McDonald v Woolworths Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	McDonald v Woolworths Ltd [2021] NSWPICPD 45
APPELLANT:	Rosleyn McDonald
RESPONDENT:	Woolworths Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-6866/20
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	10 December 2021
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 24 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Causation – alleged factual error in the assessment of medical evidence, section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr Allen Parker, counsel
Slater & Gordon Lawyers
Respondent:
Mr L Brazel, counsel
Turks Legal
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	24 March 2021

INTRODUCTION AND BACKGROUND

Rosleyn McDonald (the appellant) worked with Woolworths Ltd (the respondent) from 14 June 1990. She worked at the Nowra Stocklands store as a service manager. Her duties involved “running the service area”. There were physical aspects such as clearing baskets and check out work, which was repetitive and involved lifting.[1] The appellant was on her feet all day. She unloaded compressed boxes of shopping bags which were delivered on pallets. She lifted cartons of heavy items such as soft drink which she then moved on trolleys. She carried bags of coins. She unloaded cartons of cigarettes weighing 10 to 15 kilograms. She used a mop to clean spillages.[2] She was injured on 23 January 2008 when she slipped and fell. She had lower back and leg pain and some time off work. The respondent accepted liability for this injury. By March 2008 the appellant was back at work on “suitable duties”. She said that thereafter she “was never free of back pain and [she] continued at work as best [she] could, carrying out the restrictive [sic] duties”. She also suffered a work-related left arm injury, for which compensation was paid, which is not relevant to the issues in the current matter.[3]
[1] Appellant’s statement, 19/5/16 (statement 1), Application to Resolve a Dispute (ARD), p 1.
[2] Appellant’s statement, 7/11/16 (statement 2), [12], ARD, pp 17–18.
[3] Statement 1, [13]–[61], ARD, pp 2–7.
The appellant’s ongoing back symptoms were accompanied by paraesthesia and tingling in the legs. On 20 February 2012 she came under the care of Dr Bentivoglio, a neurosurgeon.[4] On 24 June 2014, Dr Bentivoglio performed surgery involving release of the lateral femoral cutaneous nerve of the left thigh.[5] The appellant states that five days after the surgery she woke due to leg pain and was walking in her home when her back gave way, her left leg collapsed and she fell. She said she had severe right leg pain following this. She also states that she had an “altered walking gait following the 2008 work injury”.[6] The appellant was off work for periods that are unclear. Her last date of active employment was 22 June 2014. By July/August 2014 the appellant was suffering extreme lower back and right leg pain. She had an MRI scan on 25 September 2014 which showed disc prolapses at L2/3 and L3/4. Dr Bentivoglio suggested surgery at these levels. The appellant states the respondent terminated her employment on 29 November 2015.[7]
[4] Statement 1, [64]–[65], ARD, p 7.
[5] Statement 1, [101], ARD p 10.
[6] Appellant’s statement 18/12/18 (statement 3), [5], ARD p 21, appellant’s statement 16/12/20 (statement 4), [10], AALD 16/12/20, p 1.
[7] Statement 1, [102]–[111], [132], ARD pp 11, 13. Statement 2, [11], ARD, p 16.
The appellant saw another neurosurgeon, Professor Jaeger, who arranged an MRI that was carried out on 23 November 2016. Professor Jaeger recommended an L2/3 microdiscectomy and rhizolysis. The respondent declined liability for this.[8] Professor Jaeger carried out the procedure on 2 February 2017 treating the appellant as a private patient.[9]
[8] Statement 3, [6]–[10], ARD, pp 21–22.
[9] Dr Jaeger report 6 March 2017, ARD, p 86.
The respondent claimed lump sum compensation in respect of her back injury, together with the cost of the more recent surgery, on 5 July 2018. The respondent declined liability for this claim in a notice which is not dated.[10] The notice relied primarily on a report of Dr Casikar, a neurosurgeon who was qualified by the respondent, dated 5 December 2014. By letter dated 31 July 2020, the appellant’s solicitors advised that the appellant also brought a continuing claim for weekly payments from 4 April 2020.[11]
[10] ARD, pp 34–37.
[11] ARD, p 39.
The matter was listed for arbitration hearing on 18 February 2021. Mr Allen Parker appeared for the appellant and Mr L Brazel appeared for the respondent. Both counsel addressed and the Arbitrator (as he was at the time) reserved his decision. On 1 March 2021, before the Arbitrator issued his Certificate of Determination, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date, and the Arbitrator became a non-presidential member of the Personal Injury Commission. In his capacity as a member of the Commission, the Member issued a Certificate of Determination dated 24 March 2021, accompanied by 10 pages of reasons.[12] An award was made in favour of the respondent.
[12] McDonald v Woolworths Ltd [2021] NSWPIC 43 (reasons).

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 Act) have been met.

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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THE MEMBER’S REASONS

The Member described the fall on 23 January 2008, which he said included injury to the “L4/5 level of [the appellant’s] lumbar spine”. He referred to the surgery performed by Dr Bentivoglio on 24 June 2014, which was paid for by the respondent. The Member said it was the appellant’s allegation that, following the surgery, she experienced severe pain in her back which caused her leg to give way, causing her to stumble which “gave rise to significant further lumbar spine pathology”. He said that alternatively, the appellant alleged that she “developed significant pathology in her lower back owing to the nature and conditions of her employment or that her employment aggravated an underlying condition in her lumbar spine”. He described the appellant’s allegation as one involving “a consequential condition to her lower back as a result of the altered gait and favouring of her left leg brought about by the original fall on 23 January 2008”. The Member said that alternatively the allegation was of “a condition consequent upon the post-femoral release fall which she suffered at home shortly after the 2014 surgery”. He noted the weekly claim commenced from 4 April 2020 as that was when weekly payments, in respect of a left wrist injury on 27 April 2015, had ended.[13]
[13] Reasons, [1]–[3], [7].
The Member described the position taken by the respondent:
(a)    the appellant suffered only an L4/5 level injury to her lumbar spine together with meralgia paraesthesia in the left thigh in the 2008 injury;
(b)    the respondent does not admit any consequential conditions arising from the injuries referred to in (a) above, including a dispute in relation to the alleged fall in June 2014 and an associated L2/3 and L3/4 injury or consequential condition, and
(c)    the respondent disputes any allegations surrounding the nature and conditions of the appellant’s employment.
The Member noted that the appellant presented her case on the basis of a ‘consequential condition’ to the lumbar spine. She did not make submissions on the basis of injury pursuant to the ‘disease’ provisions.[14]
[14] Reasons, [8]–[9].
The Member posed the first question before him as “[w]hether the [appellant] suffered an injury or consequential condition to the L2 to L4 areas of her lumbar spine”. The Member said that although the appellant relied “primarily” on an allegation of a consequential condition to her lumbar spine, she also pleaded an injury “by way of aggravation of a disease process caused by the nature and conditions of [her] employment”. He said the appellant had not discharged the onus of proof in respect of either allegation.[15]
[15] Reasons, [14].
The Member referred to Dr Bodel’s report (in the appellant’s case) dated 27 October 2015. Dr Bodel said the initial injury “appeared to be just at the L4/5 level”, which “settled fairly well” without complete recovery. The doctor said “over time she has developed symptoms arising from a higher disc level without any specific additional accident or injury to cause that pathology. It is likely therefore that there was some damage to the upper levels in the early fall …”. The Member said this opinion did not stand with the MRI scan dated 12 May 2009. He said that ‘injury’ within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) required “a sudden or identifiable pathological change” (referring to Castro v State Transit Authority[16]). The Member said that the MRI scan dated 12 May 2009 and a lumbar x-ray taken in 2008 demonstrated “no evidence sufficient to support Dr Bodel’s opinion that the [appellant] suffered a frank injury to her upper lumbar levels in the 2008 fall”.[17]
[16] [2000] NSWCC 12.
[17] Reasons, [16]–[18].
The Member referred to Dr Bodel’s report dated 10 February 2017. The doctor said that, on examination in 2015, there was clinical evidence of wasting and sensory loss in the L3 distribution, the area Professor Jaeger was recommending for surgery. The doctor said the “clinical findings at that time seemed discogenic in nature”. Dr Bodel described the proposed surgery as “a consequence of the original fall” and ongoing aggravation of the disease process subsequently.[18] The Member said:
“Once again, the difficulty with Dr Bodel’s opinion is the absence of any disc pathology at the relevant lumbar levels in the immediate aftermath of the 2008 fall. In other words, there is, in my view, an absence of evidence as to any relevant injury having been caused in the original fall for the subsequent employment to aggravate.
For these reasons, the [appellant] has failed to discharge the onus of proof regarding an injury suffered in the fall in 2008, whether by way of frank injury or aggravation of a disease process brought about by the nature and conditions of her employment.”[19]
[18] Reasons, [21].
[19] Reasons, [22]–[23].
The Member then turned to whether the upper lumbar pathology constituted a ‘consequential condition’. He referred to a discussion by Roche DP in Kumar v Royal Comfort Bedding Pty Ltd[20] dealing with consequential conditions.[21] The Member said the ‘consequential’ case was put on two bases, that the condition resulted from stumbling following the femoral nerve release surgery, or that it resulted from altered gait. The appellant said she had limped since the back injury in 2008. She said that she stumbled when her left leg collapsed about five days after the 2014 surgery.[22] Dr Bodel, in a report dated 14 June 2018, said that there was a disc rupture at L2/3 in the incident five days after the 2014 surgery. The doctor said the two previous MRI scans showed there was no pathology at L2/3 or L3/4 prior to the stumbling incident, and there was a large right sided disc prolapse at L2/3 following that event. Dr Bodel said that the appellant did not suffer from a degenerative condition or a disease of gradual process.[23]
[20] [2012] NSWWCCPD 8.
[21] Reasons, [24]–[26].
[22] Reasons, [27], [32], [33].
[23] Reasons, [35]–[36].
The Member said that Dr Bodel had altered his opinion. In his reports in 2015 the doctor said there had been a work-related aggravation of an underlying condition at L2 to L4 that resulted from the 2008 fall, due to the nature and conditions of employment. In his later report the doctor said the alleged consequential condition resulted from the frank incident after the nerve release operation in 2014. The Member described the change in opinion, without explanation, as “problematic”. He said that Dr Bodel’s initial opinion that L2/3 and L3/4 were damaged in the 2008 fall was not borne out by the contemporaneous radiological evidence. The Member said the doctor provided conflicting opinions about the cause of these changes. In the absence of an explanation, there was no basis to prefer the views of Dr Bodel.[24]
[24] Reasons, [37]–[44].
The Member said that Dr Bentivoglio did not provide a definitive opinion on the causal linkage between the appellant’s employment and the symptoms emanating from L2/3 and L3/4. The Member accepted a submission that Dr Bentivoglio must have felt there was a linkage, given his request to the insurer to pay for the surgery at the upper levels. The Member said there was no report from the doctor setting out an opinion on the issue.[25] Professor Jaeger did not provide a report on causation.[26]
[25] Reasons, [45].
[26] Reasons, [48].
The Member said he was not satisfied the appellant had discharged her onus of establishing a causal nexus between the 2008 fall and the condition found at L2/3 and L3/4, applying the common-sense test in Kooragang Cement Pty Ltd v Bates.[27] The Member said he preferred the opinion of Dr Casikar on which the respondent relied. After examining the MRI scan report dated 5 September 2014, Dr Casikar said it was “difficult to connect her present medical condition with her old problem”. Dr Casikar noted that disc protrusions can occur spontaneously. Dr Casikar said there was no evidence to connect the continuing symptoms, and the new problems in the right leg, with the 2008 injury.[28] The Member concluded:
“Moreover, there is no adequate explanation on the part of Dr Bodel as to why the nature and conditions of the [appellant’s] employment would have caused such significant disc pathology in the [appellant’s] lumbar spine. Likewise, the [appellant] describes her incident at home following the June 2014 femoral nerve release surgery as ‘a stumble’. Whilst I do not doubt the [appellant’s] evidence that she experienced severe pain following that incident, the mechanics of the fall as described by her are not, in my view, sufficient to have caused such significant pathology. Alternatively, there is insufficient medical basis on the [appellant’s] own case to establish that any consequential condition to the lumbar spine at the relevant levels which required the operation in 2017 and which continued to cause her ongoing incapacity for employment were caused by either the injury in 2008, the stumble at home following the surgery in 2014 or the nature and conditions of her employment.”[29]
[27] (1994) 35 NSWLR 452 (Kooragang).
[28] Reasons, [49]–[52].
[29] Reasons, [55].
The Member made an award in favour of the respondent, consistent with his ultimate finding of fact:
“Accordingly, I am of the view that the [appellant] has not satisfied the onus of proof in demonstrating a causal link between relevant lumbar pathology and either the 2008 injury or a consequential condition arising from it.”[30]
[30] Reasons, [57].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Member erred in rejecting the evidence of Dr Bodel at paragraph [48] of the decision. (Ground No. 1)
(b)    The Member erred in failing to give sufficient weight to the evidence of Dr Bentivoglio at paragraph [47] of the decision. (Ground No. 2)
(c)    The Member failed to take into consideration all of the evidence of Dr Casikar when preferring his evidence on the issue of causation. (Ground No. 3)

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352 OF THE 1998 ACT

This appeal is brought pursuant to s 352 of the 1998 Act, subs (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[31] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[32] to the appeal process pursuant to s 352, said:
“(a)    A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c)     It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[33]
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
[32] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[33] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill, Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[34]
[34] [2020] NSWCA 54, [20].
In Northern New South Wales Health Network v Heggie,Sackville AJA, dealing with the scope of such appeals, said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[35]

GROUND NO. 1

The Member erred in rejecting the evidence of Dr Bodel at paragraph [48] of the decision.

GROUND NO. 2

The Member erred in failing to give sufficient weight to the evidence of Dr Bentivoglio at paragraph [47] of the decision.

[35] [2013] NSWCA 255, [72].

GROUND NO. 3

The Member failed to take into consideration all of the evidence of Dr Casikar when preferring his evidence on the issue of causation.

In essence, the Member did not accept the views of Dr Bodel and preferred the evidence of Dr Casikar. The grounds challenge the assessment of the parties’ medical cases as a whole, and the Member’s ultimate preference for the opinion of Dr Casikar. In the circumstances it is convenient to deal with the three grounds together.

Appellant’s submissions

The appellant submits that, in the fall on 23 January 2008, the appellant injured her “left arm, left groin, left knee and lumbar spine apparently at the L2/3 level”. She submits these injuries were “admitted by the respondent” and she was compensated in respect of them. She submits the surgery on 24 June 2014 was paid for by the respondent, and thereafter she “suffered altered gait as well as a fall from her leg giving way”.[36]
[36] Appellant’s submissions, [4].
The appellant refers to Dr Bodel’s reports. She submits Dr Bodel saw her on “a number of occasions dating back to 2008”. He saw her on 27 October 2015 in respect of the current claim. He “unfortunately” did not mention “the surgery in June 2014, the altered gait or the fall subsequent to the surgery”. The appellant refers to the doctor’s report following an examination on 14 June 2018, when he obtained “a proper history of the surgery, the subsequent leg pain and the fall”. The appellant submits the doctor then obtained a “full and accurate history, which is not apparently disputed”, and made “a definite diagnosis”, that the appellant was:
“… suffering a consequential condition with a disc rupture at the L2/3 level on the right hand side which occurred as a result of the injury that occurred 5 days after the surgery done by Dr Bentivoglio to release the lateral cutaneous nerve of the left thigh.”
The appellant submits there was “a commonsense explanation of the shift by Dr Bodel and for that reason his evidence should be accepted”.[37]
[37] Appellant’s submissions, [5].
In support of Ground No. 2, the appellant submits the Member accepted a submission that there was a sufficient evidentiary basis in the evidence of Dr Bentivoglio to satisfy the appellant’s onus of proof. The appellant submits the Member did not then give a reason for rejecting the submission.[38]
[38] Appellant’s submissions, [6].
Dealing with Ground No. 3, the appellant states that the Member’s reasons dealing with Dr Casikar’s opinion are found at [49] to [53] of the reasons. The Member refers to the following aspects of Dr Casikar’s opinion:
(a) Having taken a history from the appellant of altered gait, Dr Casikar said “Dr Bentivoglio has also indicated that this is a new injury and is not related to her previous injury of 2008.” The appellant submits this failed to take account of Dr Bentivoglio’s opinion that the need for further surgery resulted from the injury in 2008.
(b) The appellant refers to a passage in which Dr Casikar says:
“While there may be legal justification to associate her present symptoms with the injury of 2008, it would be difficult to support by an evidence based medical opinion.”
The appellant submits there is no explanation from Dr Casikar regarding what was meant by this passage.[39]
[39] Appellant’s submissions, [7].

Respondent’s submissions

The respondent submits that it did not accept injury, in the 2008 incident, to the upper lumbar regions. It denied that injuries at L2/3 and L3/4 were work related. It states that it paid for the 2014 surgery on the basis that procedure resulted from the 2008 fall, it refers to Dr Casikar’s report. It submits the appellant has referred to both limping, and the fall at home following the 2014 surgery, as causes of the L2/3 and L3/4 pathology. It submits there is no proof of the fall, it was not disclosed to “either Dr Bentivoglio or her treating doctors at the time”. Dr Casikar did not believe a disc injury could result from a limp.[40]
[40] Respondent’s submissions, [4.1].
The respondent submits that Dr Bodel’s report dated 27 October 2015 is “inadequate” and the appellant acknowledges that inadequacy. It submits this casts doubt on the weight to be given to Dr Bodel’s reports. The respondent submits the report of 10 February 2017 did not contain a history of the fall following the 2014 surgery (nor did Dr Bentivoglio or the appellant’s general practitioner have such a history). The respondent submits Dr Bodel’s report dated 14 June 2018 does not properly consider Dr Bentivoglio’s opinion regarding “the new disc pathology detected by MRI in 2014”. Dr Bentivoglio considered the “new disc pathology” to be “a new finding and unrelated to the work incident she described in approximately 2008”. The respondent submits the MRI in 2009 did not reveal injury at L2/3 or L3/4 but exposed a possible congenital issue. The respondent submits there was not a “fair climate” for assessment by Dr Bodel. The reports are based on a “changed” history.[41] It submits Dr Bodel’s opinion should be “doubted”. It submits the incident (I infer following the 2014 surgery) was not reported or included in the appellant’s first statement. The appellant submits it is “common sense that there must be doubts about Dr Bodel’s opinions as a result of these change[s] to histories”.[42]
[41] Respondent’s submissions, [5.1.2]–[5.1.3].
[42] Respondent’s submissions, [5.1.4].
Dealing with Ground No. 2, the respondent submits that Dr Bentivoglio noted the appellant’s belief that the ‘new’ disc protrusions resulted from limping, but the doctor did not himself adopt this view. The respondent refers to Dr Bentivoglio’s opinion, in his report dated 30 October 2014. The doctor there said (referring to the more recent MRI findings): “So this is a new finding, unrelated to the work injury she described in approximately, 2008”. The respondent submits that this did not support Dr Bodel’s opinion and the Member did not err in how he dealt with Dr Bentivoglio’s views.[43]
[43] Respondent’s submissions, [6].
The respondent refers to the passage quoted at [30(b)] above. It submits the meaning is that lawyers might seek to argue a connection but this would be “difficult to support via medical opinion”. The respondent submits this does not derogate from the doctor’s opinion. The respondent submits that Dr Casikar’s history is correct. It refers to Dr Bentivoglio, who records no history of a fall.[44]
[44] Respondent’s submissions, [7].
The respondent makes some submissions of a general nature. It refers to Nguyen v Cosmopolitan Homes[45] and Kooragang. It refers to the need to satisfy s 9A of the 1987 Act, or ‘main contributing factor’ if the disease provisions apply.

Consideration

[45] [2008] NSWCA 246.

The issues as litigated

The ARD pleads a frank injury, within the meaning of s 4(a) of the 1987 Act, on 23 January 2008, the occurrence of which is not contentious. The injuries sustained included injury to the back. The ARD additionally pleads ‘consequential’ injury to the back, including the left buttock and groin. That is, that the consequential injuries (more correctly, conditions) resulted from the injury on 23 January 2008, and that there is an unbroken chain of causation from the injury on 23 January 2008 to the consequential conditions, consistent with the decision in Kooragang.[46] The ARD additionally pleads injury, pursuant to the ‘disease’ provisions in s 4(b) of the 1987 Act, due to the ‘nature and conditions’ of her employment from 2008 to 22 June 2014 (the last day of her employment).
[46] See generally, State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1.
It is apparent, reading the Member’s reasons as a whole that he approached the matter, consistent with how the case was run, on the basis that the real issue was the causal linkage between the injury on 23 January 2008 and the upper lumbar condition that Professor Jaeger treated surgically on 2 February 2017.
That causal link was supported by Dr Bodel, on various bases. There was debate regarding the extent to which it was supported by Dr Bentivoglio. It was not supported by Dr Casikar. It is appropriate to set out, in summary form, the competing views of these doctors.

Dr Bentivoglio’s reports

Dr Bentivoglio, a neurosurgeon who treated the appellant, first saw her on 23 April 2012 and reported on 15 June 2012.[47] He took a history of a fall four years previously, and that the appellant was “now experiencing low back pain going into both hips, left side worse than the right”. There was no abnormality on neurological examination. On 13 July 2012 Dr Bentivoglio reported that an MRI scan showed “some mild degenerative disease but no evidence of neurological compression or compromise and nothing to explain any pins and needles she is getting in her left leg”.[48] On 5 February 2013 Dr Bentivoglio said there seemed to be “dysaesthesia in the distribution of lateral femoral cutaneous nerve of the thigh” and suggested a local block.[49]
[47] ARD, p 60.
[48] ARD, p 63.
[49] ARD, p 65.
Dr Bentivoglio reviewed the appellant on 27 August 2014, following the surgery on 24 June 2014. Dr Bentivoglio said the appellant was making “good steady progress” from the release of the lateral femoral cutaneous nerve on the left side. He said:
“Rosleyn has developed a new recurring problem. This is her low back problem which I have treated in the past.
An MRI scan of her lumbar spine performed about 2 years ago showed some minor disc changes at L4-5, which was treated conservatively. Now for the last 3 or 4 weeks she has a recurrence of the right low back pain going into her right hip and down the back of her thigh to her knee, but not below the knee. Her walking is significantly affected.”[50]
[50] ARD, p 69.
Dr Bentivoglio arranged a further MRI scan of the lumbar spine. The report dated 25 September 2014 described the findings:
“At the L2/3 level, there is a new disc fragment at the right foramen, not present on the prior study of two years ago (sagittal image 5, axial image 14).
At the L3/4 level, there is a second new foraminal protrusion, abutting the dorsal nerve root ganglion.
The central disc bulge at L4/5 is a longstanding finding, unaltered from the prior study. There is no associated compromise of the thecal sac here.”
The radiologist’s comment was: “Stable appearance of the L4/5 disc. New foraminal protrusions on the right at L2/3 and L3/4 level.”[51] In a report dated 26 September 2014 Dr Bentivoglio said:
“There has been a significant change in the MRI scan in the last two years. She now has two new disc prolapses on the right side at L2-L3 and L3-L4, jamming the L2 and L3 nerve root. This was not present in the MRI scan two years ago. She maintains this is caused by the way she had to walk when she had the neuralgic amyothropy. There is no other injury that she has of note.”
[51] ARD, p 70.
Dr Bentivoglio said the appellant needed to have “these two disc prolapses removed by hemilaminectomy of L3 and partial hemilaminectomy of L2 on the right side”. The doctor said “I will seek approval from the insurance company to do this”.[52]
[52] ARD, p 71.
In a report to the insurer dated 30 October 2014 Dr Bentivoglio discussed the matter:
“She returned to see me on 27th August 2014 with a new problem of low back pain going into her right buttocks and down into her right thigh and knee. A new MRI scan showed significant changes to the MRl performed 2 years ago. She has now developed a disc prolapse on the right side at L2-3 and L3-4, jamming the L3 nerve root which was not present on the MRI scan 2 years previously. So this is a new finding, unrelated to the work injury she described in approximately 2008.
Rosleyn now has significant disc degeneration, not only at L4-5 which she had initially, but also at L2-3 and L3-4 with disc protrusions. This is a new finding.”[53]
[53] ARD, pp 72–75.

Dr Casikar’s reports

Dr Casikar, neurosurgeon, initially examined the appellant, at the respondent’s request, on 11 October 2012 and reported on the same date.[54] He took a history that, following the fall in January 2008, the appellant was off work for two weeks and then on ‘suitable duties’ for about eight months. It was recorded that she initially had constant tingling in the left thigh. The tingling came back in 2011. It was then that the “workers compensation issue” re-opened and she saw Dr Bentivoglio. The present symptoms were described as tingling that was “getting much worse”, and constant burning pain in the left hip extending to the lateral aspect of the left knee. The doctor recorded that the appellant’s gait was normal, she could walk on heels and toes without difficulty, back movements were normal. There was hypoaesthesia over the lateral cutaneous nerve area on the left and tenderness over the anterior superior iliac spine on the left side. The doctor said the MRI scan dated 11 July 2012 showed “very borderline degenerative changes”, with no evidence of nerve root compression or disc prolapse. The doctor’s diagnosis was lateral cutaneous nerve injury (meralgia paraesthetica).
[54] Reply, pp 10–17.
Dr Casikar said that the sensory symptoms were “confined to the area of distribution of this nerve”. He did not think there was sciatic pain. He thought this diagnosis was consistent with the injury in 2008, and that the appellant would require local injections and possibly decompression of the nerve. Dr Casikar did not think the appellant had a compensable back injury. The nerve injury was of a kind that was “not uncommon” following such falls. He thought that injury was “wholly caused by the fall”.
Dr Casikar next examined the appellant on 1 December 2014 and reported on 5 December 2014.[55] The doctor took a history of the surgery performed by Dr Bentivoglio on 24 June 2014. He recorded this had improved the symptoms, although the appellant “was left with some area of hypostasia”. He took a history that, four weeks after the surgery, the appellant “developed low back pain and symptoms down the right leg”. The doctor said the symptoms suggested “sciatic nerve irritation”. The appellant gave Dr Casikar a history that, because of the left leg symptoms, she had limped on the right side and developed a disc injury. Dr Casikar’s diagnosis was “L2/3 and L3/4 disc protrusions”.
[55] Reply, pp 18–25.
Dr Casikar said the “new pathology” was “not related to [the appellant’s] previous workplace injury”. Dr Casikar said the earlier condition of meralgia paraesthetica had “effectively resolved”. The surgery for that condition was “successful”. He said he did not believe the appellant’s “present symptoms could be attributed to the injury of 2008”. Dr Casikar said the “present condition is independent of the work related injury”.
Dr Casikar reassessed the appellant and reported on 8 August 2016.[56] The doctor took a history that, following the surgery with Dr Bentivoglio on 24 June 2014, there was improvement but not complete resolution. The appellant said that when she was going to bed at home “she was limping and suddenly developed severe low back pain and extension of the pain along the right leg up to the knee”. The doctor described the appellant’s opinion, that limping on the left side had produced the problems in her back and right side, as “difficult to accept”. He said “[i]n my opinion, [the appellant’s] current complaints are not due to the injury of 2008”. He said:
“Perhaps the relationship between her present symptoms and the injury she sustained in 2008 is historical. There is no medical evidence to support that her continued symptoms and her new problems in the right leg are related to the injury of 2008. While there may be legal justification to associate her present symptoms with the injury of 2008, it would be difficult to support by an evidence-based medical opinion.”[57]
[56] Reply, pp 26–31.
[57] Reply, p 30.
Dr Casikar re-examined the appellant on 23 August 2018 and reported on the same day.[58] The doctor again recorded a history that, following the surgery on 24 June 2014, the appellant in her home went to the toilet and developed back pain and pain on the right side. She said the distribution of the pain was similar to that on the left side, but its “character” was very different. The doctor said that, on repeated examination, “the neurological symptoms were confined to the area of distribution on the lateral cutaneous nerves”. He described the distribution of pain, from the thigh to the knee, as “fairly typical of meralgia paraesthetica”. The doctor said it was “reasonable to accept that she has meralgia paraesthetica because of the workplace injury”. He made a “differential diagnosis” of “[c]onstitutional degenerative disease of the lumbar spine, incidental disc protrusions”. He said his opinion “regarding her pathology has not changed”.
[58] Reply, pp 32–38.
Dr Casikar referred to Dr Bodel’s reports. He noted that in a report dated 14 June 2018 Dr Bodel “changed his opinion”, Dr Bodel then said that there was a disc rupture at L4/5 and “she also had a consequential condition at the L2/3 segment”. Dr Casikar accepted there was an “acceptable” relationship between the injury in January 2008 and symptoms in the left thigh. He said he could not “find evidence to indicate a causal relationship between her workplace injury of 2008 and her symptoms of back pain, and indications for surgery subsequently”. He said “the work-related injury and the surgery in 2017 are unrelated”. Dr Casikar was asked to assess whole person impairment, which he did in respect of the lumbar spine. He said the only work injury was meralgia paraesthetica, which he assessed at three per cent. He said he did not accept the laminectomy was connected with the workplace injury. If that was included in the assessment, the permanent impairment was 14 per cent.

Dr Bodel’s reports

The earliest of Dr Bodel’s reports in evidence is dated 27 October 2015.[59] It refers to Dr Bodel having seen the appellant previously on 6 November 2013. There is nothing in evidence from the earlier occasion, it appears to have related to an “elbow and wrist injury” in November 2009, which Dr Bodel describes as “an unrelated matter”. The 2015 report sets out the history taken of the 23 January 2008 injury. It says the appellant “may have been briefly knocked unconscious” and had to leave work. She developed increasing low back and right leg pain, and pain down the front of the left thigh. She was “off work for a few weeks”, and back pain “slowly persisted”. It states that x-rays taken on 30 January 2008 showed “some minor degenerative changes”. It refers to an MRI scan dated 11 May 2009, said to show “evidence of disc pathology at the lumbosacral junction involving L4/5”. Dr Bodel referred to a history that the appellant “five years down the line” reported increasing back and right leg pain. Dr Bodel refers to the MRI scan taken on 26 September 2014, which showed “new pathology” at L2/3 and L3/4. The history says the appellant last worked in June 2014 and was terminated. On examination the doctor noted a diminished right knee jerk reflex, sensory loss in the L3 distribution, weakness of extension of the right knee, and mild positive signs of nerve root tension in the right thigh. The doctor referred to the reporting of Dr Casikar.
[59] ARD, pp 40–46.
Dr Bodel said the 2008 injury appeared initially to be only to the L4/5 level, which “settled fairly well”, although without complete recovery. He said over time the appellant “developed symptoms arising from a higher disc level without any specific additional accident or injury”. He said it was “likely therefore that there was some damage to the upper levels in the early fall as it was quite a heavy fall”. These asymptomatic changes “steadily deteriorated over time”. Dr Bodel said he accepted the causal link between the “injury on 23 January 2008 and the subsequent development of the higher lumbar disc injuries”. The doctor said there was no history of any other accident or injury. Dr Bodel said:
“In part this gentleman’s [sic] injury is a disease process of gradual onset which has been aggravated, exacerbated, accelerated and deteriorated by the nature and conditions of work in general.”

Dr Bodel said this probably involved “an internal disc disruption which has become more apparent because of the nature and conditions of work in general, rather than just an ‘uneven gait pattern'”. Dr Bodel agreed with Dr Bentivoglio’s recommendation of surgery to deal with the upper lumbar disc pathology.
Dr Bodel furnished a supplementary report dated 10 February 2017,[60] which commented, amongst other things, on Dr Casikar’s report dated 8 August 2016, a supplementary statement of the appellant dated 7 November 2016, a report of Dr Needham (a treating pain specialist) dated 29 February 2016 and Professor Jaeger’s report dated 12 December 2016 (regarding upper lumbar surgery).
[60] ARD, pp 47–50.
Dr Bodel said there was clinical evidence of right thigh wasting and sensory loss in the L3 distribution on the right when he last saw the appellant. He thought there was definite disc pathology in the area that Professor Jaeger recommended for treatment. He said the injury on 23 January 2008 “instigated her problem”. He said the “nature and conditions of work subsequently has caused aggravation, acceleration, exacerbation and deterioration as a result of the nature of her work in general”. Dr Bodel noted that Dr Casikar found no clinical evidence of radiculopathy, whereas Dr Bodel did when he examined the appellant. He said there was justification for the decompressive surgery recommended by Professor Jaeger.
Dr Bodel re-examined the appellant on 13 June 2018 and reported on 14 June 2018.[61] He described the previous recorded history and radiological investigations. He referred to the decompressive surgery carried out by Professor Jaeger to the upper lumbar spine on 2 February 2017. The doctor referred to the “more recent” development of pain in the interscapular region, which was the subject of investigations. He referred to other conditions that had arisen. Dr Bodel said that since his last previous examination, the appellant had suffered from “intracranial hypertension” that required surgical drainage, and haemangioma in the lungs. She was seeing a neurologist for migraines and was being treated for coeliac disease.
[61] ARD, pp 51–57.
Dr Bodel said that the appellant suffered a disc rupture at the lumbosacral junction in the fall in 2008. He said there was a “consequential condition” involving right sided disc rupture at L2/3 “as a result of the injury that occurred five days after her surgery done by Dr Bentivoglio to release the lateral cutaneous nerve of the left thigh”. In this incident the appellant suffered excruciating pain which caused her to collapse, after this she developed increasing symptoms down the right leg. The doctor said two previous MRI scans showed no pathology at L2/3 or L3/4 prior to this incident; following the event there was “a large right sided disc prolapse” at L2/3. Dr Bodel said the condition was not degenerative, it was not a disease process of gradual onset, there was no evidence of aggravation, acceleration, exacerbation and deterioration in this case.

Discussion

It is convenient initially to deal with Ground No. 2, that the Member erred in failing to give sufficient weight to the opinion of Dr Bentivoglio, in the reasons at [47]. The Member there said:
“Having regard to the medical evidence in this matter, I am not satisfied on the balance of probabilities that the [appellant] has established on a common-sense basis a causal link between the 2008 fall and the development of the lumbar spine symptoms. There is no explanation provided by Dr Bentivoglio as to the causal link between either the [appellant’s] fall in 2008 and any consequential condition developed in the L2/3 and L3/4 disc spaces. I do not say that as a criticism of Dr Bentivoglio, who is a treating specialist and as such often does not deal with notions of legal causation.”
The appellant submits there was sufficient probative force in the opinion evidence of Dr Bentivoglio to satisfy the appellant’s onus. It submits the Member failed to give any reason for not accepting this submission. The respondent refers to Dr Bentivoglio’s report dated 30 October 2014, which deals with the findings of upper lumbar pathology in the MRI scan dated 25 September 2014. Dr Bentivoglio describes these as new findings, “unrelated to the work injury she described in approximately, 2008”. The respondent submits this did not support Dr Bodel’s opinion.
The Member, in the reasons at [45], said:
“The [appellant’s] treating surgeon, Dr Bentivoglio likewise does not provide a definitive opinion to the effect that the [appellant’s] L2/3 and L3/4 lumbar symptoms are caused or are linked to her employment with the respondent. Whilst I accept the submission from the [appellant] that Dr Bentivoglio must have felt this was the case given he made a request for the respondent’s insurer to pay for the surgery, that of itself is not a sufficient evidentiary basis in my view to satisfy the onus of proof which the [appellant] bears, because he has not provided a report setting out an opinion as to why this is the case.”
The Member’s view, that Dr Bentivoglio’s preparedness to request payment for surgery did not, on its own in the circumstances, represent sufficient evidence to satisfy the onus on causation, was correct. The appellant effectively seeks to rely on an inference, drawn from Dr Bentivoglio’s request for the further surgery to be funded, although the appellant does not put it in those terms. One could not know what questions the doctor considered before making such a request or the basis on which he answered them. It is necessary that this step taken by Dr Bentivoglio be considered in conjunction with other available evidence going to the doctor’s view. In Bradshaw v McEwans Pty Ltd the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[62]
[62] (1951) 217 ALR 1, [5], see Luxton v Vines [1952] HCA 19; 85 CLR 352, [8].
Dr Bentivoglio’s opinion was set out in his report to the insurer dated 30 October 2014 (see [44] above). This constituted direct proof of the doctor’s opinion on the causation issue, rather than a proposed inference. The doctor said, of the upper lumbar protrusions, “this is a new finding, unrelated to the work injury she described in approximately 2008”. The inference the Member drew was not properly available. If the contrary view is taken, that the inference drawn by the Member was available, the probative force of that inference, in the face of the direct evidence of Dr Bentivoglio’s opinion (which was to the contrary) is slight. Dr Bentivoglio’s evidence, taken as a whole, did not support the appellant’s case on causation. The way in which the Member dealt with the doctor’s views in the reasons at [45] and [47] was in no way unfair to the appellant. Ground No. 2 fails.
It is convenient to next deal with Ground No. 3, which goes to the evidence of Dr Casikar. The aspects of Dr Casikar’s opinion to which the appellant refers are described at [30] above. The first of these (referred to at (a) of [30]) submits Dr Casikar failed to take account of Dr Bentivoglio’s opinion that the need for further surgery resulted from the injury in 2008. Dr Bentivoglio’s opinion in his report dated 30 October 2014 did not support the appellant on this causation issue. This reference in the appellant’s submissions can only be to the inference based on the request for insurer funding of the proposed further surgery. For reasons given above dealing with Ground No. 2, the probative weight of that inference, if any, was slight. The weight of Dr Bentivoglio’s opinion on causation, in his report dated 30 October 2014, was much greater. Dr Casikar correctly understood that Dr Bentivoglio regarded the new upper lumbar pathology as unrelated to the 2008 fall. The Member did not err in how he dealt with this.
The appellant refers to a passage in which Dr Casikar said “While there may be legal justification to associate her present symptoms with the injury of 2008, it would be difficult to support by an evidence based medical opinion.” (see subpara (b) of [30] above). The appellant submits “it is unknown what [Dr Casikar] meant” by this statement. The appellant also submits that Dr Casikar “does not apparently have a correct history of the Appellant’s condition post surgery June 2014 nor is there any explanation as to the statements made in his report.”[63]
[63] Appellant’s submissions, [7(9)].
The deficiencies in the history that are referred to are unclear. In Paric v John Holland Constructions Pty Ltd Samuels JA said:
“Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[64]
[64] [1984] 2 NSWLR 505, 509G–510B.
In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) said:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.”[65]
[65] [2011] NSWCA 11, [83].
A consideration of the extent to which deficiencies in an assumed history deprives an expert report of weight, involves identification of any deficiencies and a consideration of the extent and manner in which the expert opinion was dependent on matters unproved or otherwise different to the assumed history. I note that Dr Casikar, in his report dated 8 August 2016, was aware of the history of further injury at home following the surgery performed by Dr Bentivoglio in 2014. Dr Casikar referred to a further history:
“She limps when she walks around. Recently, when she was going to bed at home, she was limping and suddenly developed severe low back pain and extension of the pain along the right leg up to the knee.”[66]
[66] Reply, p 27.
Dr Casikar, in his report dated 23 August 2018, recorded:
“Following the decompression of her left lateral cutaneous nerve of the thigh, in the immediate post-operative period, she had very severe pain and local post-operative haematoma. During this period, she was limping because of the pain. While at home, when she went to the toilet, she developed back pain and she started noticing pain on the right side. This pain extended on the outer aspect of the right thigh up to the knee.[67]
[67] Reply, p 34.
Dr Casikar, in the report dated 8 August 2016, said “her opinion that limping on the left side has produced problems in her back and in her right side is difficult to accept”.[68] In his report dated 23 August 2018 Dr Casikar said the “work-related injury and the surgery in 2017 are unrelated”. The doctor did not make further comment regarding the consequences of any incident at home following the 2014 surgery.
[68] Reply, p 29.
The specific, alleged deficiency, identified in the history assumed by Dr Casikar, was that the doctor was unaware of Dr Bentivoglio’s opinion that the necessity for further lumbar surgery resulted from the 2008 fall. For reasons discussed above, that does not fairly put Dr Bentivoglio’s opinion regarding the need for the upper lumbar surgery. The submissions relating to Ground No. 3 do not otherwise identify specific alleged inadequacy in the history on which Dr Casikar’s opinion was based. The appellant’s submissions make no developed argument regarding how any deficiency in the doctor’s history affects the weight to be given to Dr Casikar’s opinion. Ground No. 3 fails.
The appellant, in her submissions on Ground No. 1, alleges error in the fact finding at [48] of the reasons, where the Member said:
“Dr Bodel, IME for the [appellant], provides conflicting basis for the alleged causal connections, however, they cannot stand side by side in my opinion. He initially indicated the nature and conditions of the [appellant’s] employment had given rise to the lumbar symptoms at the higher level against the background of the 2008 fall, followed by an unexplained change in his opinion to indicate the stumble which the [appellant] suffered in 2014 approximately one week after the lateral femoral nerve release was the actual cause. Dr Bodel changed his opinion, as he is perfectly entitled to, but did so without providing an explanation as to why this was the case or in my opinion providing sufficient explanation to establish the causal nexus between the alleged consequential condition and the original injury. For his part, treating neurosurgeon, Associate Professor Jaeger who carried out the 2017 lumbar surgery, does not provide a report on causation.”
The Member referred to Dr Bodel’s reasoning in his report dated 27 October 2015, summarised at [52] to [54] above. Dr Bodel on that occasion was given a history of an “uneven gait pattern” following the 2008 fall. The doctor preferred to attribute the additional, upper lumbar symptoms to the ‘nature and conditions’ of employment as opposed to the uneven gait. The doctor said that, in addition to the injury at L4/5 which was detected initially, the 2008 fall caused internal disc disruption at higher lumbar levels, which “became apparent” because of the ‘nature and conditions’ of the appellant’s work.
The Member referred to the discussion in Dr Bodel’s report dated 14 June 2018. On this occasion the doctor was given a history of the fall at home, some days after the surgery performed by Dr Bentivoglio in 2014 (see [15] above). Dr Bodel said the appellant suffered a right sided disc rupture at L2/3 in this incident (see [58] above).
The appellant submits that, on the initial consultation with the appellant, Dr Bodel failed to obtain “a proper history of the surgery, the subsequent leg pain and the fall”. She submits that on his second consultation he obtained such a history and made the diagnosis referred to immediately above. The appellant submits this “full and accurate history” is not apparently disputed. The appellant submits this is a common-sense explanation for the change in Dr Bodel’s opinion.
The appellant disputes a critical factor in the history (for the purposes of Dr Bodel’s ultimate opinion) being the occurrence of the incident at home in the days following Dr Bentivoglio’s surgery in June 2014. Mr Brazel, the respondent’s counsel, referred to “issues about the consequential injuries”. He referred to suggestions of the limp changing. He said that Dr Casikar and Dr Bentivoglio did not accept that gait abnormalities resulted in back problems.[69] Mr Brazel submitted that the incident in 2014, in the days following Dr Bentivoglio’s surgery, was not mentioned in a statement from the appellant until 18 December 2018. He submitted there was nothing in the general practitioner’s notes, or in the reports of Dr Bentivoglio, to corroborate it. It was not mentioned to Dr Bodel or Dr Casikar. (I note it is mentioned in Dr Bodel’s last report dated 14 June 2018, but not in the earlier reports.) The respondent submitted at first instance that the appellant had not discharged her onus to establish the factual basis of the alleged consequential conditions. [70]
[69] T 15.1–12.
[70] T 15.19–16.11.
The Member dealt with the incident where the appellant stumbled at home, in the days following the 2014 surgery, at [55] of his reasons (see [18] above). He accepted the appellant’s evidence that the incident occurred: “I do not doubt the [appellant’s] evidence that she experienced severe pain following that incident”. The Member expressed a view that “the mechanics of the fall as described by her are not, in my view, sufficient to have caused such significant pathology”. I have serious reservations regarding whether such a finding could be made by the Member on the basis that it fell within the realm of “common knowledge and experience”.[71] This is not raised as an issue on this appeal, for understandable reasons. The finding at [55] of the reasons follows on a discussion of the competing medical evidence, including a rejection of Dr Bodel’s opinion on this issue and acceptance of the competing views of Dr Casikar. The decision does not turn on the Member’s factual finding regarding the capacity of the fall at home to cause the relevant discal injuries.
[71] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724 (cited by McColl JA in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [91]); Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223; 85 ALJR 1130, [66]; Harrison and Siepen v Craig [2014] NSWWCCPD 48, [79].
The respondent’s submissions on this appeal again seek to agitate the issue of whether this incident occurred. The respondent should not, in my view, be permitted to do so. The point was decided against it at first instance, and it has not sought to file a notice of contention pursuant to r 125 of the Personal Injury Commission Rules 2021.
The Member at [48] and [55] of the reasons discussed his rejection of the opinion of Dr Bodel. In essence, Dr Bodel did not, when preparing reports prior to that dated 14 June 2018, have a history of the “stumble” which occurred at home in the days following the 2014 surgery. Dr Bodel was given that history when he examined the appellant on 13 June 2018. In his report dated 14 June 2018 Dr Bodel said the appellant suffered a “large right-sided disc prolapse at L2/3 following that event”. He described this as a “consequential condition”. He said:
“This lady’s clinical condition is not a degenerative condition, no[r] is it a disease process of gradual onset. There is no evidence of aggravation, acceleration, exacerbation and deterioration in this case.”[72]
[72] ARD, pp 55–56.
In the reasons at [48] (see [72] above) the Member contrasted this view with the doctor’s earlier reports. The Member pointed out the conflicting bases offered by Dr Bodel for supporting the appellant’s case on causation in the earlier reports, as opposed to the report dated 14 June 2018. The Member pointed out that the change of opinion was “unexplained”.
The appellant submits there was a common-sense explanation for the doctor’s change of opinion, which was that the doctor first obtained such a history on 13 June 2018.
It is necessary that the Member’s reasons be read as a whole.[73] The simple explanation that Dr Bodel dealt with the incident when he was given a history of it is true as far as it goes. In context, what the Member referred to in his reasoning was the need for a medical explanation of the change in the doctor’s opinion:
“It therefore appears that Dr Bodel’s opinion has altered between his initial reports in 2015 and his later opinions in 2018. Whether Dr Bodel had been appraised of the stumble following the cutaneous nerve release when he prepared his earlier reports, is unclear. Nevertheless, Dr Bodel has altered his view from there being a work-related aggravation of the [appellant’s] underlying lumbar condition at L2-L4 caused in the 2008 fall owing to the nature and conditions of her employment; to an alleged consequential condition brought about by a frank incident after the lateral femoral nerve release operation in 2014.”[74]
[73] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[74] Reasons, [37].
An indication of the change in Dr Bodel’s views on causation can be gleaned from contrasting the passage at [79] above (taken from the report dated 14 June 2018) with the following:
“In part this gentleman’s [sic] injury is a disease process of gradual onset which has been aggravated, exacerbated, accelerated and deteriorated by the nature and conditions of work in general.” (taken from the report dated 27 October 2015)[75]
“This lady had a frank injury on 23 January 2008 which instigated her problem.
The nature and conditions of work subsequently has caused aggravation, acceleration, exacerbation and deterioration as a result of the nature of her work in general.” (taken from the report dated 10 February 2017)[76]
[75] ARD, p 44.
[76] ARD, p 49.

It was open to the Member to conclude, as he did, that Dr Bodel’s reports contained internal contradictions. These unexplained inconsistencies represented a valid reason for the Member to not accept the doctor’s views, and to prefer the opinion of Dr Casikar. The appellant has not succeeded in establishing error within the meaning of s 352(5) of the 1998 Act (see [21] to [24] above). These inconsistencies had not been dealt with by, for example, obtaining supplementary evidence from Dr Bodel to explain his reasoning and ultimate opinion. In Caruana v Darouti the Court of Appeal said:
“A party who fails to provide a trial judge with appropriate assistance in relation to evidence generally (and expert evidence in particular) should expect to have a difficult time in persuading an appellate court that some different approach to the expert evidence should be taken.”[77]
[77] [2014] NSWCA 85 (per McDougall J, Leeming JA agreeing), [125].
Ground No. 1 fails. The various grounds having failed, the appeal does not succeed.

DECISION

The Certificate of Determination dated 24 March 2021 is confirmed.

Michael Snell
DEPUTY PRESIDENT

3 December 2021

[2021] NSWPICPD 45

10 December 2021