Ly v Jitt Offset Pty Ltd
[2021] NSWPICPD 2
•18 March 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Ly v Jitt Offset Pty Ltd [2021] NSWPICPD 2 |
| APPELLANT: | Van Tho Ly |
| RESPONDENT: | Jitt Offset Pty Ltd |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-4002/20 |
| MEMBER: | Mr J Isaksen |
| DATE OF MEMBER’S DECISION: | 1 October 2020 |
| DATE OF APPEAL DECISION: | 18 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – principles applicable to the acceptance or rejection of expert evidence that is not rebutted by contrary expert opinion – Strinic v Singh [2009] NSWCA 15, Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 considered and applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr M Daley, counsel | |
| MN Compensation Lawyers | |
| Respondent: | |
| Mr J Beran, counsel | |
| Hall & Wilcox | |
| ORDERS MADE ON APPEAL: | 1. Determination 1 and Order 2 of the Certificate of Determination dated 1 October 2020 are revoked. 2. The appellant’s neck condition is a consequential condition resulting from the appellant’s injury to the back occurring on 20 October 1997. 3. The respondent is to pay the appellant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act. 4. The matter is remitted to a non-presidential member in order to determine the terms upon which the claim/s pursuant to s 66 of the 1987 Act are to be referred to the medical assessor. |
INTRODUCTION AND BACKGROUND
Mr Van Tho Ly (the appellant) was employed by Jitt Offset Pty Ltd (the respondent) as a general factory hand. The appellant suffered the onset of lower back pain on 20 October 1997 in the course of his employment with the respondent when he was stacking boxes from a machine. The appellant lodged a claim for compensation with the respondent and the respondent accepted liability.
On 10 June 1998, the appellant underwent surgery to his lower back in the form of a spinal decompression and discectomy at the hands of Dr Peter Giblin, orthopaedic surgeon. On 16 May 2000, a consent award was entered in the Compensation Court wherein the respondent agreed to pay the appellant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 22.5% permanent impairment of the back and 7.5% loss of efficient use of the left leg at or above the knee. An award was entered in favour of the respondent “in respect of any claim for permanent impairment of the neck … ”.[1] Further consent orders were entered in the Workers Compensation Commission on 16 October 2007, which dealt with a claim brought by the appellant in relation to his weekly compensation entitlements.
[1] Short Minutes of Order, Reply to Application to Resolve a Dispute (Reply), p 87.
The appellant brought proceedings in the former Workers Compensation Commission in 2020, alleging that the neck symptoms that the appellant was experiencing were a consequence of the lower back injury. The appellant claimed a further 7.5% permanent impairment of the back, a further 2.5% loss of efficient use of the left leg at or above the knee and 18% permanent impairment of the neck. The appellant concurrently brought proceedings in the Workers Compensation Commission seeking assessment of his whole person impairment for the purpose of establishing the required threshold to bring a work injury damages claim.
The respondent disputed liability for the alleged consequential condition in the neck. The dispute came before Member Isaksen who was at the time an arbitrator in the former Workers Compensation Commission. He issued a Certificate of Determination on 1 October 2020, in which he found against the appellant in relation to the allegation that the appellant’s neck condition was a consequential condition resulting from injury.
The appellant appealed the decision. After the appeal was lodged, the Workers Compensation Commission was abolished.[2] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020 (the 2020 Act), from 1 March 2021.[3] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[3] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of 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 without holding any conference or formal hearing.”
Both parties agree that the appeal can be determined on the basis of the papers and the parties’ written submissions.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
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 1998 Act have been met.
THE EVIDENCE
The appellant’s evidence
The appellant provided a statement dated 11 October 2019.[4] He provided details of his back injury. Relevantly, the appellant complained that he began to experience pain in his neck shortly after the surgery performed by Dr Giblin in 1998 and, a few months later, began to experience pain in his left shoulder.
[4] Application to Resolve a Dispute (ARD), pp 1–5.
The appellant advised that his general practitioner, Dr Tran-Dinh, referred him for an x-ray of his neck, which was performed on 13 June 2000. He said that when he returned to see Dr Tran-Dinh, the doctor told him that the x-rays did not disclose any abnormality. The appellant stated that because of what he had been told by the doctor and because the pain killers that were prescribed for his back also assisted with his neck pain, he did not complain further about his neck symptoms.
The appellant said that he underwent an MRI scan of his neck on 24 June 2014, in the context of worsening neck, left shoulder and lower back pain. He also had a CT scan of his neck on 29 November 2014. The appellant advised that Dr Tran-Dinh retired in 2014 and so he then consulted Dr Dang Vu Tran.
The appellant described the ongoing low back pain and the symptoms in his neck, which included severe pain, headaches, numbness on the left side of his face and neck and buzzing in the ear. He said he also experienced numbness in his left hand and, at times, numbness and pins and needles in his right hand. He complained that his back and neck pain had significantly worsened since 2000.
The evidence of Dr Peter Giblin, orthopaedic surgeon
Dr Giblin provided numerous reports directed to both the appellant’s treatment providers and the appellant’s legal representatives. Reports from Dr Giblin issued between 26 November 1997 and 11 May 1999[5] did not mention the appellant’s neck symptoms.
[5] ARD, pp 79–83.
On 23 November 1999, Dr Giblin reported a tremor in the left arm and headaches and assessed the permanent impairment of the back and loss of efficient use of the left leg. He also assessed 5% permanent impairment of the neck and 5% loss of efficient use of the left arm, attributing all of the impairments to be solely the result of the subject “road traffic accident.”[6] In that report, Dr Giblin mentioned, but did not refer to any of the content of, an earlier report by him dated 29 October 1998. That report is not in evidence.
[6] ARD, pp 84–85.
On 3 September 2004, Dr Giblin advised the appellant’s former legal representatives that the appellant complained of left sided back pain with discomfort in both legs. Dr Giblin also advised that, at a consultation on 5 June 2000, the appellant reported that he was experiencing neck pain and stiffness, accompanied by occipital headaches. Dr Giblin recorded that the appellant continued to complain of symptoms in subsequent consultations, including neck pain and stiffness. Dr Giblin concluded that it remained his view that the appellant suffered 22.5% permanent impairment of his back and 7.5% loss of efficient use of his left leg, as well as 5% permanent impairment of the neck and 5% loss of efficient use of each arm directly as a result of the accident on 20 October 1997.[7]
[7] ARD, pp 51–53.
On 8 May 2013, Dr Giblin reported again to the appellant’s former lawyers.[8] Dr Giblin described the injury to the appellant’s low back on 20 October 1997 and the subsequent treatment provided to the appellant. Dr Giblin reported that, approximately twelve months after the injury, the appellant noticed neck pain and stiffness, which symptoms never settled. Dr Giblin diagnosed a “secondary soft tissue injury to [the] cervical spine as a result of the subject accident.”[9] In a supplementary report of the same date, Dr Giblin assessed the appellant’s whole person impairment to be 16%, which assessment included 5% whole person impairment of the appellant’s cervical spine.[10]
[8] ARD, pp 88–93.
[9] ARD, p 92.
[10] ARD, pp 94–95.
On 30 July 2014, Dr Giblin again assessed the appellant for the purpose of providing a report directed to the appellant’s then legal representatives.[11] Dr Giblin reported that he queried the appellant as to when the neck symptoms commenced and that the appellant drew his attention to the x-ray of his neck in June 2000. Dr Giblin advised that the appellant also complained of pain in both shoulders, which had been present for 12 months, and intermittent burning and pins and needles in the appellant’s finger tips. Dr Giblin noted that the MRI scan conducted on 24 June 2014 showed a large disc bulge at the C5/6 level, approaching the cervical cord. Dr Giblin observed:
“It would appear that the onset of neck pain was associated around the time of his back injury in surgery and therein, there would appear to be a reasonable causal relationship of the diagnosis of a soft tissue injury to his neck in a secondary fashion, in relation to the primary injury to his low back.”[12]
[11] ARD, pp 96–99.
[12] ARD, p 98.
In supplementary reports of the same date, Dr Giblin assessed the appellant as having a 15% permanent impairment of the neck[13] and 5% whole person impairment of the cervical spine.[14]
[13] ARD, p 100.
[14] ARD, p 101.
Dr Giblin provided yet a further report for the appellant’s former legal representatives dated 31 October 2016,[15] with annexed supplementary reports.[16] Dr Giblin reported that the appellant’s chief complaints were of neck pain and stiffness, headaches, left sided numbness of the face and buzzing in the left ear. The appellant also complained of pins and needles in the hands and numbness of the left hand. Dr Giblin confirmed with the appellant that his neck symptoms began at the time he had undergone the surgery to the low back and the symptoms had since progressed. Dr Giblin reviewed radiological investigations of the cervical spine undertaken in 2014 and 2015. Dr Giblin advised that:
“There is an historical and causal relationship to the soft tissue symptoms in his neck, characterized as a neck injury, consequent upon his low back injury.”[17]
[15] ARD, pp 105–108.
[16] ARD, pp 109–110.
[17] ARD, p 107.
On this occasion, Dr Giblin assessed the permanent impairment of the appellant’s neck as 18% and the whole person impairment of the cervical spine as 5%.
On 14 May 2018, Dr Giblin provided a report as requested by the appellant’s current legal representatives in the following terms:
“Further to my previous reports, and in reply to your letter 3 April 2018, the soft tissue symptoms in the cervical spine are secondary or compensatory in nature in relation to the low back injury.
It is a not uncommon clinical observation that when low back pain becomes chronic, and enters into a prolonged prodromal phase as well as gradual deterioration, these low back symptoms them become associated with cervical spine symptoms.
Initially, the cervical spine symptoms are occasional but again, with the passage of time they tend to become more prominent and frequent.
The rationale is that the chronic tension in the lumbar muscles, becomes associated with an altered balance of the spine as a whole. This balance is altered primarily in the sagittal plane and if there are underlying age related asymptomatic changes, then this subtle balance change will cause symptomatic aggravation of those underlying age related changes.
On that basis, it is my view that Mr Ly's cervical symptoms are of a secondary nature in relation to the primary index injury to his low back.”[18]
[18] ARD, p 111.
Finally, Dr Giblin wrote a short note to the appellant’s current legal representatives, advising that the reference to a road traffic accident in his report dated 23 November 1999 was an error. He confirmed that the appellant had been attending him in relation to a work injury that occurred on 20 October 1997.[19]
[19] Application to Admit Late Documents dated 15 September 2020, p 1.
The evidence of Dr Robert Breit, orthopaedic surgeon
Dr Robert Breit was qualified by the respondent to provide a medico-legal opinion in respect of the appellant’s claim. He reported to the respondent on 27 April 2016.[20] Dr Breit referred to Dr Giblin as having reported in 2013 that the appellant had not suffered any new injuries. Dr Breit observed that Dr Giblin did not make mention of cervical symptoms in the neck yet made an assessment of the appellant’s impairment of the cervical spine in his report dated 30 July 2014, attributing the impairment to an injury to the neck. Dr Breit reported that the appellant was unable to provide a reliable account of when the symptoms presented.
[20] Reply, pp 28–33.
Dr Breit took a detailed account of the appellant’s complaints, performed an examination and reviewed the radiological evidence. Dr Breit agreed that the appellant’s employment was a substantial contributing factor to the injury, but only in relation to the lumbar spine. In an addendum to that report of the same date, Dr Breit assessed the appellant’s whole person impairment of the lumbar spine as 13%.[21]
[21] Reply, pp 34–35.
In a supplementary report 22 June 2018, Dr Breit responded to further queries raised by the respondent.[22] Dr Breit referred to his earlier observation in relation to the inconsistency in Dr Giblin’s opinions, and reiterated that, although Dr Giblin had been involved in treating the lumbar spine, there was no mention of injury to the cervical spine. Dr Breit considered that it was extraordinary to then allege a consequential condition in the cervical spine. Dr Breit opined that there was no connection between the back and the complaints in the cervical spine. He pointed out that, given that the appellant complained of significant disability which resulted in him spending lengthy periods lying down, the normal day to day stressors on the cervical spine would be reduced. He observed that if there was a connection between lumbar and cervical spondylosis, there would be “an epidemic of claims of a secondary injury to the neck.” Dr Breit considered that the connection of cervical symptoms to a lumbar injury was fanciful.
[22] Reply, p 17.
Dr Breit provided a further report dated 7 September 2018.[23] Dr Breit reviewed the extensive material provided to him and relevantly observed the following:
(a) there was no mention of neck complaints in Dr Giblin’s reports up to and including the report dated 23 November 1999, and the first mention of such complaints did not appear in Dr Giblin’s reports until 2004;
(b) the history provided to Dr Lowy was that the appellant’s neck pain had commenced 3 years after the surgery, which would have been in 2001;
(c) the earliest radiological investigation appeared to be the MRI scan undertaken in June 2014;
(d) Dr Van Gelder did not answer the appellant’s concern as to whether the appellant’s neck condition was related to his back injury, and
(e) in an earlier statement from the appellant dated 6 August 2007, the appellant did not mention neck symptoms.
[23] Reply, pp 10–16.
Dr Breit noted an x-ray report of the neck dated 13 June 2000, which was handed to him by the appellant. He took the history that the onset of neck pain was sudden in origin and was not precipitated by any event. Dr Breit remarked that the x-ray of the neck taken on 13 June 2000 was normal, however the MRI scan four years later showed there was evidence of a disc bulge at the C5/6 level, for which there was a low correlation between the radiology and the appellant’s symptoms. Dr Breit concluded that there was nothing to indicate that the appellant had injured his neck in the work injury and the notion that the condition was consequential to the injury was unreasonable. He observed that back pain does not lead to symptoms in the neck. He advised that he had conducted a “PubMed” search which only made reference to adolescent spinal curvature.
Dr Breit did not agree with Dr Giblin’s assessment of the appellant’s impairment of the neck contained in Dr Giblin’s report dated 31 October 2016, noting that Dr Giblin did not make mention of an injury to the neck. Dr Breit reiterated that there was nothing to show that there had been a consequential neck “injury.” He said that “[a]lteration in lumbar mechanics and movement does not affect the cervical spine.”[24]
[24] Reply, p 16.
The remaining evidence does not add anything further to the issue in dispute.
THE MEMBER’S REASONS
The Member noted the history of injury, the surgery performed on 10 June 1998 and the consent award entered in relation to the appellant’s lump sum entitlements for permanent impairment to the back and loss of use of the left leg pursuant to s 66 of the 1987 Act. The Member further noted that the claim before him was for additional lump sum entitlements in respect of the back and left leg, as well as a lump sum for the permanent impairment of the neck, which was said to be a consequential condition resulting from the back injury. The Member recorded that the respondent disputed liability for the neck condition, which was the issue he was required to determine.
The Member summarised the evidence. He referred to the appellant’s submission that Dr Giblin’s opinion should be preferred because of his unique role as the appellant’s treating specialist, having treated the appellant for at least seven years, as well as examined the appellant on three further occasions on a medico-legal basis. The Member agreed that particular regard should be given to the evidence of a treating specialist in circumstances where the specialist has a full history of the injury and treatment provided. However, he considered that the opinion of a treating specialist was not unchallengeable. The Member said that he was required to assess Dr Giblin’s evidence in the light of the issue he was required to determine. He observed that there were problems with the evidence given by Dr Giblin over the period of 20 years so that he found it difficult to be satisfied that the appellant’s neck condition resulted from his back injury.
The Member noted that:
(a) in 1999, Dr Giblin’s view was that the neck condition was solely due to the incident in 1997;
(b) five years later, he expressed the opinion that the neck condition was solely as a result of the incident in 1997, and
(c) in 2013, Dr Giblin diagnosed a soft tissue injury to the appellant’s neck which was secondary to the 1997 incident.
The Member observed that, as submitted by the respondent, Dr Giblin did not provide any rationale or reasons for the change in his opinion. He said that it is accepted that a condition can have multiple causes but said that Dr Giblin did not explain whether, from 2013, he considered that there were two causes of the neck condition or whether he had abandoned his view that the 1997 incident was the direct or sole cause of the neck condition. The Member added that, in 2014, Dr Giblin expressed the view that there was a reasonable causal connection between the soft tissue symptoms in the neck and the primary injury to the back, and again in 2016 expressed the view that there was an historical and a causal relationship between the soft tissue symptoms in the neck and the back injury. The Member said that Dr Giblin did not provide any explanation for his view in any of those reports, which were medico-legal reports and not directed to a general practitioner. He said that it was not until 2018 that Dr Giblin provided an explanation for the appellant’s neck condition.
The Member concluded that he was not satisfied, in the context of the evidence before him, that the explanation provided by Dr Giblin met the notion of a common sense evaluation of a causal connection referred to in Kooragang Cement Pty Ltd v Bates[25] and in Moon v Conmah Pty Limited.[26] The Member referred to there being a number of cases in the Workers Compensation Commission where, on the basis of an expert opinion, the Commission has determined that a lower limb injury can cause lower back symptoms through altered gait or that the lack of use of one arm can cause symptoms in the opposite arm. The Member said, however, that he considered it difficult to accept the proposition that altered balance in the lower back could produce symptoms of pain and restriction of movement in the neck. The Member expressed the view that such a notion required a “robust” opinion from a medical expert.
[25] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[26] [2009] NSWWCCPD 134 (Moon).
On the basis of the asserted inconsistency in Dr Giblin’s opinion and the lack of explanation for changing his opinion, the Member concluded that he was not confident of accepting Dr Giblin’s opinion.
The Member noted that Dr Breit did not specifically address Dr Giblin’s final opinion and simply maintained his opinion expressed in his first report. The Member said, however, that Dr Breit did undertake some research into the relationship between lower back pain leading to neck symptoms and found no relevant references to the concept. The Member was of the view that, because Dr Giblin did not respond to this evidence, it was an added reason for finding that Dr Gibson’s opinion lacked substance.
The Member referred to the appellant’s submission that Dr Giblin did not opine that the use of the appellant’s back was causative but opined that the altered balance of the spine, which caused the neck symptoms, was caused by tension in the lumbar muscles. The Member concluded that such a proposition was not a common sense proposition and he could not, therefore, accept Dr Giblin’s opinion.
The Member noted that Dr Van Gelder treated the appellant but that there was no evidence from Dr Van Gelder which addressed the appellant’s claim, and the only medical evidence in support of the appellant’s claim was that of Dr Giblin. The Member reiterated that although Dr Giblin had examined the appellant over a twenty year period and was familiar with the appellant’s orthopaedic conditions, the opinions were not consistent or meaningfully explained and the Member could therefore not be satisfied that the appellant had met his evidentiary onus.
The Certificate of Determination issued on 1 October 2020 records:
“The Commission determines:
1. Award for the respondent for the claim made by the applicant of a consequential condition affecting his cervical spine, as a result of the injury he sustained to his lumbar spine on 26 October 1997.
The Commission orders:
1. The respondent is to pay the following pursuant to section 66 of the Workers Compensation Act 1987:
(a)$4,500 for 30% permanent impairment of the back, less the amount already to [sic] paid to the applicant for 22.5% permanent impairment of the back;
(b)$1,875 for 10% permanent loss of use of the left leg at [or] above the knee, less the amount already paid to the applicant for 7.5% permanent loss of use of the left leg at [or] above the knee.
2. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment of the injury to his lumbar spine, subject to the provisions of section 59A of the Workers Compensation Act 1987.”
GROUNDS OF APPEAL
The appellant brings the following grounds of appeal:
(a) Ground One: The Member erred in applying “common sense” in his reasoning process in respect of matters that were beyond those for which lay inferences could be drawn and which required expert evidence in accordance with Strinic v Singh,[27] and
(b) Ground Two: The Member erred in the reasoning process concerning the non-acceptance of Dr Giblin’s views in that he failed to comply with the principles of Wiki v Atlantis Relocations (NSW) Pty Ltd.[28]
SUBMISSIONS
Ground One
[27] [2009] NSWCA 15 (Strinic).
[28] [2004] NSWCA 174; 60 NSWLR 127 (Wiki).
The appellant’s submissions
The appellant refers to the Member’s reasons in which the Member expressed the view that he was not satisfied that:
“the opinion that an altered balance of the spine, primarily in the sagittal plane, due to chronic tension in the lumbar muscles which then causes a symptomatic aggravation of underlying age related changes, meets ‘the common sense evaluation of the causal chain’ referred to in Kooragang and Moon, when that opinion is placed against all other evidence in this dispute.”[29]
[29] Ly v Jitt Offset Pty Ltd [2020] NSWWCC 347 (reasons), [52].
The appellant submits that this paragraph is demonstrative of error. The appellant asserts that Dr Giblin’s opinion was an expert opinion based on medical science and was not an opinion that could be assessed by a lay person from a common sense perspective. The appellant contends that the reference to a common sense evaluation, as referred to in Kooragang, is about the lay inferences that can be drawn from the facts, not the inferences that can be drawn which require expertise.
The appellant submits that the same criticism of the Member can be made in respect of his view that the proposition that an altered balance resulting from a lower back injury could produce pain and restriction of movement in the neck was difficult to accept in the absence of “robust expert opinion.”[30] The appellant says that the Member appeared to recognise the difference between the drawing of a lay inference and those inferences requiring properly founded expert opinion.
[30] Reasons, [54].
The appellant also refers to the Member’s conclusions that he could not accept that the spinal balance could be altered without movement in the lower back and that it was not a common sense proposition that tension in the lumbar muscles alone could cause an aggravation of degenerative pathology in the cervical spine.
The appellant refers to Strinic in which Beazley JA (with whom Ipp and Basten JJA agreed) observed:
(a) a judge is to make findings of fact which are founded in the evidence, unless it is a matter where the judge is entitled to take judicial notice;[31]
(b) even where a judge has experience in adjudicating medical cases, that does not make the judge a medical expert;[32]
(c) experience in adjudicating medical cases does not obviate the necessity for there to be evidence upon which to base those findings,[33] and
(d) in circumstances where a judge bases his or her conclusions substantially on their own knowledge of medical matters, the underlying fact-finding process is compromised and the party against whom the determination was made is denied procedural fairness.[34]
[31] Strinic, [60].
[32] Strinic, [59].
[33] Strinic, [64].
[34] Strinic, [115].
The appellant submits that the effect of muscle tension in the lumbar spine and altered balance is a matter for expert medical opinion and the Member was in error by determining the issue on the basis of his own common sense. In the alternative, the appellant submits that there was a denial of procedural fairness because the Member’s rejection of Dr Giblin’s opinion was informed and compromised by his own knowledge of medical matters, rather than being based on expert evidence, and there was no expert opinion that supported the Member’s conclusion.
The appellant says that the Member correctly identified the principles in Kooragang, including the observation by Kirby P (as his Honour then was) that whether the incapacity results from the injury is a question of fact to be determined on the basis of the evidence and, where applicable, expert opinions. The appellant refers to Moon, in which Roche DP accepted that the worker suffered a left shoulder condition consequent upon a right shoulder injury on the basis of both a lay common sense approach and on the basis of expert medical evidence. The appellant says that, in Moon, the medical evidence was contained in the medical histories and the clinical notes of the general practitioner, as well as the medico-legal opinions. The appellant explains that it would have been an error to find the connection solely on the basis of the worker’s testimony, as the question of causation of the rotator cuff pathology was one to be addressed by medical opinion.
The appellant further refers to the Presidential decision of Arquero v Shannons Anti Corrosion Engineers Pty Ltd,[35] a decision of the former Workers Compensation Commission in which I applied Strinic. I determined that the worker’s left knee condition resulted from the right knee injury on the basis of the worker’s testimony, the historical medical evidence and the opinion of an expert which opinion was based on established assumed facts.
[35] [2019] NSWWCCPD 3 (Arquero).
The appellant further refers to a number of Presidential authorities from the former Workers Compensation Commission on point, including Hamad v Q Catering Ltd,[36] where Snell DP said that a common sense evaluation was restricted to the “realm of common knowledge and experience,” and “... the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan … is not within ‘the realm of common knowledge and experience’.” Further, in the absence of medical evidence, common sense does not indicate that a particular incident aggravated, accelerated or exacerbated the symptoms of any disease. In addition, if a member intends to use his or her knowledge as a specialist tribunal, the intention must be disclosed to the parties in order to give the parties the opportunity to address the intention.[37]
[36] [2017] NSWWCCPD 6 (Hamad), [47]–[49].
[37] Hamad, [51].
The appellant claims that he has been denied procedural fairness by the Member determining the issue on the basis of his own understanding of the consequence of muscle tension in the back on the degenerative changes in the appellant’s cervical spine. In conclusion, the appellant submits that, by purporting to rely upon common sense in a matter that required medical expertise, the Member’s finding is in error and should be set aside. The appellant says that the facts in this case are similar to those in Quoc Tran Ho v Advanced Metal Products Pty Ltd,[38] an arbitral decision of the Workers Compensation Commission, in which the former Commission found that the necessary link had been established. The appellant says that this has resulted in greater prejudice to him.
[38] [2016] NSWWCC 301.
The respondent’s submissions
The respondent contends that the Member did not apply his expertise as a specialist tribunal or otherwise. The respondent says that the Member weighed the opinion of Dr Giblin with the remaining evidence when he observed:
“However, I am not satisfied that the opinion that an altered balance of the spine, primarily in the sagittal plane, due to chronic tension in the lumbar muscles which then causes a symptomatic aggravation of underlying age related changes, meets ‘the common sense evaluation of the causal chain’ referred to in Kooragang and Moon, when that opinion is placed against all other evidence in this dispute.”[39]
[39] Reasons, [52].
The respondent refers to the numerous inconsistencies in the appellant’s evidence as to the onset of neck symptoms, as follows:
(a) the appellant underwent lumbar surgery on 10 June 1998;
(b) the appellant reported that he began to experience neck pain shortly after the surgery;
(c) in his report dated 23 November 1999 Dr Giblin assessed 5% permanent impairment of the neck which was directly due to the incident on 20 October 1997;
(d) the appellant brought proceedings in the Compensation Court in 2000 claiming 5% permanent impairment of the neck due directly to the frank incident on 20 October 1997;
(e) Dr Giblin reported on 8 May 2013 that the onset of the appellant’s neck symptoms commenced about 12 months after the injury;
(f) on 30 July 2014, Dr Giblin reported that on direct questioning, the appellant said that his neck symptoms commenced a long time beforehand and drew Dr Giblin’s attention to the x-ray performed in 2000;
(g) Dr Giblin then formed the opinion that the onset was associated with a time when the appellant underwent surgery and there appeared to be a causal relationship between the secondary neck condition and the primary injury to the lower back;
(h) in his report dated 27 April 2016, Dr Breit recorded that the appellant repeatedly said he was unsure of when the symptoms commenced;
(i) Dr Giblin recorded on 31 October 2016 that the appellant said that the neck symptoms commenced at the time of the surgery and progressively worsened, and
(j) in his report dated 7 September 2018, Dr Breit noted that in a report from Dr Lowy in October 2011, the appellant said that the neck pain started about three years after the surgery, that the pain radiated from his back, and that there was no apparent reason for the onset of symptoms.
The respondent submits that the Member’s ultimate determination was purely based on a common sense reasoning that the appellant had not met his onus because of the inconsistent history of the onset of neck symptoms. The respondent says that the Member was not persuaded by the expert opinion of Dr Giblin because it lacked “a consistent and meaningful explanation of how the [appellant’s] problems with his neck can be related in any way with his lower back injury.”[40] The respondent contends that there can be no denial of procedural fairness in circumstances where the Member simply preferred one expert opinion, together with all other evidence in the proceedings, over the other medical expert.
[40] Reasons, [58].
The respondent disputes the appellant’s assertion that the Member did not determine the matter on the basis of the expert opinions and relies upon its submissions under Ground Two on that point.
The appellant’s submissions in reply
The appellant refers to the respondent’s reliance on the Member’s reasoning that the common sense test is satisfied when the opinion is weighed against all of the other evidence. The appellant points out that “all of the other evidence” is not identified, but is required to be medical evidence in order to discount or dismiss Dr Giblin’s opinion. The appellant says that the only medical evidence relied upon by the respondent was that of Dr Breit, which expert did not address the precise mechanism put forward by Dr Giblin.
The appellant submits that Dr Breit put forward his view based on a diagnosis of lumbar spondylosis whereas the true nature of the pathology involved a disc injury, which was consistent with the scans, and which led to sciatica and ultimately surgical discectomy. The appellant says that the reports from Dr Giblin subsequent to the surgery make note of restricted range of back movement and physical activity, lumbar spasm, sharp burning pain and a significant permanent impairment of the back and leg. The appellant asserts that, accordingly, the Member’s reasoning does not assist the respondent or in any manner detract from the appellant’s case.
Ground Two
The appellant’s submissions
The appellant concedes that the history leading to Dr Giblin’s final opinion in 2018 is less than ideal but submits that does not detract from the fact that, in 2018, Dr Giblin was asked to provide an explanation for his opinion that there was a connection between the injury and the onset of cervical pain and he did so in his report dated 14 May 2018. The appellant says that there was no evidence that Dr Giblin had been previously asked to give reasons for his view.
The appellant refers to Wiki v Atlantis Relocations (NSW) Pty Ltd,[41] where Ipp JA observed (with Bryson JA and Stein AJA agreeing):
“… save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons …
… [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.”
[41] Wiki, [62].
The appellant further refers to the observations made by the Court of Appeal in Shillingsworth v Murray[42] that those principles were applicable in the context of the obligations to give reasons where there was a conflict between expert opinions, where those experts were properly qualified and were not misleading, unduly partisan or otherwise unreliable. The appellant submits that the Member’s findings have been vitiated by the Member breaching those principles.
[42] [2004] NSWCA 465, [37].
The appellant points to the Member’s observation that the opinions expressed by Dr Giblin over the years were problematic and made it difficult for him to be satisfied of the causal connection. The appellant submits that those problems appear to be that:
(a) in his earlier reports, Dr Giblin considered the injury as related to the back injury in October 1997 and it was not until 8 May 2013 that Dr Giblin suggested that the condition was secondary to that injury;
(b) Dr Giblin did not explain the apparent change in opinion;
(c) thereafter Dr Giblin was of the opinion that there was a causal relationship between the neck injury (which was secondary to the primary injury) and the lower back, without ever explaining the medical/anatomical mechanism;
(d) a reasoned explanation for the causal link was not provided until the report of 14 May 2018, and
(e) as a matter of common sense, it was difficult to accept the reasoned explanation of Dr Giblin.
The appellant says that it has already submitted in relation to [61(e)]. The appellant submits that the remaining matters might go to the bona fides of Dr Giblin’s opinion in the 2018 report, but do not in any way contradict Dr Giblin’s scientific opinion expressed in the report. The appellant points out that the Member did not form the view that Dr Giblin did not genuinely or honestly hold the opinion expressed in the report, but used those matters to discount the science of Dr Giblin’s opinion, which the appellant submits required a reasoned, scientific, rebuttal. The appellant asserts that there was no such evidence.
The appellant contends that either Dr Giblin’s opinion was, as a matter of medical science, correct, or it was not. The appellant says that the fact that the circumstances prior to the expressing of that opinion were less than ideal does not undermine the scientific correctness of the opinion. The appellant offers the following example:
“… if the most disreputable person that ever set foot in a witness box said ‘my name is John, I am a male and I have blue eyes’ each of those propositions is capable of objective proof or refutation. The fact that they have been said by somebody with no credit does not mean that the court cannot engage with the factual issue and make a determination or that each of those propositions should be merely rejected because of the [witness’s] lack of credit, even though the witness is in fact named John, is a male and has blue eyes.”[43]
[43] Appellant’s submissions, p 14, [13].
The appellant says that, in accordance with Wiki, this was what was required of the Member, and he erred by not taking that approach. The appellant adds that there was no evidence that Dr Giblin was ever required to provide a fully reasoned opinion before being asked to provide the opinion set out in the 2018 report. The appellant describes the Member’s rejection of the opinion because the opinion had not been previously expressed as harsh and erroneous, in circumstances where the opinion was not shown to be scientifically wrong and it was far from apparent that Dr Giblin had been previously tasked with providing an explanation.
The appellant submits that the failure by the Member to enter into a reasoned rebuttal of the scientific proposition, as required by Wiki, is heightened by the Member’s conclusion that Dr Breit did not specifically address Dr Giblin’s reasons for opining that the neck symptoms were consequential to the back injury and simply remained of the view that back pain does not cause neck pain. The appellant contends that Dr Breit’s failure to address Dr Giblin’s explanation when he was provided with the 2018 report could lead to justified criticism of Dr Breit’s evidence. Further, Dr Breit’s opinion that back pain does not lead to neck pain is a mere ipse dixit and fails to comply with the rules of evidence. The appellant asserts that this is a further reason why the Member’s determination cannot stand.
The appellant submits that the Member’s ultimate determination should be set aside and that an award should be entered in the appellant’s favour on the basis of Dr Giblin’s opinion. The appellant submits that:
(a) Dr Giblin had treated the appellant for many years and was thereby in a unique position to address the causal issues;
(b) Dr Giblin provided his opinion when asked;
(c) the onset of the appellant’s neck complaints was contemporaneous with the surgery to the lower back and gradually worsened, which is consistent with the neck condition being secondary to the back injury;
(d) Dr Giblin’s opinion was not rebutted by Dr Breit, whose opinion was largely inadmissible and expressed in florid terms more akin to that of an advocate, and
(e) no other cause for the neck symptoms has been identified, apart from the degenerative changes, which Dr Giblin considered had been symptomatically aggravated by the appellant’s postural changes.
The respondent’s submissions
The respondent submits that the Member correctly applied Wiki by providing the following reasons for discounting Dr Giblin’s opinion:
(a) Dr Giblin reported in November 1999 that the appellant’s neck symptoms were solely due to the accident, and then five years later wrote that the neck impairment was directly related to the lower back injury;
(b) in 2013, Dr Giblin described the neck symptoms as secondary to the lower back injury;
(c) Dr Giblin did not provide any reason for his change in opinion that the neck condition was a sole or direct result of the 1997 incident or explain whether he considered there were two causes of the symptoms;
(d) Dr Giblin did not provide any explanation for either of his opinions;
(e) none of the medico-legal reports prior to 2018 explained how the lower back injury affected the cervical spine, and
(f) the concluding reasons that the Member gave for not accepting Dr Giblin’s opinion were that:
(i)the opinions expressed by Dr Giblin prior to 2018 were inconsistent;
(ii)Dr Giblin did not provide an opinion on causation in his earlier reports, which lacked substance, and
(iii)Dr Giblin did not explain his change of opinion.
The respondent refers to Shillingsworth and contends that the Member determined the matter in a manner consistent with that authority. The respondent says that he did so by observing that there were problems in accepting the opinions of Dr Giblin which made it difficult for him to accept that the appellant’s neck symptoms resulted from the lower back injury, and that was a further reason for concluding that the opinion of Dr Giblin lacked substance.
The respondent refers to the appellant’s argument that Dr Giblin was never asked to provide an opinion on causation until 2018 and submits that this is not the test and, in any event, in the earlier reports, Dr Giblin did provide his opinion on causation. The respondent explains that Dr Giblin changed his opinion from the incident being a direct cause of the neck symptoms to a consequential condition occurring over time. The respondent says that the appellant has overlooked the fact that Dr Giblin never provided an explanation as to why he changed his opinion which, consistent with the decision in Wiki, diminished the weight to be afforded to the opinion which resulted in the appellant’s case failing.
The respondent disputes the assertion by the appellant that the Member did not provide a reasoned rebuttal for rejecting Dr Giblin’s opinion. The respondent refers to the appellant as bearing the onus of proving his case and says that the appellant is seeking to reverse that onus. The respondent disputes both the appellant’s argument and the Member’s statement that Dr Breit does not deal with the reason provided by Dr Giblin. The respondent contends that Dr Breit specifically rebutted the opinion when he observed that:
(a) back pain does not lead to neck pain;
(b) the appellant displayed an extraordinary level of pain and disability and as a result spends much of the time lying down, which would reduce the day to day stressors on the cervical spine;
(c) if there was a connection between lumbar and cervical spondylosis, there would be an epidemic of claims;
(d) it would be fanciful to consider that there was a nexus between a lower back injury and cervical symptoms;
(e) the outcome of a “PubMed” search was limited to references to adolescents with spinal curvature, and
(f) there was nothing to show that there was a neck condition consequential to the lower back injury.
The respondent further disputes that Dr Breit’s evidence offended the principles enunciated in Makita (Australia) Pty Ltd v Sprowles,[44] which the respondent says do not apply to the Commission, relying on Hancock v East Coast Timber Products Pty Limited[45] for that proposition. The respondent asserts that Dr Breit explained his disagreement with Dr Giblin’s opinion by indicating that, because of the appellant’s inactivity, there was an absence of stress on the cervical spine and from his experience and research there was a lack of instances of similar claims. The respondent contends that there was a “fair climate” to support his expert opinion, as is required by Makita.
[44] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita).
[45] [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43 (Hancock).
The respondent asserts that in fact Dr Giblin’s expert reports offend the principles in Makita. The respondent says that, consistent with Hancock, the Member was required to weigh the expert opinions and, on the basis of the numerous reports from Dr Giblin, was unable to afford that evidence sufficient weight in order to be satisfied that the appellant met the evidentiary onus.
The respondent adds that the Member observed that Dr Giblin did not respond to Dr Breit’s views and it was the appellant’s evidence that actually failed to address Dr Breit’s reasoned scientific opinion. The respondent maintains that, as a result of the above, the Member was correct to prefer the opinion of Dr Breit over that of Dr Giblin.
In conclusion, the respondent says that both this appeal ground and Ground One of the appeal have not been made out and for the reasons set out above, the Member’s decision should not be disturbed.
The appellant’s submissions in reply
The appellant reiterates that he conceded that Dr Giblin’s path of reasoning was somewhat unsatisfactory but points out that he put forward a number of reasons as to why the path of reasoning had evolved in the manner it did. In any event, the appellant says that, in his 2018 report, Dr Giblin put forward a scientific hypothesis explaining the causal connection, which was capable of being tested and required rebuttal by expert evidence at that level. The appellant submits that Dr Giblin’s opinion expressed in his 2018 report was independent of what had proceeded beforehand.
The appellant disputes that he is attempting to reverse the onus of proof but is asking that the acceptance or rejection of Dr Giblin’s view be tested in accordance with the standard described in Wiki.
The appellant contends that the Member did not specifically rebut Dr Giblin’s opinion. The appellant provides submissions as to why Dr Breit’s opinion should not be accepted. The further submissions are either submissions already made, or were not made at arbitration, or are matters that are not in response to the respondent’s submissions.
THE RELIEF SOUGHT
The appellant seeks to have the appeal allowed and awards made in his favour. The appellant seeks to have the claims for permanent impairment and whole person impairment referred to a medical assessor for assessment. In his reply to the respondent’s submissions, the appellant seeks, in the alternative, that the matter be remitted to another member for re-determination.
The respondent seeks to have the Member’s decision confirmed.
CONSIDERATION
The basis upon which the Member rejected the opinion of Dr Giblin was firstly, that on a common sense evaluation of the proposition put by Dr Giblin, the causal connection was not established (the subject of Ground One of the appeal). The second basis upon which the Member found against the appellant was the perceived difficulties in the reliability of Dr Giblin’s evidence (Ground Two of the appeal). Put simply, the appellant asserts error on the part of the Member in rejecting the opinion of Dr Giblin. The Court of Appeal authorities of Strinic and Wiki are both relevant in considering whether the Member’s reasoning process discloses error of the kind that warrants Presidential intervention.
Ground One
In submissions in support of Ground One, the appellant relies on the observations made by Beazley JA (as her Honour then was) in Strinic and argues that the Member could not determine the matter on the basis of common sense alone. After reviewing the evidence provided by Dr Giblin in his numerous reports, the Member made the following observations:
“However, I am not satisfied that the opinion that an altered balance of the spine, primarily in the sagittal plane, due to chronic tension in the lumbar muscles which then causes a symptomatic aggravation of underlying age related changes, meets ‘the common sense evaluation of the causal chain’ referred to in Kooragang and Moon, when that opinion is placed against all other evidence in this dispute.”[46]
And:
“As a common sense proposition I cannot accept that the balance of the spine can be altered without use or movement of the lower back. Nor can I accept as a common sense proposition that the tension of lumbar muscles on their own can cause symptomatic aggravation of age related changes in the neck. I therefore cannot accept from the explanation which is ultimately provided by Dr Giblin that the [appellant’s] neck condition results from his lower back injury.”[47]
[46] Reasons, [52].
[47] Reasons, [56].
As Beazley JA remarked in Strinic:
“It cannot be denied that judges gain enormous experience in determining such matters. However, that experience is in assessing the credit of witnesses; in determining what evidence to accept or reject; making findings of fact based on the evidence and in applying the law to those facts. Familiarity gained from experience with medical terminology and medical conditions is of undoubted assistance in helping a judge understand the evidence in a particular case. However, such familiarity never makes the judge the expert in the case.”[48]
[48] Strinic, [59].
I agree with the submission put by the appellant that the reference to a common sense evaluation, as referred to in Kooragang, is about the lay inferences that can be drawn from the facts, not the inferences that can be drawn which require expertise.
The Member’s task in this case was to determine whether, because of chronic tension in the lumbar muscles, the spinal balance was altered and caused an aggravation of underlying degenerative changes in the cervical spine. There was no challenge to the fact relied upon by Dr Giblin that there was chronic muscle tension. Whether such tension could cause spinal imbalance is a question of causation that, in the circumstances of this case, is a medical question which required expert medical opinion. Dr Giblin provided that opinion in his 2018 report.
The respondent relies on Arquero. That decision does not assist the respondent. In that case, it was necessary to make a factual determination as to whether the right knee symptoms caused the worker to place greater stress on the left knee. That was a straightforward proposition, which was supported by lay evidence as to the fact and medical evidence as to what caused the worker’s left knee symptoms. Similarly, in Moon, Roche DP found the proposition that the left shoulder symptoms resulted from the right shoulder injury was supported by clinical notes from the general practitioner, and in the medical histories in the reports from three medical experts. Roche DP reasoned that:
“The connection between the left shoulder symptoms and the right shoulder injury – the overuse of the left shoulder as a result of restrictions in the right shoulder – is, in the circumstances of the present case, so obvious that it requires no further explanation by the medical experts.”[49]
[49] Moon, [49].
The circumstances in the present case are somewhat different. The appellant’s case was not what could be described as “obvious,” or “within the realm of common knowledge” as referred to by Snell DP in Hamad. Consequently, expert medical evidence was required to explain the connection between the cervical symptoms and the back injury. Dr Giblin expressed his opinion in the 2018 report. The Member’s task was to assess the proposition put forward by Dr Giblin against any contrary expert views.
The respondent submits that the Member simply preferred one expert’s opinion over the other. I do not accept that submission. The Member considered the views of Dr Breit, which were that back symptoms did not cause aggravation of cervical spondylosis, and that the “PubMed” research revealed only such a connection in adolescents with scoliosis. The Member noted that Dr Breit did not address the opinion of Dr Giblin in relation to the causal connection. The Member did not explicitly accept or reject the evidence of Dr Breit.
In the absence of acceptance of any competing expert evidence, the conclusion that the Member relied upon his own lay assessment of the causal connection is compelling. In doing so, in the manner discussed in Strinic, in order to assess the evidence he has stepped beyond the scope of using his familiarity with medical matters to understand the medical evidence.
The appellant also complains that he has been denied procedural fairness by the Member determining the matter on the basis of his own understanding of the connection between muscle tension in the back and the development of symptoms in the degenerative changes in the appellant’s cervical spine. That is, that the Member has failed to give judicial notice that he intended to use his special knowledge as a member of a specialist tribunal. I do not accept that the Member rejected the causal connection on the basis of what he perceived to be his specialist knowledge. He found against the appellant because he did not accept that the connection put forward by Dr Giblin was a matter of common sense.
That approach was clearly in error, but it was not the only basis upon which the Member rejected Dr Giblin’s opinion. In the context of having considered but not accepted the evidence of Dr Breit, the Member was required to provide cogent reasons for rejecting Dr Giblin’s evidence, as described in Wiki. It is thus necessary to discuss the principle enunciated in Wiki and consider the second ground of appeal.
Ground Two
The second basis upon which the Member rejected the opinion of Dr Giblin was that:
(a) Dr Giblin did not express that view in earlier reports;
(b) in the Member’s view, the proposition was not consistent with earlier opinions expressed by Dr Giblin;
(c) no explanation was given by Dr Giblin in his earlier reports as to how the condition was due to the injury, and
(d) Dr Giblin did not provide an explanation for the alteration in his opinion.
Wiki establishes that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons.
It is important to note that the Member did not reject the opinion of Dr Giblin because of the evidence of Dr Breit. Adopting the ratio in Wiki, there was no suggestion that Dr Giblin was attempting to mislead. In those circumstances, and in the absence of an accepted rebuttal by a medical expert, the Member was required to give cogent reasons as to why he rejected Dr Giblin’s opinion expressed in his 2018 report.
The first reason given by the Member was that Dr Giblin did not provide any rationale or basis for “the change in his opinion.” It is necessary to closely review Dr Giblin’s opinions offered in his reports from 1999, in which the appellant’s neck condition was commented upon. In the report of 23 November 1999, Dr Giblin did not refer to any specific neck symptoms but opined:
“lt is my opinion, that solely as a result of the subject road traffic accident, and notwithstanding any age related, constitutional or degenerative condition which may or may not have been present prior to the date of subject injury, this gentleman has ... 5 percent permanent impairment of his neck …”.[50]
[50] ARD, p 85.
The reference to a “road traffic accident” was corrected by Dr Giblin in subsequent correspondence. Dr Giblin made no reference to the appellant’s neck condition in that report, other than making the above assessment.
In his report dated 3 September 2004, Dr Giblin reported that the appellant complained to him that he was experiencing neck pain, stiffness and headaches. Dr Giblin said it remained his view that the impairments assessed by him (which included the assessment of the neck) were “directly as a result of” the incident.[51] As discussed, in his report dated 8 May 2013, Dr Giblin described the neck condition as having an onset about twelve months after the injury and that it was secondary to the incident in 1997. Dr Giblin confirmed in his report dated 30 July 2014 that, on the history provided to him, the neck symptoms appeared at about the time of the lumbar surgery.
[51] ARD, p 53.
It is not clear from the above as to why the Member concluded that Dr Giblin had changed his view between 1999 and 2013, or that his evidence was “inconsistent.” Dr Giblin never expressed an opinion in 1999 that the neck was actually injured in the incident. The best that the respondent can point to is that Dr Giblin, in 1999, considered that the neck condition was “solely” or “directly” as a result of the incident, which, without explanation, may indicate that he was of the view that the neck was injured in the accident or, alternatively, the neck condition resulted from the incident and no other cause. In the context of an absence of history as to the onset of the symptoms, or an explanation of the opinion, what Dr Giblin intended to convey is not readily apparent.
Dr Giblin did not record a history of when the symptoms manifested until his reports in 2013 and 2014, from which time he consistently recorded that the onset of the symptoms occurred about 12 months after the incident, that is at about the time of the surgery. There was no contrary history expressed in his earlier reports.
As is apparent, there was no explanation offered by Dr Giblin as to the causal connection between the neck condition and the 1997 injury until 2013, from which time Dr Giblin consistently referred to the symptoms as being secondary to the lower back injury. In 2018, Dr Giblin explained why he considered that to be the case.
In defending the Member’s decision, the respondent asserts that the opinions expressed by Dr Giblin were inconsistent and the inconsistency was not explained, which submission was accepted by the Member and provided a purported proper reason to reject the opinion of Dr Giblin. It is conceded by the appellant and readily apparent that the earlier reports were unsatisfactory in respect of a clearly expressed view by Dr Giblin, but that is not sufficient to persuasively assert that Dr Giblin formed an opinion as to causation and then changed his opinion, without offering a proper explanation for that change of opinion. What is abundantly clear is that the reports prior to 8 May 2013 lacked the expression of a properly founded opinion. Thus, at its highest, the evidentiary value of the earlier reports was that they were of no assistance to the Member in making a determination in favour of the appellant as to the causal relationship between the neck symptoms and the incident in 1997.
The absence of contemporaneous evidence from Dr Giblin or the appellant’s treatment providers of the onset of symptoms and the context in which those symptoms arose is relevant to the weight to be afforded to the opinion ultimately expressed by Dr Giblin. For the reasons expressed above, the extent to which the Member took other matters into account, as summarised in the parties’ submissions, has led to error on the part of the Member and that error has affected the outcome. Having rejected the opinion of Dr Giblin in circumstances where there was no expert rebuttal of that opinion, the Member was required to provide cogent reasons as to why he did not accept the proposition put forward by Dr Giblin. The Member’s reasons fell short of that standard.
CONCLUSION
The appellant has succeeded in establishing errors on the part of the Member and Grounds One and Two of the appeal succeed. Determination 1 and Order 2 of the Certificate of Determination dated 1 October 2020 are revoked. Section 352(5) of the 1998 Act provides that an appeal to a Presidential member 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 issues requiring determination are whether the appellant suffers from a consequential condition in his neck that results from the lower back injury and whether the appellant is entitled to treatment expenses pursuant to s 60 of the 1987 Act in respect of the neck condition, further entitlements pursuant to s 66 of the 1987 Act and a further amount pursuant to the former s 67 of the 1987 Act for the associated pain and suffering.
The claim for treatment expenses was expressed as a specific amount in respect of radiological investigations and pharmaceutical expenses. As I understand the respondent’s case, the denial of liability for the treatment expenses was on the basis that the neck condition was not compensable, rather than a denial on the basis that such treatment was not reasonably necessary. That is, the payment of treatment expenses will or will not flow, pending a determination of the issue of liability for the neck condition. In the interests of a timely resolution therefore, it is appropriate for me to re-determine the issue in respect of the causal connection between the neck condition and the injury to the low back on 20 October 1997.
RE-DETERMINATION
I have read the transcript of the arbitration proceedings conducted on 24 September 2020, which recorded both parties’ submissions made at first instance.
The appellant’s submissions at arbitration
The appellant submitted that the ultimate matter for determination was whether the Member preferred the views of Dr Giblin or those of Dr Breit and that the Member ought to prefer the opinion of Dr Giblin. The appellant said that this was because Dr Giblin, as the appellant’s treating specialist for over twenty years, had more opportunity to be aware of the appellant’s neck condition and its development. The appellant added that Dr Giblin had been treating the appellant’s back condition, which put him in a unique position to determine the probable cause of the appellant’s neck symptoms. The appellant also pointed out that the neck symptoms occurred at a very early time, probably within 12 months of the back surgery in 1998.
The appellant asserted that the mechanism put forward by Dr Giblin as the cause of the neck symptoms fitted the progressive nature of the symptoms and was consistent with the appellant having continued to work (albeit on suitable duties) until a time after the neck symptoms had presented. The appellant pointed out that Dr Breit recorded that, when the appellant was examined by him, the appellant was doing very little, when in fact for a number of years after the injury, the appellant was quite active in attempting to return to work.
The appellant referred to his statement, which consistently recorded that the onset of the neck symptoms was shortly after the back surgery, progressed to pain down the left shoulder within the ensuing few months and deteriorated thereafter. The appellant submitted that in the earlier reports, Dr Giblin’s focus was on the appellant’s treatment for his back injury, and not on questions of causation. The appellant said that even in 2004, the focus of the appellant’s treatment was the back complaints, but the neck condition had been present, had required radiological investigation in 2000, and was progressively developing.
The appellant referred to Dr Giblin’s opinion expressed in his 2004 report that the appellant sustained the injuries directly as a result of the incident in 1997. The appellant said that Dr Giblin had obviously assumed that the neck symptoms had come on at about the time of the injury. The appellant submitted that in 2013, the appellant’s legal representatives specifically asked Dr Giblin to address the issue in relation to the development of the neck complaints and recorded that the onset was about 12 months after the injury (that is, at about the time of the back surgery). The appellant said that that history was consistent with the appellant’s statement and the various references to the neck symptoms in Dr Giblin’s other reports. The appellant asserted that, having specifically considered and recorded a more detailed history, Dr Giblin arrived at a diagnosis of a secondary soft tissue injury to the cervical spine as a result of the incident in 1997.
The appellant submitted that the remaining reports, in essence, dealt with the deteriorating nature of the neck condition and in the report dated 30 July 2014, Dr Giblin again recorded that the symptoms commenced at about the time of the back surgery. The appellant said that it was abundantly clear that the neck symptoms came on at about the time of the surgery, and therefore there was a reasonable causal relationship between the diagnosed secondary soft tissue condition in the neck and the primary injury to the back, without suggesting some injury occurred during surgery.
The appellant reiterated that, by the time of his report dated 31 October 2016, of all the medical practitioners in this case, Dr Giblin was in the most unique position to provide an opinion on causation, having seen the appellant over a number of years and having been aware of the developing and worsening nature of the neck symptoms. The appellant took the Member to Dr Giblin’s ultimate opinion on the mechanism of the causal relationship.
The appellant submitted that Dr Breit misunderstood Dr Giblin’s opinion. The appellant pointed out that Dr Giblin’s hypothesis was not contingent upon the use of the back, but was attributable to the tension in the lumbar muscles which caused an altered balance of the spine as a whole.
The respondent’s submissions at arbitration
The respondent drew the Member’s attention to the fact that the appellant had previously commenced proceedings in the Compensation Court, claiming 5% permanent impairment of the neck as result of a frank injury occurring the incident in 1997. The respondent asserted that the allegation of injury was based upon the opinion of Dr Giblin contained in his report dated 23 November 1999. The respondent pointed to Dr Giblin’s reference to an earlier report dated 29 October 1998, which is not in evidence in these proceedings and, according to the respondent, was important. The respondent said that it could be implied that Dr Giblin’s opinion was that the appellant suffered a frank injury to the neck in the 1997 incident, otherwise the proceedings would not have been brought.
The respondent asserted that the opinion expressed by Dr Giblin in his 2013 report was a complete, unexplained reversal of his earlier opinion. The respondent referred to Dr Giblin’s view that the neck condition was secondary to the injury because of a temporal connection to the back surgery, which the respondent submitted was not sufficient to establish causation. The respondent described the basis upon which Dr Giblin considered the neck condition as compensatory as “incredulous,” in the context of the onset of symptoms within a short period after the injury, when the purported spinal overload was said to have occurred over time.
The respondent pointed to the pathology reported in an MRI scan, which disclosed degenerative changes, and submitted that the appellant’s symptoms were caused by those changes which had progressed over time and bore no relationship to the work injury. The respondent asserted that Dr Robin Chase, injury management consultant, expressed that view when he remarked “the non-specific neck pain … may be due to the degenerative changes.”[52]
[52] Report dated 29 July 2015, Reply, p 43.
The respondent referred to the reports of Dr Breit and submitted that Dr Breit responded to Dr Giblin’s explanation of the causal connection. The respondent relied on Dr Breit’s conclusions, including:
(a) his observation that an alteration in lumbar mechanics and movement does not affect the lumbar spine;
(b) if lumbar symptoms caused secondary pain there would be a flood of claims, and
(c) the appellant’s reduction in activity would reduce the normal, everyday stresses to the cervical spine.
The respondent referred to Kooragang and said that the test of causation is one of common sense.
In reply to the appellant’s submissions, the respondent submitted that the rationale that the degenerative changes in the cervical spine were aggravated was inconsistent with the fact that in 1998 and in 2000, as shown by the x-ray investigation on July 2000, there were no degenerative changes in the cervical spine. The respondent added that the temporal connection between the injury and the onset of neck symptoms within about 12 months of the injury was not sufficient to establish a connection between the injury and the neck condition.
Consideration
The opinion expressed by Dr Giblin is recorded above. Adopting the approach set out in Wiki, that proposition must be assessed by reference to the competing evidence in the matter. The only other medical view put forward as to the causal connection between the appellant’s neck condition and the lumbar injury was that of Dr Breit.
It is not necessary to detail the contents of Dr Breit’s reports, which are summarised above. It is noted that Dr Breit’s “supplementary report” of 22 June 2018 was a supplement to the earlier report dated 27 April 2016. Relevantly, in the report of 22 June 2018, Dr Breit said:
“I refer you to my original report from 2016 in which I mentioned inconsistency on the part of Dr Giblin. He had been involved in this gentleman’s treatment regarding the lumbar spine and his notes make no mention of any injury to the cervical spine yet it would appear he is now alleging there is a consequential injury which is most extraordinary.
Not only is there no connection between back and neck complaints this gentleman claims an extraordinary level of pain and disability so that he does very little and spends a lot of time lying down which would in fact reduce the normal day to day stresses around the cervical spine.
If there was a connection between lumbar spondylosis and cervical spondylosis we would be seeing an epidemic of claims of a secondary injury to the neck. I consider to indicate a nexus as a consequential injury to be fanciful at best.”[53]
[53] Reply, p 17.
In his report dated 7 September 2018, Dr Breit made the following further observations:
“[T]here is nothing to indicate an injury to his neck in October 2017 and it is unreasonable to indicate a consequential injury.
Back pain does not somehow lead to secondary neck symptomatology.
I performed a PubMed search, the only references relate to adolescents with significant spinal curvature.”[54]
And:
“[T]here is nothing to show that there was a consequential injury. Dr Giblin postulates that people with lumbar symptoms have secondary neck pain in which case we would be inundated with people making such claims however we do not. Alteration in lumbar mechanics and movement does not affect the cervical spine.”[55]
[54] Reply, p 15.
[55] Reply, p 16.
The appellant asserts that Dr Breit misunderstood Dr Giblin’s opinion and did not respond to the proposition formulated by Dr Giblin. He submits that the proposition put by Dr Giblin was that tension in the lumbar muscles caused altered spinal balance. The appellant adds that Dr Breit based his conclusion on the fact that the appellant was doing very little, when at the time of the onset of symptoms and for a time thereafter, the appellant was quite active in his attempts to return to work.
The respondent submits that Dr Breit responded to Dr Giblin’s opinion. The respondent relies on Dr Breit’s conclusions that:
(a) an alteration in lumbar mechanics and movement does not affect the cervical spine;
(b) if lumbar symptoms caused secondary pain there would be a flood of claims, and
(c) the appellant’s reduction in activity would reduce the normal, everyday stresses to the cervical spine.
The respondent also points out that the contention that the degenerative changes in the cervical spine were aggravated is untenable because the appellant’s cervical spine investigation did not show degenerative pathology at the time of the onset of neck symptoms.
In order to accept Dr Breit’s assertion that there is no connection between back and neck complaints, that assertion requires a properly reasoned foundation. The reasons put forward by Dr Breit were that, firstly, Dr Giblin’s notes made no reference to a neck injury. Dr Breit does not record why the failure to make note of any neck injury is at all relevant to the question of whether the neck condition arose as a consequence of the back injury.
Nor does Dr Breit otherwise explain why it would be an extraordinary proposition to claim that the neck symptoms subsequently arose because of the back injury. As the appellant asserts, Dr Breit’s observation that the appellant’s activities were minimal thus reducing the stressors on the cervical spine is inconsistent with the fact that, at the time of onset of symptoms, the appellant was actively performing suitable work for the respondent, and did so for some time after the symptoms first manifested. Further, the view that lumbar spondylosis does not aggravate cervical spondylosis did not address the issue because that was not the proposition put by Dr Giblin.
In his 2018 report, Dr Giblin described the appellant’s neck condition as “soft tissue symptoms” and said that it was not uncommon that cervical spine symptoms were associated with prolonged, chronic and deteriorating low back symptoms. Dr Giblin explained that chronic tension in the lumbar spine leads to altered balance of the whole of the spine. Dr Giblin said that “if there are underlying age related asymptomatic changes, then this subtle balance change will cause symptomatic aggravation of those underlying age related changes.” [56]
[56] ARD, p 111.
The respondent asserts that the evidence does not establish that there were degenerative changes in the appellant’s spine at the time of onset of the neck symptoms. Dr Giblin did not discuss whether the radiological evidence disclosed age related changes in the cervical spine and nor did Dr Breit. The radiology performed in 2000 was a plain x-ray of the cervical spine and the radiological investigation performed in 2004 was an MRI scan, a much more sophisticated investigative tool, which did report discal pathology. Whether that pathology may have been present in 2000 is a matter for medical opinion, of which there is none. In any event, Dr Giblin described the appellant’s neck symptoms as “soft tissue.”
Dr Breit provided no proper explanation for his assertion that altered mechanics and movement of the lumbar spine do not cause cervical spine symptoms and again, that was not the proposition put by Dr Giblin. It is not apparent why Dr Breit thought it relevant to consider that if there was a causal connection as claimed by the appellant, there would be a flood of claims. Such a consideration is entirely irrelevant.
No benefit can be gained by Dr Breit having conducted a “PubMed” search. He does not identify the search criteria used by him or the relevant articles that he reviewed as a result of that research. I reject the opinion of Dr Breit.
In any event, in the light of all of the above, Dr Breit does not traverse the proposition put by Dr Giblin, Dr Giblin’s opinion is not rebutted by other expert opinion and must therefore be accepted unless there is good reason to disturb Dr Giblin’s opinion.
In my consideration of Ground Two of the appeal, I discussed at length the matters relied upon by the respondent for its assertion that the opinion of Dr Giblin could not be accepted. I refer to and rely on those reasons in this determination.
If it is accepted that Dr Giblin’s references to the neck condition being solely or directly caused by the incident in 1997 meant that the neck was actually injured in the incident, there is no explanation provided by Dr Giblin and no history recorded by him that that was the case. As the appellant submits, it is apparent that in those earlier reports Dr Giblin had not turned his mind to the question of causation.
The respondent submits that it can be implied from the fact that the appellant brought a claim alleging that his neck was injured in the incident in the Compensation Court in 2000, that in the report from Dr Giblin dated 29 October 1998 (which was not in evidence in these proceedings), Dr Giblin expressed that view. I reject that submission. There is nothing in Dr Giblin’s subsequent reports that could lead to such an inference, and the opposite inference could well be drawn from the fact that an award for the respondent was entered in those proceedings, indicating that the appellant may have had some evidentiary difficulties in establishing the claim for permanent impairment of the neck.
The respondent also submits that the fact that Dr Giblin did not express his view earlier somehow detracts from the evidentiary value of the opinion expressed in his 2018 report. Such a suggestion is untenable. It is not uncommon that medical reports, either of a medico-legal nature or otherwise, fail to adequately address the issues in dispute. Often in jurisdictions of this nature, for whatever reason, questions arise that need to be addressed by a further report. As an example, in this instance Dr Breit was also asked to provide a supplementary report addressing the issue in these proceedings. The appellant submits that the explanation as to why Dr Giblin did not express his reasoned opinion earlier was because that was the first time he was asked to do so. I consider that to be a perfectly rational explanation.
Apart from Dr Giblin’s early, unexplained references to the neck condition being solely or directly as a result of the injury, Dr Giblin has consistently reported that the appellant began to suffer from neck symptoms approximately 12 months after the injury, that is, at about the time of the back surgery. In the absence of a history to the contrary, it cannot be said that Dr Giblin’s reports and opinions are “inconsistent.”
Conclusion
The parties may have been better served by adducing contemporaneous evidence in the form of clinical notes from the initial treating general practitioner and the report of Dr Giblin dated 29 October 1998, which may have been in evidence in the Compensation Court proceedings. Nonetheless, I am satisfied that, on the evidence before me, the appellant suffered a consequential condition in his neck as a result of the back injury sustained in the incident on 20 October 1997.
It follows that the appellant is entitled to an assessment by a medical assessor of the permanent impairment of his neck in accordance with s 66 of the 1987 Act and the Table of Disabilities. He is further entitled to reasonably necessary treatment expenses related to his neck condition pursuant to s 60 of the 1987 Act.
I note that the appellant brought separate proceedings seeking a referral to a medical assessor for the purpose of assessing whether the appellant’s whole person impairment reaches the necessary threshold to bring a claim for work injury damages in accordance with Pt 6 of Ch 7 of the 1998 Act. Those proceedings are not before me, although the resolution of the issue in these proceedings also resolves the impediment to the progression of those proceedings.
I also note that the Member entered an award in favour of the appellant in respect of the further permanent impairment of the appellant’s back and loss of use of the appellant’s left leg at and above the knee. The transcript discloses that the respondent consented to those awards, contingent upon the Member determining that the appellant’s neck symptoms did not result from the injury to back on 20 October 1997. Given the conditional nature in which the consent was given, it is appropriate for the matter to be remitted to a non-presidential member so that both parties can make submissions in relation to the terms of the referral to a medical assessor.
DECISION
Determination 1 and Order 2 of the Certificate of Determination dated 1 October 2020 are revoked.
The appellant’s neck condition is a consequential condition resulting from the appellant’s injury to the back occurring on 20 October 1997.
The respondent is to pay the appellant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.
The matter is remitted to a non-presidential member in order to determine the terms upon which the claim/s pursuant to s 66 of the 1987 Act are to be referred to the medical assessor.
Elizabeth Wood
DEPUTY PRESIDENT
18 March 2021
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