury, the psychiatric condition being part and parcel of the cerebella[r] dysfunction/post concussion syndrome” ([82]). (It is important to note that Dr Sokolovic assessed Mr Kitanoski’s whole person impairment “as a consequence of his accident of 10 May 2004”.)

8. The Arbitrator was satisfied that the opinions of Dr Sokolovic and Dr Stephenson “constitute an acceptable causal explanation for the condition of [Mr Kitanoski]” ([83]). He added (at [83]) that the orthopaedic injuries that Mr Kitanoski complained of were, in the opinion of the majority of the medical practitioners, “without an organic base, and reference has been made to a ‘functional overlay’, or the need for [Mr Kitanoski] to be evaluated by a psychiatrist”. The Arbitrator was satisfied that Mr Kitanoski has “suffered a primary psychological injury as a result of the blow to the back of his head when he fell backwards” ([84]) on 10 May 2004. He then explained why he did not accept the evidence from the appellant’s qualified doctors.

Submissions

1. The appellant submitted that the Arbitrator has not specifically found what primary psychological injury Mr Kitanoski sustained. It said that it seemed the Arbitrator found that Mr Kitanoski suffers from “cerebella[r] dysfunction in the form of a post concussive syndrome”, which are neurological conditions, not psychological conditions. It contended that there was no evidentiary basis for the Arbitrator’s finding of a primary psychological injury.

2. In addition, though it has not been identified as a separate ground of appeal, the appellant submitted that the Arbitrator erred in accepting Dr Sokolovic’s evidence in preference to evidence from its qualified neurologist, Professor Kiernan. It said that the Arbitrator considered that Professor Kiernan’s opinion “was based on an incorrect history”. The appellant considered that the Arbitrator’s “views in this regard to be affected by the error of fact noted above”. (This was a reference to the Arbitrator’s finding that Mr Kitanoski suffered a significant head injury when it is more likely, so the appellant submitted, that he “did not suffer a serious head injury and might not have lost consciousness”.)

3. The appellant submitted that the Arbitrator erred in rejecting Professor Kiernan’s evidence, because he relied on his clinical examination, whereas Dr Sokolovic referred to medical literature. It contended that, as a professor of neurology, Professor Kiernan is entitled to express an opinion on an alleged neurological condition without reference to any authority beyond himself and based on his examination of Mr Kitanoski. Professor Kiernan’s views were to be preferred to those of Dr Sokolovic on the question of the alleged cerebellar dysfunction.

4. The only evidence available to the Arbitrator from “relevant specialists”, according to the appellant, concluded that Mr Kitanoski had not suffered a cerebellar dysfunction, as did the reports on the relevant scans and investigations into the potential of such an injury.

5. Mr Morgan initially submitted that it was open to the Arbitrator to make a finding that Mr Kitanoski had suffered a psychological injury consistent with the opinions expressed by Dr Sokolovic and Dr Stephenson, though no such finding was made. As I found that submission unhelpful, I directed Mr Morgan to clarify the point he sought to make. In response, Mr Morgan submitted that the Arbitrator made a finding that Mr Kitanoski suffered “a psychological injury” (emphasis included in the submission) and that that finding was available to him.

6. I issued a further direction to Mr Morgan requesting that he identify the psychological injury he asserted the Arbitrator found Mr Kitanoski to have suffered, where he made that finding, the evidence in support of it, and if it was asserted that that psychological injury is a primary psychological injury.

7. Mr Morgan referred to the Arbitrator’s finding (at [84]) that Mr Kitanoski suffered a primary psychological injury as a result of the blow to the back of his head when he fell backwards on 10 February 2004 and to the Arbitrator’s discussion of the evidence from [62]–[84]. He said it was open to the Arbitrator to make the finding he made at [84]. He referred to the differential diagnoses made by Dr Stephenson (quoted by the Arbitrator at [79] and reproduced at [42] above) and that Dr Stephenson confirmed the causative link between her diagnosis and the fall.

Discussion and findings

1. This ground of appeal alleged that the Arbitrator erred in finding that “cerebellar dysfunction in the form of post concussive syndrome” was a primary psychological injury. The appellant’s submissions have raised two issues: first, whether there is any evidence of a primary psychological injury and, second, whether the Arbitrator erred in accepting Dr Sokolovic’s evidence over Professor Kiernan’s evidence. Those issues should have been properly identified as two separate and distinct grounds of appeal, with appropriate submissions addressing each one separately. It was unsatisfactory that that was not done. Nevertheless, I will deal with each issue. It is convenient to deal with the second issue first.

Acceptance of Dr Sokolovic’s evidence and rejection of Professor Kiernan’s evidence

1. The appellant’s complaints on this issue are without substance. The Arbitrator gave cogent and logical reasons, which were open on the evidence and involved no error, for accepting Dr Sokolovic’s evidence and for rejecting Professor Kiernan’s evidence.

2. The evidence from Dr Sokolovic was based partly on the history recorded by Dr Ristevski, but mainly on a detailed review of Mr Kitanoski’s “entire history”, taken with the assistance of Mrs Kitanoski. That history set out Mr Kitanoski’s pre and post injury personality and level of functioning. Dr Sokolovic also assumed that the fall caused Mr Kitanoski to “lose consciousness shortly”, and rendered him “confused for some time”. (I note that there is uncertainty about whether Mr Kitanoski lost consciousness. The Arbitrator was well aware of that fact and I do not believe it makes any difference to the weight to be attached to Dr Sokolovic’s opinion, which was based on the documented effects of the injury, and Mr Kitanoski’s pre and post-accident behaviour.)

3. Dr Sokolovic also took a history that, after Mr Kitanoski’s discharge from hospital, he had frequent, intensive treatment from Dr Tellis, who had great difficulty in improving his condition. Attempts at rehabilitation were unsuccessful. Dr Sokolovic was aware that Dr Ristevski “encountered the same problems in treatment” of Mr Kitanoski and that “all specialists[’] investigations didn’t find relevant somatic damages [sic] to relate to [Mr Kitanoski’s] disturbed behaviour”.

4. Dr Sokolovic also discussed with Mr Kitanoski the opinions of his initial treating neurologists, Dr Presgrave and Dr Cremer, who stated that they could find no reason for his disturbance. For this reason, Mr Kitanoski felt the need to “accentuate and act out various symptoms in their presence, in order to demonstrate the extreme suffering he felt, because he felt he required some form of treatment which was never rendered”.

5. On 14 August 2007, Dr Sokolovic recorded that the new regimen of treatment had a better effect, especially on Mr Kitanoski’s pain, but he remained disorganised in his behaviour, complaining of having difficulties in his balance and coping in social situations. He said that the reports from Dr Whetton, Mr Kitanoski’s first treating psychiatrist, Dr Presgrave and Dr Cremer appeared “reasonable”. However, none of these doctors ever mentioned that the injury, in which he fell backwards and hit the occipital area of his head, may have “caused a functional disturbance of his cerebellum”.

6. Dr Sokolovic added:

   “On the basis of brain science facts, paying special attention to [Mr Kitanoski’s] suffering from concussion in the accident, it was plausible that his symptoms could be reasonably be [sic] related to a disturbance in cerebellar function.”

7. Had Dr Sokolovic’s opinion stopped there, there may have been an issue as to whether Mr Kitanoski had discharged the onus of proof. It did not stop there.

8. As the Arbitrator noted at [74]–[75]:

   “74. Dr Sokolovic then referred to a number of articles relating to the cerebellum for authority for the proposition that he then advanced which was:

   ‘[Mr Kitanoski’s] disturbed behaviour is most likely due to cerebella[r] dysfunction, resulting in disturbances in his psycho-social functioning, deteriorating use of both English and Macedonian languages, and difficulties in learning and adjusting to situations that were never a problem for him before the injury.

   [Mr Kitanoski’s] investigation by various experts was mainly directed at his system of balance, rather than his complex and disturbed psycho-social behaviour. In this light[,] Dr Whetton’s psychiatric point of view can be seen as simplified, as it only related to rigid, formal psychiatric entities without consideration of [Mr Kitanoski’s] wider, more complex behaviour.’

   75.This evidence, it seems to me, gives the most cogent and plausible reason for [Mr Kitanoski’s] condition. I accept the evidence reported to Dr Sokolovic as being a probable account of the facts. It is remarkable that this fundamental change in personality was not adverted to in other medical reports, and the failure by the various Practitioners to make that connection I find to weaken the weight I can give to those opinions.” (footnotes omitted)

9. The Arbitrator returned to Dr Sokolovic’s evidence at [88], where he said:

   “… Dr Sokolovic referred to a number of scientific articles and based his opinion upon [Mr Kitanoski’s] distorted psychosocial functioning, his deteriorating use of both English and Macedonian languages, and [Mr Kitanoski’s] difficulties in learning and adjusting to situations that were never a problem to him before the injury.”

10. The Arbitrator’s acceptance of Dr Sokolovic’s evidence, which strongly supported Mr Kitanoski’s case, involved no error. Consistent with Fox v Percy [2003] HCA 22; 214 CLR 118 at [31], it was based on the apparent logic of events (comparing Mr Kitanoski’s pre and post-injury behaviour), contemporary materials (the ambulance report and the hospital records), which established that Mr Kitanoski suffered concussion when he struck his head in the fall, and the objectively established facts (Mr Kitanoski’s consistent complaints of headaches and other symptoms recorded by his general practitioners and others).

11. I now turn to the Arbitrator’s reasons for rejecting Professor Kiernan’s evidence.

12. Contrary to the appellant’s submission, the Arbitrator did not say that Professor Kiernan’s history was “incorrect”. He said that Professor Kiernan did not advert to Mr Kitanoski’s condition when the ambulance officers reached him at the scene. Thus, his history was incomplete. The Arbitrator was satisfied that the ambulance report demonstrated that, at the time, Mr Kitanoski had been “significantly affected by the blow he sustained to the back of his head” ([87]). For the reasons explained at [28]–[30] above, that finding was open on the evidence. The submission that Mr Kitanoski “did not suffer a serious head injury” does not advance the appellant’s position. Whether it is described as “serious” or “significant” is of little consequence. The Arbitrator had to determine the effect of that injury.

13. The submission that Mr Kitanoski “might not have lost consciousness” does not advance the appellant’s position on appeal. The Arbitrator was well aware that the accounts were not clear as to whether Mr Kitanoski actually lost consciousness and referred to that fact at [85]. He was entitled to note the fact that Professor Kiernan did not refer to Mr Kitanoski’s condition when the ambulance officers attended to him, which was relevant to the severity and significance of the head injury, and to the assessment of the potential consequences of the injury. However, on its own, this point was certainly not decisive and the Arbitrator did not treat it as if it was.

14. It may be accepted that, as a suitably qualified expert, Professor Kiernan was entitled to express an opinion on an alleged neurological condition without reference to any authority beyond himself. What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). However, the authorities are clear that an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89]). As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Securities and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports. None of these authorities assist the appellant.

15. The issue in the present appeal is not whether Professor Kiernan was entitled to express an opinion on the issue, but whether the Arbitrator erred in not accepting that opinion. In his assessment of the weight he gave to the competing medical opinions, the Arbitrator was entitled to consider the scientific explanations offered by the various experts. In doing so, he (correctly) noted that Dr Sokolovic referred to a number of scientific articles and based his opinion on Mr Kitanoski’s “distorted psychosocial functioning, his deteriorating use of both English and Macedonian languages, and [Mr Kitanoski’s] difficulties in learning and adjusting to situations that were never a problem to him before the injury” ([88]). (These matters were of particular significance, given the evidence from Mrs Kitanoski of her husband’s normal functioning before the fall.)

16. The Arbitrator added (at [89]) that Professor Kiernan did not engage with the issues identified in the preceding paragraph relating to Mr Kitanoski’s distorted psychosocial functioning and, did not (expressly) refer to or consider the medical science upon which Dr Sokolovic advanced his opinion, nor did Professor Kiernan consider the facts upon which it was based. In addition, Dr Stephenson’s opinion was supportive of Dr Sokolovic’s theory and there was no evidence from the appellant which “denie[d] the possibility of its being correct” ([89]).

17. The Arbitrator was entitled to take these matters into account in his assessment of the evidence. His rejection of Professor Kiernan’s evidence and acceptance of Dr Sokolovic’s evidence involved no error.

Whether Mr Kitanoski suffered a primary psychological injury

1. The Arbitrator found that Mr Kitanoski suffered a primary psychological injury because Dr Sokolovic and Dr Stephenson both assessed him to have a psychiatric impairment as a result of the incident. He added (at [82]) that, though that finding was not relevant to his determination, the evidence tended to “suggest that the injury was a primary injury, the psychiatric condition being part and parcel of the cerebella[r] dysfunction/post-concussion syndrome”. The Arbitrator’s reasoning and conclusion on this point was erroneous.

1. The phrase “primary psychological injury” is defined in s 65A(5) of the 1987 Act to mean “a psychological injury that is not a secondary psychological injury”. A secondary psychological injury is defined in s 65A(5) as “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.

2. When Mr Kitanoski fell on 10 May 2004, he suffered physical injuries to his head and neck. The Arbitrator found that the head injury caused a “cerebella[r] dysfunction in the form of a post concussive syndrome” ([90]). Dr Sokolovic stated that the blow to Mr Kitanoski’s head caused a functional disturbance of his cerebellum. Dr Sokolovic added that Mr Kitanoski’s symptoms, which included psychological symptoms, resulted from that disturbance. Those psychological symptoms are a consequence of, or secondary to, the physical injury to Mr Kitanoski’s head. It follows that Mr Kitanoski’s psychological symptoms that have resulted from the cerebellar dysfunction cannot be classified as a primary psychological injury.

3. The same conclusion follows from Dr Stephenson’s evidence. She expressly noted that post-concussion syndrome is a neurological condition. That is, it is a physical condition that was caused by Mr Kitanoski striking his head on the concrete floor when he fell. Personality change, including irritability, emotional lability and depression, among other things, are some of the symptoms of post-concussion syndrome. Those symptoms are a consequence of, or secondary to, the physical injury to Mr Kitanoski’s head. It follows that the psychological symptoms that have resulted from the post-concussion syndrome cannot be classified as a primary psychological injury.

4. Dr Stephenson’s reference to Mr Kitanoski suffering chronic pain disorder and chronic adjustment disorder with mixed anxiety and depressed mood does not assist. Dr Stephenson added that the chronic pain disorder was associated with both psychological factors and a general musculoskeletal/neurological condition and the chronic adjustment disorder with mixed anxiety and depressed mood was “reactive to loss of work, family and living conditions”. Thus, these conditions are also a consequence of, or secondary to, Mr Kitanoski’s physical injuries (or the sequelae to those injuries) and are not primary psychological injuries.

5. The Arbitrator’s statement that Mr Kitanoski’s psychiatric condition was “part and parcel of the cerebella[r] dysfunction/post-concussion syndrome” failed to acknowledge that cerebellar dysfunction and post-concussion syndrome are both physical conditions that manifest themselves (in part) in psychological symptoms. In other words, it failed to acknowledge that the psychiatric condition arose from, and was secondary to, the physical injuries and the sequelae to those injuries.

6. While the Arbitrator erred on this point, it is of no consequence to the outcome of the appeal. That is because, regardless of whether Mr Kitanoski’s injury is classified as a primary psychological injury or a secondary psychological injury, the Arbitrator found that his incapacity and need for treatment resulted from his work injury. For the reasons explained in this decision, that finding was open on the evidence and is upheld.

7. The finding that Mr Kitanoski suffered a secondary psychological injury, and not a primary psychological injury, merely means that he will have no entitlement to compensation for permanent impairment in respect of his psychological injury (s 65A(1) of the 1987 Act). (Not surprisingly, Mr Kitanoski had never claimed compensation for whole person impairment for a primary psychological injury.)

ONUS OF PROOF

The Arbitrator’s reasons

1. This ground of appeal relates to the Arbitrator’s statements at [91]–[92], where he said:

   “91. [Mr Kitanoski] relies upon the fact of his change of personality as being caused by the injury, which raises the question of the appropriate legal test regarding medical issues. In Woolworths Limited v Christopher-Coates, President Judge Keating referred to EMI (Aust) Limited v Bes and at [174] cited Herron CJ at 242:-

   ‘174  In Bes at 242 Herron CJ stated:

   ‘Much the same thesis is to be found in Ramsay v Watson in the High Court (108 CLR p 642) and I particularly refer to the passage in the joint judgment of their Honours at the foot of p 645. It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.’

   92.There is no evidence before me to say that such a connection is not possible, and the lay evidence from [Mr Kitanoski’s] family referred to by Dr Sokolovic, and that of [Mr Kitanoski’s] sister referred to by Dr Stephenson satisfies me that such a connection is probable. Although the form of that evidence might be viewed as inadmissible in an evidence based jurisdiction, s.354(2) [of the] 1998 Act empowers me to inform myself on any matter in such manner as I think appropriate and as the proper consideration of the matter before me permits. I have no reason to disbelieve these accounts, and place some weight on them. There is no relevant distinction in his Honour’s reference to a ‘death’ and a different personal injury.”

Submissions

1. The appellant submitted that the Arbitrator considered (at [91]–[92]) that “the relevant causal question for him to consider was whether [Mr Kitanoski’s] change of personality was caused by the injury”. The Arbitrator quoted from EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes), which he interpreted, according to the appellant, to mean that:

   “in the absence of evidence contradicting a possible connection between [Mr Kitanoski’s] incident of injury and his change in personality (by means of the neurological injury noted above) then, in light of that possible connection supported by references to comments made by family members to [Mr Kitanoski’s] medico-legal specialists, the Arbitrator could be satisfied that the possible connection was probable.”

2. The appellant submitted that the Arbitrator misapplied the law. Mr Kitanoski had the onus of proving that he had an incapacity and the need for medical treatment as a result of an injury. The Arbitrator found the injury to be a primary psychological injury of the nature of a cerebellar dysfunction or post-concussion syndrome.

3. The appellant understood the Arbitrator to say that Mr Kitanoski “satisfied his onus of proof if a connection could be drawn between a change in personality and the incident of injury”. The Arbitrator considered this connection to be proved by the possibility of Mr Kitanoski having cerebellar dysfunction (as suggested by Dr Sokolovic and Dr Stephenson) and reference in the reports from those doctors to Mr Kitanoski’s family members having observed a change in personality.

4. The appellant submitted that “the medical evidence raising the possibility of the connection is overcome by the more pertinent experts’ opinions on such a connection – in particular, [Professor] Kiernan’s opinion”.

5. In relation to the alleged lay evidentiary support for the possibility (of a connection – in line with Bes), the appellant contended that there was no lay evidence before the Arbitrator from Mr Kitanoski’s family members. There was evidence before him from medicolegal experts who saw Mr Kitanoski just under three years after his incident of injury (Dr Sokolovic) and over eight years after the incident of injury (Dr Stephenson). They referred to comments made to them by other people who attended examinations with Mr Kitanoski. Notwithstanding that the “Commission does not have strict rules of evidence”, the appellant submitted that “such second-hand opinion is insufficient for [Mr Kitanoski] to discharge his onus of proof and the evidence in this case does not sit squarely with the ratio decidendi in Bes”.

6. The appellant “observe[d]” that another expert expressed an opinion in relation to Mr Kitanoski’s alleged change in personality. That expert was Dr Burman, consultant psychiatrist qualified by the appellant, who considered any such change to be wholly attributable to Mr Kitanoski’s alcoholism.

Discussion and findings

1. I do not accept the appellant’s submissions.

2. I accept that Mr Kitanoski carried the onus of proof. Nothing in the Arbitrator’s decision suggests the contrary, or suggests that he reversed the onus. I also accept that the Arbitrator erred in finding that Mr Kitanoski suffered a primary psychological injury. However, as explained above, that error is of no consequence to the outcome of the appeal. The issue identified in this ground of appeal is whether the Arbitrator erred in his approach to the onus of proof. He did not.

3. It was open to the Arbitrator to accept Mr Kitanoski’s medical case without resort to Bes. That is because Dr Sokolovic’s evidence went much further than suggesting a “possible” connection between the fall and Mr Kitanoski’s symptoms. Though Dr Sokolovic initially said that, paying special attention to Mr Kitanoski having suffered from concussion in the fall, it was “plausible” that his symptoms could reasonably be due to a disturbance of the cerebella, he later said, in the same report, that Mr Kitanoski’s behaviour was “most likely due” to cerebellar dysfunction. If there were any doubt about the doctor’s opinion on causation, it was put to rest when he said that Mr Kitanoski’s impairment was “a consequence of his accident of 10 May 2004”.

4. Dr Stephenson also provided direct evidence on causation that went beyond suggesting a mere “possible” connection between Mr Kitanoski’s symptoms and the fall. Under the heading “Connection Between Client’s Injuries and the Accident”, she wrote:

   “While no psychological/psychiatric condition occurs without a degree of personal predisposition, Mr Kitanoski’s current condition is substantially a result of the accident which occurred during the course of work on 10/5/2004 and its sequelae.”

5. Dr Stephenson expressly noted that Mr Kitanoski had returned to work after a previous injury (in 1995) and had continued to be employed for four to five years at the time of the injury in May 2004. Significantly, she added that, prior to the injury in May 2004, Mr Kitanoski was “well integrated in family and social life”. This statement was consistent with Dr Sokolovic’s history and conclusion.

6. Bes only becomes relevant in a case where medical science says that there is a “possible” connection between the incident and the relevant condition for which compensation is claimed. In that situation, if medical science does not say that there is “no possible connection”, a judge after examining the evidence may decide that it is “probable”. This statement is consistent with the decision of Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [93], where his Honour explained that, in some cases, medical science cannot determine the existence of a causal relationship. As his Honour explained, such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility. The commonsense approach to causation at common law (which applies in workers’ compensation cases) is quite different from a scientist’s approach to causation.

7. The present case is not one where medical science was prepared to say that a connection between Mr Kitanoski’s condition and the fall was “a possible view”. The evidence accepted by the Arbitrator from Dr Sokolovic and Dr Stephenson was that Mr Kitanoski’s condition has resulted from the fall. Other doctors expressed a contrary view, which the Arbitrator considered and, for reasons given, did not accept.

8. It follows that it was not necessary to rely on the evidence from Mr Kitanoski’s family members to find that the causal connection between the condition and the fall was a probability and not merely a possibility. That is not to say that their evidence was irrelevant. The histories recorded by Dr Sokolovic and Dr Stephenson from Mr Kitanoski’s family were consistent with his complaints to his doctors after the fall.

9. More importantly, the histories were consistent with Mr Kitanoski suffering from cerebellar dysfunction and/or post-concussion syndrome as a result of the head injury received in the fall. The evidence from the family members did not (on its own) discharge the onus of proof, but formed an important part of the history upon which Dr Sokolovic and Dr Stephenson relied in reaching their conclusions on diagnosis and causation. The appellant’s doctors did not have that history. The Arbitrator was entitled to consider, and did consider, these matters in his assessment of the evidence.

10. The appellant’s submission that the medical evidence raising the possibility of a causal connection was overcome by the more pertinent experts’ opinions relied on by the appellant, in particular the opinion of Professor Kiernan, misses the point. For the reasons explained above (at [56]–[72]), the Arbitrator was entitled to accept the evidence from Dr Sokolovic and to reject Professor Kiernan’s evidence. Further, as the Arbitrator noted (at [92]), though it was not critical to the outcome, the appellant’s experts did not suggest that a causal connection between the fall and Mr Kitanoski’s symptoms was “not possible”; they merely did not accept such a connection.

11. The submission that there was no lay evidence before the Arbitrator is incorrect. As the Commission has pointed out in dozens of cases, statements in a medical history are evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225). The submission that the Commission does not have “strict rules of evidence” was also incorrect. The Commission “is not bound by the rules of evidence” (s 354(2) of the 1998 Act) and there is no prohibition on hearsay material and opinion evidence (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 per Allsop P (McColl JA agreeing) at [2]).

12. The relevance of the appellant’s reference to Dr Burman’s evidence is unclear. It was not expressly alleged that the Arbitrator erred in rejecting Dr Burman’s evidence, though that seems to be what is implied. I do not accept that submission.

13. Contrary to the appellant’s submission, Dr Burman did not say that any change in Mr Kitanoski’s personality was wholly attributable to Mr Kitanoski’s alcoholism. He said that “[n]o psychiatric diagnosis can be made when a patient is not telling the truth and this seems extremely likely in this case” (this was a reference to Mr Kitanoski’s history about his alcohol intake and the altercation with his wife that resulted in the police being called). He added, under “Final Diagnosis”:

    “There is no psychiatric diagnosis. The possibility of alcohol abuse and/or dependency is an issue.” (emphasis added)

14. The Arbitrator considered Dr Burman’s evidence and said (at [38]) that “[i]n view of the inconsistencies [in Mr Kitanoski’s history] Dr Burman … said that no psychiatric diagnosis could be made”. The Arbitrator returned to Dr Burman’s evidence at [84], where he said:

    “… Dr Burman, with respect, I found to be too focussed upon [Mr Kitanoski’s] subsequent problems. His inability to give a diagnosis because he thought [Mr Kitanoski] was not truthful I find to be somewhat facile. No history was taken of [Mr Kitanoski’s] change of personality which was clearly indicated in Dr Sokolovic’s report. It would seem that Dr Burman may not have had a copy of that report, but he was certainly aware of it.”

15. This conclusion was open to the Arbitrator and disclosed no error.

INJURY, CAUSATION AND INCAPACITY

Submissions

1. The appellant submitted:

   “For the reasons outlined in these submissions concerning the first 3 grounds of appeal, the Appellant considers that the Arbitrator misapplied his discretion in preferring the opinions of two treating psychiatrist[s] in relation to diagnoses of a neurological condition over the available evidence, particularly that from Dr Grant and Professor Kiernan.”

2. The appellant added that the Arbitrator erred “in his discretionary treatment of the evidence and the preferences for select evidence of [Mr Kitanoski] he expressed in the decision”. Under the heading “Consistency and credit”, the appellant submitted that the Arbitrator, having not heard oral evidence from Mr Kitanoski, should not have drawn any inference concerning Mr Kitanoski’s credit or consistency. Mr Kitanoski’s histories changed over time and varied significantly. Many of the experts who had the opportunity to examine Mr Kitanoski “formed a view concerning his presentation”.

3. The appellant referred to the MAC prepared by Dr Kumar, which included this statement:

   “his physical examination is inconsistent with the developed nature of the muscles in his limbs … The range of movement[s] shown in physical examination is inconsistent with the observed movements in coming in and leaving the room as well throughout the interview.”

4. Similar observations were made by various doctors whose reports were in evidence, “particularly with orthopaedic neurological qualifications who … were at a loss to explain any organic basis for [Mr Kitanoski’s] complaints”.

5. Turning to Dr Burman’s evidence, it was submitted that the Arbitrator’s “exercise of discretion in so dismissing the opinion of Dr Burman – preferring the opinions of Dr Sokolovic and Dr Stephenson amounts to an error in the exercise of discretion”. In the alternative, it was a “mixed error of fact and law”.

6. The appellant contended that there is consistent and clear evidence of Mr Kitanoski changing his history and providing different histories to different doctors. It said it was:

   “open to the Arbitrator to find that [Mr Kitanoski’s] alleged ‘changing personality’ was in fact a concerted effort by [Mr Kitanoski] to maximise his compensation entitlements or otherwise, in line with the opinion of Dr Burman, explicable with reference to [Mr Kitanoski’s] alcoholic intake (of which there were inconsistent histories given).”

7. Such a finding would have been consistent, so it was argued, “with all of the inconsistencies evident”. It is consistent with Mr Kitanoski’s failure to adduce any evidence from his treating neurologist and neurophysiologist, with the findings of the AMS (Dr Kumar), with Mr Kitanoski’s history of employment in Australia and the comments of Dr Burman.

8. Under the heading “Incapacity and the ongoing effects of an [sic, the] injury”, the appellant submitted that “a dutiful consideration of all the evidence before the Arbitrator could have led to no other finding than that [Mr Kitanoski] no longer suffered from the effects of a minor head injury in 2004”. To find, in the absence of “compelling evidence” of incapacity, that Mr Kitanoski has been totally incapacitated since the injury “represents an error of fact, law or discretion”, so it was contended.

9. The appellant further submitted that Mr Kitanoski “did not prove his case that he has been partially or totally incapacitated as a result of an injury, nor that he required medical treatment as a result of an injury that occurred over a decade ago” and the AMS found to have resulted in a nil whole person impairment. The finding of brain injury cannot be sustained, as this involved preferring the opinion of psychiatrists to a neurologist, neurophysiologist and neurosurgeon. The appellant also relied on the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298 “in relation to the failure of [Mr Kitanoski] to serve reports from his own treating neurologist and neurophysiologist”.

1. It was observed that the AMS considered Mr Kitanoski to have a fair command of English, as well as being well developed and muscular. In light of this, and in light of the abnormal pain behaviour observed by a number of specialists, the appellant submitted that the Arbitrator required more than “the weak evidence upon which the Decision relies concerning incapacity in order to find that [Mr Kitanoski] has been totally incapacitated for employment ever since his injury and as a result of it”. This is, in the appellant’s view, a “remarkable finding and would therefore require remarkable supporting evidence of which, … there is none”.

2. Under the heading “Causation”, the appellant submitted that the decision is affected by error of discretion in failing to consider the evidence of Mr Kitanoski’s motor vehicle accident on 23 August 2003, noting that the hospital entry after that accident recorded that Mr Kitanoski suffered a loss of consciousness for two to three minutes and smelt strongly of alcohol. The appellant argued that the failure to disclose this incident to doctors was, in the appellant’s view, significant and ought to have been considered by the Arbitrator.

Discussion and findings

1. Before dealing with the appellant’s specific submissions, an important preliminary point must be made. This ground of appeal is based on a fundamentally false premise, namely, that the assessment of evidence by an Arbitrator is a discretionary matter. As explained by Giles JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [3], it is an error to regard the weight to be given to medical evidence “as a discretionary matter”. In the same case, McColl JA added (at [133]), “the question of whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; 214 CLR 118”.

2. The appellant’s first point, so far as it relates to Professor Kiernan’s evidence, has been dealt with at [67]–[72] above. Dealing with the evidence from Dr Grant, consultant neurosurgeon, other than to assert that the Arbitrator misapplied his discretion in accepting the evidence of two psychiatrists (Drs Sokolovic and Stephenson) over the opinion of Dr Grant, the appellant made no relevant submission on how the Arbitrator erred on this point.

3. The Arbitrator (at [26]) noted Dr Grant’s evidence and (at [55]) the submission by Mr Dodd, the appellant’s counsel, about it. The Arbitrator (correctly) observed (at [75]) that the “fundamental change in [Mr Kitanoski’s] personality [after the fall] was not adverted to in any other medical reports, and the failure by the various Practitioners to make that connection” weakened the weight he could give to those opinions. Dr Grant was one of the medical practitioners who took no history of the fundamental change in Mr Kitanoski’s personality after the fall and the Arbitrator was entitled to discount his evidence because of that fact.

4. Though Dr Grant’s qualifications as a neurosurgeon were relevant, especially given the nature of the injury, the Arbitrator was not obliged to accept his opinion and did not err in not doing so. He was obliged to consider and weigh the whole of the evidence, expert and lay, and apply the commonsense test of causation to determine if Mr Kitanoski’s incapacity and need for treatment resulted from his accepted injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). That is what he did.

5. It is convenient to deal with the appellant’s further points under the headings Mr Ainsworth has adopted.

Consistency and credit

1. The reference to the Arbitrator drawing an inference concerning Mr Kitanoski’s credit relates to the following comments by the Arbitrator, at [96]:

   “I note that a number of negative remarks have been made by various Practitioners, and indeed by counsel, to the effect that I would regard with suspicion the recovery by [Mr Kitanoski] from his 1995 back injury to the extent that he could rejoin the work force by 2000. There is no evidence that would justify a finding that [Mr Kitanoski] had misled anyone, apart from an inference that [Mr Kitanoski’s] conduct in the years since the 2004 injury rendered him an unreliable witness. In view of the determination to which I have come, I decline to draw any inference about that matter.”

2. The submissions, which essentially amount to an attempt to conduct the appeal as a rehearing, and are based on a number of false assumptions, cannot be accepted.

3. Again, a preliminary point must be made before considering the substantive issue argued. The apparent suggestion that, if an Arbitrator has not heard oral evidence from a party, it is not open to the Arbitrator to form a view about that party’s credit or consistency is plainly wrong. 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]).

4. Further, the submission that, having not heard oral evidence from Mr Kitanoski, the Arbitrator should not have drawn any inference concerning his credit or consistency was based on the false premise that that is what the Arbitrator did. The Arbitrator did not form a view as to Mr Kitanoski’s credit, favourable or unfavourable. He merely declined to form an adverse view of his credit, stating that the evidence did not justify a finding that Mr Kitanoski had misled anyone. That statement was open on the evidence. He accepted that Mr Kitanoski was “an unreliable witness”, but declined to draw any adverse inference about that matter. Given the nature of the injury, and the evidence from Mr Kitanoski’s family and Dr Sokolovic about Mr Kitanoski’s psychosocial dysfunction, which the Arbitrator accepted, the refusal to draw any adverse inference against Mr Kitanoski was appropriate and involved no error.

5. The relevance of the quoted passage from the MAC (see [105] above) is unclear. The Arbitrator was well aware of the AMS’s views, Mr Dodd having submitted on them at length. The AMS was concerned with whether, as a result of the fall, Mr Kitanoski had any whole person impairment due to the injuries to his cervical spine, lumbar spine or upper and lower gastrointestinal tract (the last condition alleged to have resulted from medication for the physical injuries). He determined that he did not. That did not determine the issues before the Arbitrator.

6. Even if it were accepted that the adverse observations about Mr Kitanoski’s presentation to the medical practitioners undermined Mr Kitanoski’s credit, and the Arbitrator (correctly) did not accept that to be so, that did not mean that his case had to be rejected. It would merely have meant that the balance of the testimony called for careful assessment to determine whether it could be properly accepted (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117). The Arbitrator assessed the balance of the testimony by considering the whole of the evidence. That evidence included the detailed histories recorded by Dr Sokolovic and Dr Stephenson of Mr Kitanoski’s pre and post-accident presentation.

7. The submission that, in dismissing the opinion of Dr Burman, the Arbitrator erred in the exercise of his discretion is rejected. As explained above, the assessment of expert evidence does not call for the exercise of a discretion. I have previously considered the Arbitrator’s rejection of Dr Burman’s evidence (see [99]–[102] above) and will not repeat what I said there.

8. The submission that it was “open” to the Arbitrator to find that Mr Kitanoski’s alleged changing personality was a concerted effort by him to maximise his compensation entitlements, or was referrable to his alcohol intake, demonstrated a fundamental misunderstanding of the appeal process. Section 352 appeals are not a new hearing (s 352(5)). They are restricted to the identification and correction of error. It may well have been open to the Arbitrator to form a different view. The issue on appeal is whether, considering his reasons, he erred in forming the view he did. He did not.

9. The submission that Mr Kitanoski failed to adduce “any evidence” from his treating neurologist was not accurate. It is correct that Mr Kitanoski did not tender Dr Presgrave’s report. However, Dr Presgrave’s opinion, that there was no evidence that Mr Kitanoski had sustained any “significant brain injury”, was before the Arbitrator because Dr Sokolovic reproduced it in his report. Dr Sokolovic discussed Dr Presgrave’s findings with Mr Kitanoski and acknowledged that although his report (and those of Dr Whetton and Dr Cremer) appeared “reasonable”, none of these doctors had mentioned that the injury may have caused a functional disturbance of the cerebellum. It follows that nothing turns on the failure to tender Dr Presgrave’s report.

Incapacity and the ongoing effects of the injury

1. The Arbitrator’s findings on incapacity are found at [93]–[97]:

   “93.   Mr Dodd submitted that I would not be assisted by the psychiatric evidence, as neither Dr Sokolovic or Dr Stephenson had given an opinion as to capacity. However Dr Stephenson gave the following opinion:-

   ‘CURRENT RESTRICTIONS ON WORK OR GENERAL ACTIVITIES

   Mr Kitanoski has ongoing impairment of attention, memory, concentration, [a]ffectual or behavioural functioning subsequent to the injury incurred at work on 10/5/2004.’

   94.    I note also Dr Stephenson’s earlier comment:-

   ‘Cognitive impairment with memory deficit and inaccuracy are apparent, symptomatic of an organic brain syndrome.’

   95.I also note the comment in her report of 5 March 2013 that [Mr Kitanoski] ‘cannot work at all.’ I accept that opinion, supported as it is by the other evidence to which I have referred.

   96.I note that a number of negative remarks have been made by various Practitioners, and indeed by counsel, to the effect that I would regard with suspicion the recovery by [Mr Kitanoski] from his 1995 back injury to the extent that he could rejoin the work force by 2000. There is no evidence that would justify a finding that [Mr Kitanoski] had misled anyone, apart from an inference that [Mr Kitanoski’s] conduct in the years since the 2004 injury rendered him an unreliable witness. In view of the determination to which I have come, I decline to draw any inference about that matter. 

   97.[Mr Kitanoski] has not received compensation since 15 August 2006. I find he has been totally incapacitated since that time, and is accordingly entitled to an award at the maximum statutory rate up to 31 December 2012, when the Commission ceases to have jurisdiction to award weekly compensation.”

2. The submission that a “dutiful” consideration of all the evidence could have led to no other finding than that Mr Kitanoski no longer suffered from the effects of a minor head injury in 2004 is rejected. While it is open to an appellant to allege that an Arbitrator has failed to consider relevant evidence, or failed to give sufficient weight to certain evidence, a general complaint that a “dutiful” consideration of all the evidence could have led to only one conclusion implies that the Arbitrator gave the case something less than his full consideration. To the extent that the appellant has alleged specific errors by the Arbitrator, they have been considered and, except for those concerning the finding of a primary psychological injury, have been rejected.

3. The submission that the finding of total incapacity was made in the absence of “compelling evidence” involves the false assumption that a claimant cannot succeed without such evidence and a misunderstanding of the standard of proof in civil matters. As explained in Bes, “it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct”. Claimants must prove their cases on the balance of probabilities. The evidence upon which the Arbitrator relied in support of his finding of total incapacity comfortably satisfied that standard. His acceptance of it involved no error.

4. The Arbitrator’s reference (at [95]) to “other evidence” was a reference to the evidence from Dr Sokolovic, which provided a detailed summary of Mr Kitanoski’s continuing symptoms. That summary (noted by the Arbitrator at [68]–[74]) included, among other things, evidence of disturbances in Mr Kitanoski’s psychosocial functioning, deteriorating language skills, difficulty in learning and adjusting to situations.

5. In addition, though not expressly referred to by the Arbitrator, when assessing Mr Kitanoski’s whole person impairment, under “employability” Dr Sokolovic wrote:

   “Moderate impairment; [Mr Kitanoski] is still unable to be employed in his former position, or to be involved in a meaningful form of vocational rehabilitation[.] With his personality change, [Mr Kitanoski] still has a low level of resistance to cope with physical or mental disorders.”

6. This evidence provided (additional) persuasive support for the Arbitrator’s conclusion on incapacity.

7. The submission that Mr Kitanoski did not “prove his case” on incapacity is rejected for the reasons explained above. The submission that Mr Kitanoski did not prove that he requires medical treatment as a result of his injury was not developed with any meaningful argument. The order for the payment of medical expenses has not been the subject of any specific ground of appeal. Moreover, as the Arbitrator merely made a general order for the payment of medical expenses under s 60 of the 1987 Act, it is not necessary for me to deal with this issue.

8. The Jones v Dunkel submission was not a submission made at the arbitration and it is not open to argue on appeal that the Arbitrator erred in not dealing with an issue not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell)). It is another example of the appellant attempting to conduct the appeal as a rehearing. In any event, the submission is without merit. That is because, as previously noted, the fact that Dr Presgrave did not advance Mr Kitanoski’s case was disclosed in Dr Sokolovic’s report. Therefore, the failure to tender a report from Dr Presgrave was irrelevant. Knowing that Dr Presgrave did not advance Mr Kitanoski’s case, the Arbitrator accepted the evidence from Dr Sokolovic and Dr Stephenson. It was open to him to do so.

9. The relevance of the AMS noting that Mr Kitanoski had a fair command of English and was well developed and muscular is unclear. It appears to be a further attempt to conduct the appeal as a rehearing. It does not establish any relevant error by the Arbitrator. The submission that the decision relies on “weak evidence” is rejected. The Arbitrator relied on the logical and persuasive evidence of Dr Sokolovic and Dr Stephenson. He was entitled to do so.

10. The submission that, in the appellant’s view, the finding of total incapacity was a “remarkable finding” that would require “remarkable supporting evidence” was simply nonsense and should not have been made. The appellant’s “view” is irrelevant. Moreover, as previously explained, applicants must prove their cases on the balance of probabilities. The evidence discharged that standard.

Causation

1. The submission that the Arbitrator failed to consider the evidence of Mr Kitanoski’s motor vehicle accident on 23 August 2003 attempts to raise an issue that was not argued at the arbitration. It cannot be raised for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481). The Arbitrator did not err in not referring to a submission never made (Bell).

2. In any event, the submission is without merit. There is no evidence that Mr Kitanoski suffered any continuing adverse effects from the 2003 accident and his failure to disclose it to the doctors was of limited, if any, relevance. The evidence was that, before the fall in 2004, Mr Kitanoski functioned normally. The inference is that he recovered from the effects of the 2003 accident.

3. The reference to Mr Kitanoski smelling of alcohol at the hospital does not advance the appellant’s position on appeal. The evidence before the Arbitrator was that, after the fall, he began to consume alcohol as never before ([72]).

OTHER MATTERS

1. Attached to one of the several documents lodged by the appellant on appeal is a document headed Application to Admit Late Documents, which was lodged on 22 December 2015. This document had attached to it the transcript of the proceedings before the Arbitrator on 17 July 2015. It included a submission that the appellant sought leave to have the transcript admitted into evidence and that the appellant “repeats and maintains the submissions made at the Arbitration” by its counsel.

2. There are a number of points to note about this document and the submission made in it. First, it is not appropriate to lodge an Application to Admit Late Documents on appeal. If a party seeks leave to tender fresh evidence on appeal, the party is required to comply with Practice Direction No 6. An Application to Admit Late Documents is used where a party seeks leave to tender late documents at an arbitration.

3. Second, it is not necessary for the appellant to tender the transcript of the arbitration proceedings. As stated in Practice Direction No 6, the Commission obtains the transcript and forwards it to the parties. The parties are permitted to file supplementary submissions within 28 days of the date of the letter from the Registrar enclosing a copy of it.

4. Third, as s 352 appeals are restricted to the identification and correction of error, the bald assertion that a party relies on the submissions made at the arbitration, without any proper attempt to identify error, was unhelpful and unsatisfactory. Nevertheless, I have considered the submissions made by the appellant’s counsel at the arbitration. Nothing in those submissions assists the appellant on appeal or leads to a different outcome.

CONCLUSION

1. Save for the Arbitrator’s incorrect finding that Mr Kitanoski suffered a primary psychological injury, and his unnecessary reliance on Bes, neither of which has affected the outcome, the appeal has comprehensively failed. Many of the submissions made on appeal were based on patently false assumptions and others on a profoundly flawed understanding of the basic legal principles involved. Other submissions were an attempt to conduct the appeal as a rehearing. The appellant’s legal advisers should have been well aware that that is not permissible in a s 352 appeal. For these reasons, the general conduct of the appeal by the appellant’s solicitor was most unsatisfactory.

DECISION

1. Save for the Arbitrator’s finding that the applicant worker suffered a primary psychological injury, which is revoked, the determination of 7 October 2015 is confirmed.

COSTS

1. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

3 March 2016