Mosawi v Baron Forge (NSW) Pty Ltd
[2022] NSWPICPD 48
•7 December 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48 |
APPELLANT: | Aqil Mosawi |
RESPONDENT: | Baron Forge (NSW) Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W4726/21 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 7 December 2022 |
ORDERS MADE ON APPEAL: | 1. The appellant is granted leave to appeal against the Member’s decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 14 January 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – nature of injury – determination of pathology – Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 applied – weight given to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 – decision maker not required to address every piece of evidence or argument in reasons – failure to address evidence or argument must be critical to case to establish error – Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 considered |
HEARING: | On the Papers |
REPRESENTATION: | Appellant: |
| Mr J Malouf, counsel | |
| Ayoub Lawyers | |
| Respondent: | |
| Mr P Stockley, counsel | |
| Moray & Agnew Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr J Wynyard |
DATE OF Member’s DECISION: | 14 January 2022 |
INTRODUCTION AND BACKGROUND
Aqil Mosawi, the appellant, was employed by the respondent as a machine operator. His duties included, in addition to operating machinery, the lifting of benchtops, slabs and other equipment.
On 28 October 2016, the appellant was carrying a caesarstone benchtop weighing approximately 50–60 kg outside of the respondent’s factory. He was carrying this benchtop with a colleague. They were both carrying the benchtop on their shoulders. The appellant stated that whilst carrying the benchtop on his shoulders in this manner, “I experienced immediate and severe back and chest pain. The pain in my back radiated up to my neck.”[1] The appellant then drove himself to Liverpool hospital for treatment.
[1] Appellant’s statement 24 September 2021, Application to Resolve a Dispute (ARD), p 2, [14].
The appellant claimed injuries to his lumbar, thoracic and cervical spines, with a combined whole person impairment of 15%. The respondent disputed the allegation with respect to injury to the cervical spine and it was this matter that was contested before Member Wynyard. The pleadings in those proceedings referred to the appellant sustaining an injury to his back which “radiated” to his chest and neck.[2] The matter was heard by Member Wynyard on 10 November 2021 with the parties agreeing that the only matter in dispute was whether the appellant injured his cervical spine. The Member entered an award for the respondent with respect to the asserted injury to the cervical spine. The Member separately ordered that the injuries to the appellant’s thoracic and lumbar spines be referred to a Medical Assessor for the purposes of whole person assessment.[3] This latter order is not the subject of any dispute on this appeal, save for the fact that the appellant asserts that his cervical spine injury should be included in the referral.
[2] ARD, p 7.
[3] Aqil v Baron Forge (NSW) Pty Ltd [2022] NSWPIC 20 (reasons).
The appellant appeals against the award made in favour of the respondent with respect to the asserted injury to his cervical spine.
PRELIMINARY MATTER
Shortly after this appeal was filed in February 2022, the fact that there was no recorded transcript of the hearing that took place before the Commission Member on 10 November 2021 was brought to both parties’ attention, and both parties at that time indicated their consent to proceed to have the matter determined in the absence of the transcript.
The parties were informed that this matter was allocated to me on 11 October 2022. Upon a perusal of the appeal file, I caused further enquiries to be made of the sound recording service provider who has once again confirmed that there is no sound recording and hence no transcript of the hearing which was conducted on 10 November 2021.
Notwithstanding the fact that consent was indicated by the parties prior to this matter being allocated to me, it falls to me to decide as a preliminary matter whether or not I can fairly and properly carry out my duties on this appeal in the absence of the transcript. Intervention on appeal 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.”[4]
[4] Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998.
Consequently, I listed this matter for directions hearing before me on 20 October 2022 where I posed the following questions for the parties to consider. This was done in order to assist me in deciding whether or not I could fairly and properly exercise my statutory function under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). I issued a Direction, posing the following propositions to the parties:
“1. Do the parties agree that the following took place before Member Wynyard on 10 November 2021:
(a)The matter was heard by telephone conference.
(b)Both parties were represented by counsel and solicitors.
(c)No oral evidence was called and as a consequence no cross-examination of any witness took place.
(d)No credit issues arose, the matter involved a consideration of the medical records and expert medical opinions.
(e)The matter proceeded on the basis of the parties’ oral submissions based upon the material that had been filed in the proceedings and to which the Member’s attention had been directed.
2. In terms of the Member’s Statement of Reasons:
(a)In the Member’s Statement of Reasons there is a heading entitled ‘Submissions’ which appears at reasons [89]–[110]. Are these 21 paragraphs an accurate summary of the parties’ submissions that were put to the Member?
(b)At [90] of the reasons, the Member described the mechanism of the incident being “common ground” between the parties. Is this statement an accurate representation of the parties’ positions regarding what occurred on 28 October 2016 and which is described in [90].
(c)At reasons [111], the Member stated that counsel for the appellant ‘raised every argument possible in a thorough examination of the evidence’. Counsel for the appellant is to advise whether or not the summary of his submissions which appear at reasons [99]–[105] accurately reflects the submissions made at the hearing.
(d)At [106] of the appellant’s submission, the appellant asserts as follows:
“It is worth noting, without the benefit of a transcript, that at no point did counsel for the Appellant state that ‘cervical spine’ was synonymous with ‘upper back’ and the Member erred in stating that such a submission was made (ARD 120).”
Counsel for the respondent is to advise whether or not he agrees with this submission.
(e)At [114]–[116] of the appellant’s submissions, the following is said:
“In a report dated 26 September 2017, a diagnosis was made of neck pain in relation to the subject incident by Rehabilitation Services by Altius.
This followed an initial workplace meeting with the Appellant on 27 June 2017.
The Member was directed to this evidence during the hearing, but failed to engage with it at all in his reasons. This was an error of law.”
Counsel for the respondent is asked to consider whether or not the Member had been directed to the report dated 26 September 2017 authored by Rehabilitation Services by Altius.”
3. I request the parties respond to me with respect to these questions in writing within seven days at which time I will decide whether I can proceed to hear the appeal.
4. I also invite the parties to consider a broader question, namely whether or not both parties consider, having regard to the matter in issue (whether the cervical spine was injured or not in the subject incident) and the material that is available, is the appeal capable of being fairly and properly heard having regard to ss 3, 42 and 43 of the Personal Injury Commission Act 2020 (the 2020 Act) absent a transcript.
5. I also invite the parties to consider whether or not, on the basis of any notes that both parties might possess with respect to the hearing on 10 November 2021, they can produce an agreed document which recounts what transpired at the hearing.”
Counsel for both the appellant and respondent supplied very helpful responses to the Directions in writing on 25 October 2022. In particular, both parties concur that the matters set out at Directions [1(a)–(e)] accurately reflect what took place before the Member. There is broad acceptance with respect to the description in the Member’s Statement of Reasons regarding submissions, although I acknowledge that in terms of the appellant’s submissions, this section of the decision “does not account for all the evidence I took the Member to, nor does it explain the detail of my submissions. I hold notes of each piece of evidence I took the Member to but no notes of my actual words.”[5]
[5] Appellant’s submissions dated 25 October 2022, response to Direction [2(a)].
Both parties confirm that there was no evidence which contradicted the claimant’s version of how he was injured.[6]
[6] Responses to Direction [2(b)].
In terms of Directions [2(d) and (e)], counsel for the respondent, quite decently, accepts counsel for the appellant’s assertion of what was said. I will proceed to deal with the matter on that basis.
Importantly, both parties in answer to Direction [4] agree that the matter can be dealt with fairly and properly absent the transcript.
LEGAL PRINCIPLES AND RELEVANT PROVISIONS
In Wyong Shire Council v Paterson[7] Giles JA said as follows:
“Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary.”[8]
[7] [2005] NSWCA 74 (Paterson).
[8] Paterson, [44].
Giles JA then said this:
“I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.”[9]
[9] Paterson, [44].
Pursuant to s 3 of the 2020 Act, the Commission has the following objects:
“3 Objects of Act
The objects of this Act are as follows—
…
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…”
Additionally, s 42 of the 2020 Act sets out the guiding principle to be applied to practice and procedure. Section 42 relevantly provides as follows:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
…
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
Further, s 43 provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
At the time that this hearing was conducted and at all times since, Procedural Direction PIC1 – Conduct of parties during proceedings (PD PIC 1) has been in force. Procedural Directions are made by myself as President under s 21 of the 2020 Act. At [36], PD PIC 1 says as follows:
“Parties will be given an opportunity to present their case through providing oral or written submissions, and, where leave is granted, through examination of a witness. Hearings are recorded. A copy of the recording will be made available to the parties in accordance with the Commission’s policy Audio recordings and transcripts.”
This policy states, inter alia, that:
“The Commission records all hearings. The Commission may provide a transcript of the audio recording of proceedings where:
· it has been prepared at the request of a Commission member;
· a Commission member has issued an ex tempore decision;
· an appeal or administrative review application has been lodged, and/or
· there exist other valid reasons.
Audio recordings and transcripts will be made available to parties at no cost.”
Consideration
Pursuant to PD PIC 1 and the Commission’s audio recordings and transcripts policy, both parties to this appeal had a legitimate expectation that a transcript of the hearing on 10 November 2021 would be available for the prosecution and defence of this appeal. Unfortunately, despite enquiries being made, neither a sound recording nor a transcript of the hearing on 10 November 2021 either exists or if it does exist, it cannot be located.
The power for a Presidential member to intervene on appeal depends upon the identification and correction of error.[10]
[10] Section 352 of the 1998 Act, see also Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [19].
I am aware of the Commission’s statutory mandate as provided for by ss 3, 42 and 43 of the 2020 Act. In summary form these provisions require the Commission is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. This is to be done in a manner with as little formality as possible and in terms of the decision that I must make as to whether or not this appeal can proceed, I am having close regard to s 43(3) of the 2020 Act. In this regard, I am cognisant of the cost and delay that would be associated with upholding the appeal due to a lack of transcript and remitting the matter to a member in the Workers Compensation Division of the Commission to hear and determine the entire matter a second time.
Mindful of Giles JA’s comments in Paterson, outlined above, the question to be answered is whether or not it is possible in this appeal, absent the transcript, for me to identify error with respect to what were the “real issues”[11] in the proceedings.
[11] Section 42(1) of the 2020 Act.
Before the Member, there was a single question to be decided, and that was whether or not the appellant injured his cervical spine in the subject incident on 28 October 2016.
I have been much assisted by counsel for both parties thoughtful and helpful responses to the Directions that I gave on 20 October 2022, in particular, the parties’ agreement as to what transpired before Member Wynyard on 10 November 2021 in terms of Direction [1]. In particular, I was concerned about two of the assertions made on appeal which are referred to in Directions [2(d) and (e)]. Obviously in normal circumstances where a transcript is available, I would examine the transcript in order to identify whether an argument was put which was then not dealt with by the Member in the decision. Were this to occur, considerations of the type examined by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs[12] would arise. However in light of the very proper response of the respondent to Directions [2(d) and (e)], I am satisfied that I am able to deal with the appellant’s assertions about the submissions identified in those two provisions of my Directions. In light of the lengthy decision written by the Member, the parties’ submissions on the appeal and their responses to my Directions, I am satisfied that I can fairly and properly determine this appeal. I am satisfied that even absent the transcript, particularly based upon the parties’ answers to the Directions made on 20 October 2022, I am able to identify error (if any) and correct the same should that result be necessary.
[12] [2003] HCA 26.
I am much obliged to both counsel for their exceedingly helpful and co-operative response to the entirely regrettable circumstance where no transcript exists of the hearing.
Consistent with ss 3 and 42 of the 2020 Act, and my obligations in determining an appeal, I will now proceed to determine this appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 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.”
I have had regard to Procedural Direction PIC2 – Determination of matters on the papers, Procedural Direction WC3 – Presidential appeals and questions of law, 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, specifically following consideration of the transcript issue. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any further 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 appellant identifies that the Member’s decision was interlocutory in light of the referral to a Medical Assessor, and as a consequence leave to appeal is sought by the appellant. The appellant also states that whilst this might be the case, the Member’s decision in effect finally disposes of rights. The respondent agrees with this latter submission but does not object to leave being granted if the decision is considered interlocutory.
I accept that the Member’s decision, whilst interlocutory in that it refers the lumbar and thoracic spines for assessment of whole person impairment, has the effect of finally disposing of rights in respect of the pleaded injury to the cervical spine. I am therefore of the opinion that, consistent with s 352(3A) of the 1998 Act, “determining the appeal is necessary or desirable for the proper and effective determination of the dispute.” The dispute is about whether the appellant has sustained a cervical spine injury and subsequently, which body parts of the appellant are to be referred for medical assessment for the purposes of determining whole person impairment. It is necessary that this cervical spine dispute be finalised before that next step is taken, and as a consequence I grant the appellant leave to pursue this appeal.
THE EVIDENCE
The appellant has pleaded 14 grounds of appeal, most of which ventilate the Member’s interpretation of evidence before him in respect of the cervical spine injury. I therefore summarise the evidence which is germane to the issue in dispute here, and detail the specifics of that evidence in my consideration of each ground below. What is apparent from a review of the evidence is the divergent opinions provided by each specialist in respect of the nature of the asserted cervical spine injury.
In his statement of 24 September 2021,[13] the appellant states that he had not experienced pain in his neck, back, arms or legs prior to the incident on 28 October 2016. The pain was so severe that he attended hospital the same day. Twice within this statement (at [14] and [17]), he describes this neck pain as “radiating” from his back, and says that it worsened, causing spasms in his right shoulder and headaches.
[13] ARD, p 1.
The Emergency Department records of Liverpool Hospital confirm that the appellant attended on the day of the work incident, describing a “sudden onset of upper back pain … now pain radiating to neck”.[14] Despite this mention of “neck”, the records also consistently focus on back pain.
[14] ARD, p 72.
Clinical records of All Care Mediclinic[15] confirm attendances from 29 October 2016, primarily with Dr Haddad, Dr Rassam and Dr Alexander (general practitioners) of this clinic. Initial consultations and certificates of capacity were issued with a diagnosis of “upper and lower back strain”. On 12 December 2016, there is mention in the records of a “normal” cervical spine examination which appears to have been conducted following complaints of right shoulder pain. An x-ray is ordered, which revealed no abnormalities in the cervical spine. In January 2017, there is subsequent mention of “bilateral neck pain and tail bone”, but the “reason for visit” is again, lumbar and thoracic back pain. Interestingly, an undated certificate of capacity issued at that time diagnoses “sciatica due to L4/5 disc prolapse as well as neck pain”.[16] This diagnosis appears to be accepted by Rehabilitation Services by Altius, who provided services to the appellant in 2017 on this basis, as noted in a closure report of 26 September 2017 on page 129 of the ARD. In June 2017, Dr Haddad appears to refer to the reports of Dr Teychenné, consultant neurosurgeon, and accepts Dr Teychenné’s diagnosis of an “incomplete cord lesion”. This diagnosis is thereafter referred to sporadically in the clinical records and certificates of capacity (alongside reports of back pain).
[15] ARD, p 81.
[16] ARD, p 139.
Dr Teychenné commenced treatment of the appellant some time in February 2017. The doctor reported his findings to Dr Haddad on 20 February 2017,[17] 23 February 2017,[18] 27 February 2017,[19] 28 February 2017,[20] 23 March 2017[21] and 24 March 2017,[22] although it is unclear whether an examination took place on each occasion. In every report, Dr Teychenné recounts an extensive neurological examination which had taken place, and the detailed symptoms in both upper and lower limbs, as well as the spine. Whilst there is limited mention of symptoms or pain in the neck, the doctor consistently provides an opinion that his findings confirmed clinical evidence of an incomplete cervical cord lesion and recommends an MRI scan of the cervical spine. On 16 April 2017, Dr Teychenné informs Dr Haddad of the appellant’s recent episodes of neck stiffness, headaches and upper limb weakness.[23] Again, extensive examination including EMG studies take place, the results of which affirm the doctor’s opinion of an incomplete spinal cord lesion, pending review of an MRI scan. It seems this scan takes place by the time of Dr Teychenné’s last treating report to Dr Haddad of 6 June 2017.[24] In this report, Dr Teychenné confirms consistent symptomology to the appellant’s limbs and spine following extensive neurological examination. The doctor confirms his opinion that the appellant’s clinical picture is consistent with an incomplete cervical cord lesion, but this is notwithstanding an MRI of the cervical spine which “did not show any evidence of central canal stenosis nor did he have any evidence of a macroscopic cord lesion”.
[17] ARD, p 163.
[18] ARD, p 161.
[19] ARD, p 159.
[20] ARD, p 157.
[21] Reply to Application to Resolve a Dispute (Reply), p 58.
[22] ARD, p 153.
[23] ARD, p 166.
[24] ARD, p 151.
It is somewhat difficult to reconcile this opinion noting the absence of findings in the radiology, but Dr Teychenné explains his rationale some time later, in a report obtained for the purposes of the appellant’s proceedings, dated 28 August 2021.[25] In this report, the doctor maintains that the appellant’s clinical picture was consistent with an incomplete central cervical cord lesion. Whilst an MRI did not show any macroscopic changes in the spinal cord, this was “not unusual in the younger patient who experiences a clinical situation consistent with an incomplete cervical cord lesion”. Dr Teychenné concludes that the cervical cord lesion was caused by the heavy lifting incident of 28 October 2022 and opines “I would consider that the insurer was liable for Mr Mosawi’s clinical cervical spinal cord injury”.
[25] ARD, p 38.
Regrettably, the 2017 MRI scan which is referred to by Dr Teychenné in his reports is not in evidence. What is in evidence is an MRI of the cervical spine of 5 November 2018, which too did not reveal any abnormalities apart from an incidental cyst.[26] Specifically, the report concludes that the “cord is normal in size, signal and configuration”, with no evidence of cord compression.
[26] Reply, p 42.
Dr Papatheodorakis, injury management consultant, was engaged by the insurer to provide a report dated 19 July 2017. [27] The doctor diagnoses the appellant with cervico-thoracic and lumbosacral spine soft tissue injuries despite noting Dr Teychenné’s opinion of an “incomplete cord lesion”. Significantly, Dr Papatheodorakis, in his role as an injury management consultant, discusses the appellant’s condition with Dr Haddad and records that they were both in agreement that the appellant was suffering from “non-specific (no cord/neural impingement) neck and low back pain”.
[27] ARD, p 174.
The appellant was examined by Dr Herald, orthopaedic surgeon, at the request of his solicitors. In a report dated 15 September 2020,[28] Dr Herald takes a consistent history of the incident on 28 October 2016 causing immediate back and chest pain. Dr Herald records that the appellant developed neck and lower back pain in the subsequent months requiring referral to Dr Teychenné, and was “initially thought to have a partial cord syndrome … but eventually he was diagnosed as having a pain syndrome”. Following examination revealing tenderness and some restricted movement in the cervical region, Dr Herald diagnosed the appellant with a whiplash injury to the cervical spine with non-verifiable radicular complaints to both shoulder blades, “secondary” to his thoracic spine injury caused by the incident of 28 October 2016. Dr Herald assessed 5% whole person impairment of the cervical spine, 5% to the thoracic spine and 5% to the lumbar spine, totalling 15%.
[28] ARD, p 31.
Dr Wallace, orthopaedic surgeon, independently examined the appellant for the respondent. Dr Wallace provided two reports, dated 3 March 2017[29] and 7 December 2020.[30] Curiously, in the initial 2017 report, when taking a history from the appellant, there is no mention of the cervical spine, other than the doctor’s reference to a “plain film” of 13 December 2016 which revealed no abnormality. The diagnosis is in respect of the lumbar spine only. In the subsequent 2020 report, Dr Wallace takes a similar history, but notes that the appellant now complained of cervical spine symptoms, although could not recall when they commenced. Dr Wallace conducted an examination of the cervical spine movement and noted an MRI of 5 November 2018 did not show any cervical spine abnormality. Dr Wallace confirmed a diagnosis in respect of the thoracic-lumbar spine only and considered there was no objective medical evidence of a work-related injury to the cervical spine. Dr Wallace thus did not assess impairment to the cervical spine and found 0% whole person impairment in respect of the thoracic and lumbar spines.
[29] ARD, p 22.
[30] ARD, p 13.
THE MEMBER’S REASONS
The Member had a single question to determine, and that was whether or not the appellant injured his cervical spine in the subject incident. The Member has determined that the appellant did not, and as a consequence the appellant’s cervical spine did not become part of the Member’s referral to a Medical Assessor to assess whole person impairment.
The Member’s decision did not involve any credit findings with respect to the appellant. Rather, the contest involved a consideration of the medical evidence and whether or not it provided any support for the appellant’s contention regarding his cervical injury. The Member examined at length the medical case, including notes from the Liverpool Hospital, All Care Mediclinic, Dr Paul Teychenné, Dr Jonathan Herald, Dr Raymond Wallace and Dr G Papatheodorakis.[31]
[31] Reasons, [28]–[88].
Notwithstanding the lack of a transcript of the hearing in this matter, it is apparent from a consideration of the decision that both parties drew the Member’s attention to the decision of the former Workers Compensation Commission in Inghams Enterprises Pty Limited v Belokoski.[32] Belokoski is a case about whether or not it is necessary to identify the precise pathology involved in the injury. The appellant asserted that it was not necessary,[33] the respondent in reply submitted that it was necessary and the need to identify pathology was dependent upon the circumstances of the individual case.[34]
[32] [2017] NSWWCCPD 15 (Belokoski).
[33] Reasons, [105].
[34] Reasons, [106].
Ultimately, the Member found contrary to the appellant based upon:
(a) the lack of cervical pathology revealed upon investigation, and
(b) According little weight to the opinions of the appellant’s treating doctors, and in particular Dr Teychenné, instead preferring the opinion of Dr Wallace, retained by the respondent.
These findings were based upon a close review of the medical opinion. The Member found that Dr Papatheodorakis was perhaps “the most positive of the expert medical opinions”.[35] This doctor opined that the appellant suffered from “non-specific chronic (mechanical) cervico-thoracic and lumbar back pain”. The Member however said that Dr Papatheodorakis’s expertise pertained to the field of injury management, and given that “the investigations of the cervical spine were normal, a diagnosis of a non-specific chronic pain does not satisfy me that there was any pathological change in Mr [Mosawi’s] cervical spine sufficient to establish injury.”[36] The appellant was treated by his general practitioner, Dr Haddad. It appears that Dr Haddad took over the appellant’s treatment from 13 January 2017. Dr Haddad’s opinion or record that the appellant suffered from “[b]ilateral neck pain and tailbone” on 19 January 2017, the Member found “does not have any probative significance”.[37] In other evidence, Dr Haddad adopted Dr Teychenné’s opinion that the appellant suffered from an incomplete cervical cord lesion.
[35] Reasons, [115].
[36] Reasons, [115].
[37] Reasons, [119].
The Member gave Dr Teychenné’s opinion little weight. The Member found that Dr Teychenné’s “method of diagnosis involved the use of extremely technical language entirely dependent upon his interpretation of his examination.”[38]
[38] Reasons, [127].
The Member then found as follows:
“The resort to the use of technical terms which are unintelligible without a degree in neuroscience, does not fulfill the obligation of an expert to explain the basis of his opinion. It is one thing to set out the conclusions reached as a result of a scientific enquiry, it is entirely another thing to do so with [sic, without] any explanation as to why the conclusion had been reached.”[39]
[39] Reasons, [128].
The Member ultimately rejected Dr Teychenné’s opinion that the investigations of the appellant’s cervical spine, whilst being termed to be normal, might not be normal at a microscopic level. The Member considered this to be “speculation of an irresponsible and quite damaging nature”.[40]
[40] Reasons, [131].
The final doctor relied upon by the appellant was Dr Herald, whose stated opinion was that the appellant had suffered a “whiplash injury”. The basis of this opinion was not explained and the Member did not accord this opinion much weight.[41]
[41] Reasons, [114].
Ultimately, the Member placed reliance upon the medico-legal opinion of Dr Raymond Wallace who had been retained by the respondent. The Member’s findings in relation to Dr Wallace were as follows:
“I find Dr Wallace’s opinion to be commensurate with the probabilities in this case regarding any involvement of the cervical spine. He took no history of any complaints from Mr [Mosawi] at their first consultation of 3 March 2017 and in the face of the normal x-ray result of 13 December 2016 conducted no examination. In his second report of 7 December 2020, having been made aware of the opinion of Dr Teychenné, Dr Wallace noted the normal results of the MRI scan of 5 November 2018 and concluded that there was no objective support.”[42]
[42] Reasons, [125].
Clearly, the Member considered and was persuaded by the consistency between Dr Wallace’s opinion and the results of the various investigatory studies undertaken of the appellant’s cervical spine.
The contest in this appeal relates to how the Member addressed the appellant’s medical case and whether or not that was in accordance with principle.
The Certificate of Determination issued on 14 January 2022 records:
“The Commission determines:
1. There will be an award for the respondent for the claim for injury to the cervical spine.
2. I remit the remaining claims to the President for referral to a Medical Assessor for a whole person assessment on the following bases:
(a)Date of injury: 28 October 2016
(b)Matters for assessment: thoracic spine, and lumbar spine
(c)Evidence: Application to Resolve a Dispute and attached documents, and Reply and attached documents.
A brief statement is attached setting out the Commission’s reasons for the determination.”
GROUNDS OF APPEAL
The appellant pursues the following grounds of appeal:
Ground A: The Member erred in failing to properly apply the correct legal test. This was a mixed error of fact and law.
Ground B: The Member erred in relying upon the opinion of Dr Wallace in circumstances where his opinion cannot be said to have been given in a ‘fair climate’. This was an error of law.
Ground C: The Member erred in finding that the precise pathology in this case was very much a live issue and, thus, it is inferred that the Member considered he needed to make a finding of the precise pathology in order for the appellant to succeed under Section 4. This was an error of law.
Ground D: The Member erred in rejecting the opinion of Dr Haddad regarding diagnosis or erred in failing to provide sufficient reasons in not accepting Dr Haddad. This was a mixed error of fact, law and discretion.
Ground E: The Member erred in rejecting the opinion of Dr Papatheodorakis. This was a mixed error of fact, law and discretion.
Ground F: The Member erred in his discretion in rejecting the opinion of Dr Teychenné. This was an error of discretion.
Ground G: The Member erred in failing to deal with the appellant’s own evidence. This was an error of law.
Ground H: The Member erred in failing to deal with the evidence from rehabSolutionsaustralia. This was an error of law.
Ground I: The Member erred in finding that Dr Papatheodorakis contacted Dr Haddad and they both agreed there was no cord lesion and that there was unanimous agreement between three of the four medical practitioners that the diagnosis of a partial cord lesion could be discounted. This was an error of fact.
Ground J: The Member erred in failing to deal at all with the diagnosis reached by Rehabilitation Services by Altius. This was an error of law.
Ground K: The Member erred in finding that from December 2016 onwards, the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018. This was an error of fact.
Ground L: The Member erred in finding that Dr Haddad makes no specific mention of the cervical
spine in the clinical notes. This was an error of fact.
Ground M: The Member erred in finding that the entry “bilateral neck pain” does not have any probative significance. This was an error of law.
Ground N: The Member erred in finding that the appearance of “incomplet [sic] cord lesion” written in the GP records did not occur until 19 June 2017 and in finding that any inference to be drawn regarding the entry of “incomplet cord lesion” by the GP would be that it occurred to the lumbar spine and it was more likely that the entry was a repetition of Dr Teychenné’s diagnosis, which by then had been the subject of eight reports. This was an error of fact.
LEGISLATION
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) defines injury as:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
SUBMISSIONS
I will deal with the submissions made with respect to each ground of appeal.
DISCUSSION
As to Ground A: The Member erred in failing to properly apply the correct legal test. The was a mixed error of fact and law
The appellant identifies that the dispute in this matter was “confined to whether or not the appellant suffered an injury to his cervical spine under s 4(a) of the 1987 Act.”[43]
[43] Appellant’s written submissions, Annexure A, [8].
The appellant’s submissions then proceed to describe several authorities referred to in Wood DP’s decision of Dywidag Systems International Pty Ltd v Melksham[44] regarding a finding of injury.[45]
[44] [2020] NSWWCCPD 41.
[45] Appellant’s written submissions, Annexure A, [9]–[14]. The authorities referred to include Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264; Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104, and Belokoski.
These authorities, described by the appellant in these passages of the written submissions, are not in dispute. In broad terms, whether or not a decision-maker is required to make specific findings about changes in pathology will depend upon the circumstances of the particular case.[46]
[46] See Belokoski, per Snell DP.
The appellant asserts that the Member failed to apply this legal test and then goes on to argue that “a fair and proper reading of the evidence plainly disclosed a physiological change or disturbance of the Appellant’s normal physiological state in that he had neck pain immediately as a result of the subject incident, which worsened and continued to date.”[47]
[47] Appellant’s written submissions, Annexure A, [53].
In response, the respondent argues that the “submission does not identify the relevant legal test or the manner in which his decision is said to misapply any test. The submission does not identify that part of the Member’s reasons said to embody the alleged error.”[48]
[48] Notice of Opposition, submissions in support, p 2, [1].
With respect to the respondent’s submission, I think it is tolerably clear that the appellant’s argument in this ground challenges the manner in which the Member failed to make a finding of injury in favour of the appellant, and this is said to be contrary to the authorities which I have referred to in the appellant’s written submissions.[49]
[49] Appellant’s written submissions, Annexure A, [9]–[14].
The Member, in an extensive set of reasons, considered the evidence in the following way. At reasons [12], the Member is quoting from the appellant’s statement of 24 September 2021,[50] as follows:
“As he carried the benchtop, Mr [Mosawi] said that he experienced ‘immediate and severe back pain and chest pain. The pain in my back radiated up to my neck’.”[51]
[50] ARD, p 1.
[51] Reasons, [12].
The Member then continues to describe the appellant’s evidence from reasons [13]–[26]. Starting at reasons [28], the Member conducts a review of the medical evidence to reasons [88]. The Member then in the section of his reasons entitled “Discussion” considers and construes the evidence. Ultimately, the Member makes the following finding:
“132. Finally, in Belokoski, Snell DP referred to a submission that the arbitrator had failed to determine the nature of the injury. At [222] he said:
‘222. … the Commission (in the bifurcated system) has jurisdiction to determine whether a worker suffered injury, and the nature of the injury. The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case. In Kempsey Shire Council v Kirkman[2010] NSWWCCPD 104 one of the grounds of appeal was that an arbitrator had erred in ‘failing to determine the nature of the injury’. Roche DP at [82] dealt with this ground saying:
‘The Council has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury’.’
133. In the circumstances of the present case, the precise pathology of the alleged injury was very much a live issue. The evidence suggested different causes, as I have just discussed, and the nature of the injury was a relevant and debated issue.
134. Mr Malouf submitted that Dr Wallace’s opinion should be discounted because Dr Wallace did not take the history that the hospital notes on 28 October 2016 did record complaints about Mr [Mosawi’s] neck. I do not regard that omission as being of such moment.
135. The lack of any complaint regarding the cervical spine in the clinical notes of All Care Mediclinic tends to confirm that the hospital record accurately reported the principal complaint as being of injury to the thoracic spine. X-rays were taken of that spinal area, and the hospital notes at various times noted complaints relating to ‘thoracic’, or ‘upper back’, or ‘central back pain’. The neck was mentioned on two occasions – one describing ‘pain radiating to the neck’, and the other simply mentioning the neck in the handwritten nursing notes.
136. Whilst the mentions of the neck may well have been of forensic value had there been evidence of continuing investigation and management of a cervical spine condition, no such evidence was before me. As indicated, the x-ray of the cervical spine on 13 December 2016 followed complaints of symptoms in the right upper extremity.
137. For the above reasons, there will be an award in favour of the respondent for the claim for injury to the cervical spine.”
As the authorities provide with respect to injury, the requirement to make specific findings about pathology will depend upon the particular circumstances of the case. The Member has clearly directed his mind to this question at reasons [132]. At reasons [133] the Member considered that this was a case where the precise pathology of the alleged injury did in fact need to be closely considered.
The appellant has not stated how this approach, in terms of the application of the correct legal test, was an error. There is a suggestion under this ground, although it is not argued as such, that the Member’s finding contrary to the appellant’s case was contrary to the weight of the evidence.[52] There is a suggestion in the argument advanced under Ground A that this might be an error of fact. I do not need to resolve this issue as it is not what has been asserted as the ground of appeal being pursued .
[52] See Appellant’s written submissions, Annexure A, [53]–[55].
This particular appeal ground alleges that the Member applied the incorrect legal test with respect to the task of finding injury.
I have been taken to no passage of the Member’s decision where such an error is said to have occurred. The Member at reasons [132] and [133] describes the correct legal test[53] before proceeding to find that this was a case where it was necessary for the precise pathology of the alleged injury to be found.[54] This is consistent with the authorities referred to by the appellant.
[53] Reasons, [132].
[54] Reasons, [133].
Far from the Member incorrectly applying the relevant legal test with regards to the finding of injury, the Member has correctly identified the test and then proceeded to apply it. As no error of law in this approach has been identified, Ground A is dismissed.
As to Ground B: The Member erred in relying upon the opinion of Dr Wallace in circumstances where his opinion cannot be said to have been given in a ‘fair climate’. This was an error of law
The appellant in this ground challenges the Member’s reliance upon the expert medical opinion of Dr Raymond Wallace who was retained as the medico-legal expert by the respondent.
The appellant asserts that there are deficiencies in Dr Wallace’s opinions, in particular referring to Dr Wallace’s failure to deal with the Liverpool Hospital notes.[55] This, the appellant argues, means that Dr Wallace’s opinion was not given in a “fair climate”.
[55] Appellant’s written submissions, Annexure A, [58]–[63].
The reference to the term “fair climate” is of course a reference to Paric v John Holland (Constructions) Pty Limited.[56] This is the quote referenced in the appellant’s list of authorities and for the purposes of dealing with this appeal point, it is convenient to set those passages out, although I will commence with the passage commencing at 509F.
“Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
[56] [1984] 2 NSWLR 505 (Paric), 509G–510B.
The respondent does not dispute the assertion that in Dr Wallace’s two reports, no mention is made of the Liverpool Hospital notes. I have reviewed Dr Wallace’s two reports, 3 March 2017[57] and 7 December 2020.[58] Whilst it is clear that the doctor takes a history of the appellant’s attendance at the Liverpool Hospital, there is no reference to the Liverpool Hospital notes, and in particular what was recorded therein, in Dr Wallace’s records.
[57] Reply, p 9.
[58] Reply, p 18.
The Liverpool Hospital notes for the appellant’s attendance on 28 October 2016 record the following. At ARD, p 78 is a copy of “Liverpool Health Emergency Department Clinical Record”. This describes the “triage” which took place on 28 October 2016 at 14:15 hours. There is no mention of a neck injury on this document.
The next document, at ARD, p 79, is a handwritten document which appears to be a set of notes associated with the appellant’s admission on that date. I am satisfied that this is an appropriate assumption to make as some of the information on this handwritten document is repeated in a document titled “Preliminary Report ED Case History Notes”.[59] This document can be read except for two short entries which do not appear to be relevant.
[59] ARD, p 72.
The handwritten notes at ARD, p 79 record the following:
“27 y/o ♂ back pain
12:45 pm
upper back
neck
<50kg
20–25 minutes → cannot straighten up. comes and go.
[indecipherable] seconds
No tingling →
work
Past med hx
Kidney stones (GP)
Smoke: No
ETOH: Social
Stone tech (stone mason)
Medication: Tramadol kidney
Allergies: [indecipherable]”
The respondent argues that these notes are not material. A perusal of the Liverpool Hospital notes[60] do not consistently record complaints of neck pain. The respondent argues that the absence of these notes from Dr Wallace’s opinion is not material.
[60] ARD, pp 64–79.
In Dr Wallace’s first report of 3 March 2017, there is no mention of any complaint of pain to the appellant’s neck. The history the doctor records is:
“He noted the onset of pain at his upper back in the course of his duties at work on 28 October 2016.”[61]
[61] Reply, p 10.
In Dr Wallace’s second report, dated 7 December 2020,[62] he takes a history that the appellant does “not recall when his cervical spine symptoms commenced”. He takes a history of pain in the appellant’s cervical spine and conducts an examination of that area of the appellant’s body.[63] Dr Wallace then makes the following finding:
“There is no objective medical evidence that Mr Mosawi suffered any injury at his cervical spine at the time of his work incident on 28 October 2016.
The mechanism of injury he describes of a lifting strain is not consistent with being the cause of any significant cervical spinal pathology.
I note that he was reviewed by his Local Medical Officer on multiple occasions in the period November 2016 to January 2016 and did not mention any symptoms at his cervical spine until 12 December 2016, some 6 weeks post-injury.”[64]
[62] Reply, p 18.
[63] Reply, p 21.
[64] Reply, p 22.
I think it is a reasonable inference from Dr Wallace’s second report that he considers that there was a delay in complaint by the appellant, namely that there were no complaints regarding the appellant’s cervical spine until six weeks post injury.
When one considers the passages that I have extracted above from Paric, it is clear from that case that a discrepancy in an expert report may or may not be fatal as to whether the expert opinion could be relied upon.
In this case, Dr Wallace’s opinion is not predicated upon a delay in complaint. Rather, Dr Wallace’s opinion is based upon a consideration of the investigations of the appellant’s cervical spine which have not revealed any abnormality. Dr Wallace’s ultimate opinion, that there is no objective evidence of cervical spine injury, is based upon an examination of the investigations. In Dr Wallace’s second report, beneath the subheading “Investigations”, he records the various investigations that the appellant has had over time, and there is no assertion that this assessment is in any way incomplete or deficient. Dr Wallace, having examined that material, reached the ultimate opinion that he did. Namely, that there was no objective evidence of cervical injury.
When I consider the contents of the Liverpool Hospital notes, it is difficult to discern how their absence from Dr Wallace’s opinion serves to undermine that opinion in a Paric sense. The doctor has not provided his opinion based upon an absence or significant delay in complaint although it did figure in his considerations. Had that been the basis of Dr Wallace’s opinion, in a Paric sense this could be seen to be incorrect, because at the very least there is a record of the appellant’s “neck” in the notes. The difficulty with the notes is their brevity. At ARD, p 72 the following appears:
“Patient states cannot straighten up, and now pain radiating to neck.”
This entry was recorded by the Member at reasons [28]. The Member has construed these entries at reasons [135] and [136]. I do not consider that the absence of the mention of these notes by Dr Wallace undermines the weight that the Member gave to his opinion. This entry is at best only marginally suggestive of an actual neck injury. An available reading of the entry suggests an injury elsewhere with the pain radiating from that site to the appellant’s neck. The difficulty with the note is its brevity. As a consequence, it is hard to see how the absence of this material from Dr Wallace’s reports undermined the opinions expressed therein. The opinion was based, as I have described above, on a consideration of the objective evidence, and not on an absence or delay in complaint.
I do not consider that the doctor’s failure to either mention these notes or the failure to be briefed with the notes has meant that his opinion has been given in a climate which is not fair. If it is a “discrepancy” of the type referred to in Paric, it is not of a quality to adversely affect Dr Wallace’s opinion.
Ground B is dismissed.
As to Ground C: The Member erred in finding that the precise pathology in this case was very much a live issue and, thus, it is inferred that the Member considered he needed to make a finding of the precise pathology in order for the appellant to succeed under Section 4. This was an error of law
This appeal ground is a derivation of the argument pursued by the appellant in Ground A.
The appellant alleges that the Member made an error of law in deciding that “for the Appellant to succeed, he must prove to the Member’s satisfaction the precise nature of the cervical spine injury. This is consistent with the Member’s determination.”[65]
[65] Appellant’s written submissions, Annexure A, [68].
The appellant continues to argue as follows:
“The present case was not one in which the Appellant was required to prove the precise nature of his injury. Indeed, the authorities make it clear that there is no such necessity.”[66]
[66] Appellant’s written submissions, Annexure A, [70].
The respondent disputes this approach and notes the divergence in the medical opinions relied upon by the appellant from Drs Herald, Teychenné and Papatheodorakis.[67] The respondent argues that:
“In these circumstances, it was entirely appropriate for the Member to consider what the relevant mechanism of injury and the likely resulting pathology may have been.”[68]
[67] Respondent’s submissions, [11].
[68] Respondent’s submissions, [12].
The respondent then proceeds to argue that this was consistent with decided authority including Belokoski.[69]
[69] Respondent’s submissions, [13].
The error of law asserted by the appellant has not been established. Belokoski is not authority for the proposition now asserted by the appellant. As I have quoted above from Belokoski, the relevant principle is this:
“The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case.”[70]
[70] Belokoski, [222].
This was precisely the task that the Member was engaged in. The Member was presented with a medical case from the appellant which was divergent as to the causes of the asserted cervical spine injury. Dr Teychenné was of the opinion that the appellant had suffered an incomplete cervical cord lesion. This opinion appears in various places in Dr Teychenné’s series of reports. Dr Herald, the appellant’s medico-legal expert, stated that the appellant had suffered a “Whiplash injury to the cervical spine with non-verifiable radicular complaints to both shoulder blades.”[71]
[71] ARD, p 33.
Dr Papatheodorakis was of the opinion that:
“Mr Mosawi sustained cervico-thoracic and lumbosacral spine soft tissue injuries following the lifting incident at work on 28 October 2016. Mr Mosawi has undergone various imaging studies. These excluded any significant cord or nerve root lesions.”[72]
[72] ARD, p 176.
I would note that the statement by Dr Papatheodorakis that the various imaging studies “excluded any significant cord or nerve root lesions” is nowhere disputed in the appellant’s case.
As I have remarked above, the appellant’s medical opinions were divergent. These divergences are set out above. It is clear from a reading of the Member’s reasons that the Member was very much alive to this problem in the appellant’s case and considered that this was the kind of case as contemplated in Belokoski which required findings about pathology and whether these findings supported the asserted injury.
In terms of the application of principle (Belokoski) the Member was not in error. This appeal ground has not been sustained for the reasons expressed here and in Ground A.
As to Ground D: The Member erred in rejecting the opinion of Dr Haddad regarding diagnosis or erred in failing to provide sufficient reasons in not accepting Dr Haddad. This was a mixed error of fact, law and discretion
The appellant argues that the Member “never actually rejected, nor properly explained why he did not accept, Dr Haddad’s opinion that the Appellant suffered a cervical spine injury as a result of the subject incident.”[73]
[73] Appellant’s written submissions, Annexure A, [74].
The appellant cites Dr Haddad’s opinion of 24 January 2017 in a medical certificate of that date[74] and in a letter written to the insurer on 11 July 2017.[75] In this latter letter, Dr Haddad agrees with Dr Teychenné’s opinion that the appellant is suffering from an incomplete cervical cord lesion.
[74] ARD, p 139.
[75] ARD, p 172.
The appellant argues that the Member never engaged with the actual diagnosis evidenced in the medical certificate[76] and failed to explain why Dr Haddad’s opinion could not be accepted.
[76] ARD, p 139.
At ARD, p 139 the following appears:
“MEDICAL CERTIFICATION
Diagnosis of work related injury/disease
Sciatica Due to L4/5 Disc prolapse, Neck Pain
Patient stated date of injury 28/10/2016”.
The respondent contends that the attendances with Dr Haddad were not contemporaneous with the injury and do not support any finding of injury to the neck per se.[77] The respondent also argues that:
“The Member did not reject evidence from Dr Haddad that there was a neck or cervical injury. Dr Haddad never so stated. The Member simply found that his evidence did not support a finding of neck injury.”[78]
[77] Respondent’s submissions, [17].
[78] Respondent’s submissions, [18].
The complaint with respect to Ground D asserts that Dr Haddad’s opinion was to the effect that the appellant suffered a cervical spine injury as a result of the subject incident.[79] The appellant complains that “the Member never engaged with the actual diagnosis as evidenced in the medical certificate and failed to explain why Dr Haddad could not be accepted.”[80]
[79] Appellant’s written submissions, Annexure A, [74].
[80] Appellant’s written submissions, Annexure A, [77].
The contents of the certificate I have set out above. I accept the respondent’s submission that “he did not describe a neck injury. He simply referred to neck pain.”[81]
[81] Respondent’s submissions, [15].
I appreciate that Dr Haddad was presented with a form and doing the best he could, he completed the form in terms which were brief to the point of obscurity. I do not accept the appellant’s submission that this certificate constitutes an opinion that the appellant had suffered a cervical spine injury. The certificate itself is a poor basis to substantiate the submission that the appellant now makes. In this regard I mean no criticism of Dr Haddad, he was dealing with the certificate that he had been presented with. However there is simply insufficient information or reasoning set out by Dr Haddad in order for the description of “neck pain” to be construed to constitute an opinion supportive of a cervical spine injury. Furthermore, the appellant’s diagnosis changed depending on the certificate, with Dr Rassam, for example, providing an early diagnosis of “upper and lower back strain”[82], and Dr Haddad later changing his diagnosis to reflect Dr Teychenné’s opinion of an incomplete cervical cord lesion.[83]
[82] ARD, p 120.
[83] ARD, p 135.
Even if I accept the appellant’s assertion that Dr Haddad’s “opinion” (and I use that term advisedly) was not dealt with by the Member, the Member is not required to deal with every piece of material that was before him.[84]
[84] Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates Property).
In terms of the letter written to the insurer on 11 July 2017,[85] this document is a two page set of four questions forwarded to Dr Haddad by the insurer, EML. The questions that are asked are about the diagnosis of incomplete cord lesion, which Dr Haddad answers by referencing the appellant’s assessment by Dr Paul Teychenné. On one view, Dr Haddad is not positing his opinion in this document forwarded to the insurer, rather Dr Haddad is relaying the opinion of Dr Teychenné. In that circumstance, there is no opinion attributable to Dr Haddad for the Member to deal with.
[85] ARD, p 172.
Even if I accept that Dr Haddad’s diagnosis is to the same effect as Dr Teychenné’s opinion, there is no reasoning set out in this certificate certifying as to how Dr Haddad came to this opinion.
In this regard I again mean no criticism of Dr Haddad. He was provided with a form by the insurer asking for information which he duly provided in good faith. But this is a different thing from providing a report with a reasoned medical opinion.
Dr Haddad’s opinions viewed objectively did not require the Member to deal with them in the manner now asserted by the appellant.
Ground D is not established and is dismissed.
As to Ground E: The Member erred in rejecting the opinion of Dr Papatheodorakis. This was a mixed error of fact, law and discretion
The appellant alleges that the Member “rejected” the opinion of Dr Papatheodorakis,[86] and that this finding was erroneous for three reasons. The appellant asserts:
(a) Dr Papatheodorakis did not only diagnose non-specific chronic pain, rather “he very clearly opined that the Appellant suffered a cervico-thoracic soft tissue injury at work on 28 October 2016. The [Member] failed entirely to deal with that diagnosis.”
(b) The Member erred at law in requiring himself to be satisfied that there was a pathological change to the appellant’s cervical spine. This was the wrong test. In any event the appellant argues that Dr Papatheodorakis[87] viewed the scans and concluded the appellant still had a neck injury.
(c) For the same reasons as advanced in the first and second prayers under this ground, the appellant alleges that the Member failed to provide sufficient reasons to explain why the diagnosis was not open on the evidence. This, the appellant argues, was entirely consistent with the appellant’s evidence about neck pain.[88]
[86] Reasons, [115].
[87] ARD, p 176.
[88] Appellant’s written submissions, Annexure A, [82]–[86].
The respondent asserts that the purpose of Dr Papatheodorakis’s retainer was with respect to treatment and rehabilitation. The respondent says it is not clear that the doctor had access to all the clinical and medico-legal material.[89]
[89] Respondent’s submissions, [21].
As a result of these facts, the respondent says that the doctor’s comments need to be considered “in context” and asserts that this is what the Member did.[90]
[90] I note the role of an injury management consultant is mandated by s 45A of the 1998 Act and governed by Part 6 of the SIRA Workers Compensation Guidelines, which stipulates that they are “facilitators” of return-to-work outcomes and whose functions do not include “an opinion on causation or liability”.
The Member made the following finding regarding Dr Papatheodorakis:
“Dr Papatheodorakis, whom Mr Malouf included in his list of four doctors, was perhaps the most positive of the expert medical opinions, describing on 19 July 2017 a ‘non-specific chronic (mechanical) cervico – thoracic and lumbar back pain’. However the expertise of Dr Papatheodorakis pertained to injury management, and his diagnosis appeared to be related to the complaints made by Mr [Mosawi] during the examination. The concern of Dr Papatheodorakis was as to Mr [Mosawi’s] management, and in the face of the unanimous opinions of all medical practitioners (including Dr Teychenné) that the investigations of the cervical spine were normal, a diagnosis of a non-specific chronic pain does not satisfy me that there was any pathological change in Mr [Mosawi’s] cervical spine sufficient to establish injury.”[91] (emphasis added)
[91] Reasons, [115].
The rules of evidence do not apply in proceedings before the Commission.[92] As a consequence, the question of whether a report such as that of Dr Papatheodorakis is admissible does not arise. Rather, it is a question of weight. In Hancock v East Coast Timber Products Pty Limited[93] Beazley JA noted that even though the Commission was not bound by the rules of evidence, it “is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.”[94] Her Honour went on to say that “the question of the acceptability of expert evidence will not be one of admissibility but of weight.”[95]
[92] Section 43(2) of the 2020 Act.
[93] [2011] NSWCA 11 (Hancock).
[94] Hancock, [82].
[95] Hancock, [83].
Strictly, I do not read the Member’s discussion of Dr Papatheodorakis’s opinion at reasons [115] as being a rejection of the report as asserted. Rather, consistent with Beazley JA’s remarks in Hancock, the Member was unable to give the opinion such weight as to assist in the establishment of injury. I will consequently deal with this ground of appeal on that basis, as it is not correct to assert that the opinion had been rejected.
The first basis on which the appellant says that the Member erred is that the Member did not deal with the diagnosis of cervico-thoracic soft tissue injury at work on 28 October 2016.
Pausing here, I would note that the Member’s obligation to give reasons is prescribed by the statute. Reasons are to be brief.[96]
[96] Section 294(2) of the 1998 Act, r 78 of the Personal Injury Commission Rules 2021.
Further, as McHugh JA said in Soulemezis v Dudley (Holdings) Pty Ltd:[97]
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.” (emphasis added)
[97] (1987) 10 NSWLR 247, 280 (Soulemezis).
The history which Dr Papatheodorakis took was that in the subject incident, the appellant “felt sharp upper back pain”.[98] The doctor then took a brief history before describing the appellant’s “current status”. The doctor then at the section of his report entitled “Investigations” reviewed the various scans and their reported findings.[99] The doctor then states, beneath the heading “Opinion/Diagnosis”:
“Mr Mosawi sustained cervico-thoracic and lumbosacral spine soft tissue injuries following the lifting incident at work on 28 October 2016. Mr Mosawi has undergone various imaging studies. These excluded any significant cord or nerve root lesions.
…
ln summary, Mr Mosawi’s current presentation is consistent with a diagnosis of non-specific chronic (mechanical) cervico-thoracic & lumbar back pain.”[100]
[98] ARD, p 175.
[99] ARD, p 176.
[100] ARD, p 176.
As I have described above, the Member dealt with this opinion at reasons [115].
The problem with the appellant’s submission in this aspect of Ground E is that the opinion of injury relied upon by the appellant does not accord with the history taken by Dr Papatheodorakis, which was of “upper back injury”. However, even if one were to ignore that problem with the report, the Member’s essential finding was that he was not satisfied “that there was any pathological change in Mr [Mosawi’s] cervical spine sufficient to establish injury.” This was a finding that was within the Member’s discretion as the first instance decision maker. Whilst he did not deal with the initial statement regarding injury which I have set out above, the net effect of the Member’s finding was to not be satisfied that Dr Papatheodorakis’s opinion provided support for the appellant’s assertion of cervical injury for the reasons outlined at reasons [115]. This is the substance of the decision reached by the Member. In Roncevich v Repatriation Commission,[101] Kirby J warned against an “overly pernickety examination of the reasons” when reviewing decisions of busy administrative tribunals. Rather, the focus should be upon “the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
[101] [2005] HCA 40, [64].
The Member was not satisfied that there was a pathological change in the appellant’s cervical spine sufficient to establish injury, this was the substance of the issue at hand and it is clear from the Member’s reasons why he was not satisfied with the appellant’s case.
This did not involve the Member in any error.
The second reason advanced under this ground is a repetition of the arguments raised in Grounds A and C which I have dismissed. For the reasons I have expressed in Grounds A and C, this reason said to make out Ground E is not established.
Finally, it is alleged that the Member failed to provide sufficient reasons as to why the diagnosis was not open on the evidence. As I have set out above, reasons do not have to be lengthy or elaborate.[102] The substance of the issue being dealt with by the Member was whether or not the opinion of Dr Papatheodorakis provided any support for the notion that the appellant suffered a pathological change in his cervical spine in order to establish injury.[103] This is precisely the undertaking that the Member was performing when reviewing the doctor’s evidence at reasons [115]. His reasons were brief and to the point, noting that “the investigations of the cervical spine were normal”.[104] It is tolerably clear that the Member was not persuaded by Dr Papatheodorakis’s opinion based upon the clear investigatory studies which did not reveal objective signs of injury to the cervical spine. This was the basis of the Member’s decision, which was succinctly expressed. The Member was not required under the statute, the Rules or the authorities that I have referred to, to express in any greater detail the reasons as to why he was not persuaded by the doctor’s opinion.
[102] Soulemezis.
[103] As per Belokoski, [222].
[104] Reasons, [115].
This appeal ground is not established and is as a consequence dismissed.
As to Ground F: The Member erred in his discretion in rejecting the opinion of Dr Teychenné. This was an error of discretion
The appellant asserts that the Member incorrectly assessed Dr Teychenné’s evidence before rejecting it. The appellant asserts that Dr Teychenné was an appropriately qualified expert who made certain clinical findings, namely that the appellant suffered from an incomplete spinal cord lesion, and that the basis for this opinion had been appropriately explained.
It is asserted that the Member’s approach to dealing with this expert evidence was wrong.[105]
[105] Appellant’s written submissions, Annexure A, [92].
The respondent argues that the Member “afforded the opinions of Dr Teychenné careful and detailed consideration.”[106]
[106] Respondent’s submissions, [23].
The respondent asserts that the submission made by the appellant in its written submissions at [92] incorrectly states the role of expert opinion. The respondent submits as follows:
“His submission at para 92 misstates or misunderstands the role of expert opinion in adversarial litigation. It is an exception to one of the exclusionary rules of evidence, where a person has specialised knowledge based on education training or experience. However, the receipt of such evidence is always subject to the expert explaining to the lay or judicial decision maker the basis of his/her decision, the pathway of his/her reasoning and the assumptions upon which the opinion is based. To do otherwise would be to abrogate the decision-making responsibility to the expert.”[107]
[107] Respondent’s submissions, [25].
The respondent then argues that the Member was unable to discern Dr Teychenné’s path of reasoning, and as a consequence it was accorded little weight by the Member.[108]
[108] Respondent’s submissions, [26].
Principles
Before embarking upon a consideration of this Ground of Appeal, it is necessary to set out the legal principles that apply to the first instance decision-maker in construing or weighing expert evidence.
In terms of the approach to expert evidence, I have set out above some principles from Hancock. The relevant sections from Hancock in terms of this appeal ground are as follows:
“In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421, McColl JA (Giles and Tobias JJA agreeing) observed, at [127]:
‘While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 [the Workers Compensation Commission Rules 2006, r 15.2] provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.’
(The Workers Compensation Commission Rules 2006, r 15.2 superseded, but replicated in identical form, the Workers Compensation Commission Rules 2003, r 70.)
Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
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. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”[109] (emphasis added)
[109] Hancock, [81]–[83].
Rule 73 of the Personal Injury Commission Rules 2021 is in substantially the same terms as the former Workers Compensation Commission Rules referred to in this extract.
To this authority I would also add the following remarks regarding the approach to expert evidence in the Commission. The expert has to expose their path of reasoning in reaching their opinion. This reasoning then must have a connection to the view reached and the specialised knowledge said to be held by the expert.[110]
[110] Dasreef Pty Ltd v Hawchar [2011] HCA 21, [42].
And finally, in South Western Sydney Area Health Service v Edmonds,[111] McColl JA found as follows:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39–40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.
The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”[112]
[111] 2007 NSWCA 16 (Edmonds).
[112] Edmonds, [130]–[132].
Dr Teychenné’s opinion
Dr Teychenné’s reports can be grouped into two categories. The first category is a series of reports addressed to Dr Haddad dated 20 February 2017,[113] 23 February 2017,[114] 27 February 2017,[115] 28 February 2017,[116] 23 March 2017,[117] 24 March 2017,[118] 16 April 2017[119] and 6 June 2017.[120]
[113] ARD, p 163.
[114] ARD, p 161.
[115] ARD, p 159.
[116] ARD, p 157.
[117] Reply, p 58.
[118] ARD, p 153.
[119] Reply, p 52.
[120] ARD, p 151.
Ground H has not been established and is dismissed.
As to Ground I: The Member erred in finding that Dr Papatheodorakis contacted Dr Haddad and they both agreed there was no cord lesion and that there was unanimous agreement between three of the four medical practitioners that the diagnosis of a partial cord lesion could be discounted. This was an error of fact
The appellant challenges two findings that were made by the Member at reasons [113] and [124]. The appellant says these findings are incorrect based upon a reading of the evidence. Reasons [113] and [124] read as follows:
“113. Although Mr Malouf submitted that four doctors had supported the concept that the incident of 28 October 2016 caused injury to the cervical spine, he did concede that there was no unanimity as to the pathology involved. However, there was unanimous agreement between three of those four medical practitioners that the diagnosis of a partial cord lesion could be discounted, which view was also adopted by Dr Wallace.”
“124. The best conclusion I can reach about the contents of the clinical notes is that they were concerned mainly with thoracic and lumbar back pain issues. In any event, I accept the report of Dr Papatheodorakis which recorded that he had contacted Dr [Haddad] and that Dr [Haddad] had agreed that there was no cord lesion in Mr [Mosawi’s] cervical spine.”
The relevant section of Dr Papatheodorakis’s report is as follows:
“TELEPHONE LIAISON
Dr Haddad was contacted today and kindly allowed time to discuss this case at length. Dr Haddad agreed the diagnosis was currently of non-specific (no cord/neural impingement) neck and low back pain, management should involve conditioning/psychotherapeutic interventions, regular reviews are required for anticipated upgrades to at least full-time suitable duties; and at the conclusion of this therapy, consideration to his long-term prognosis.”[146]
[146] ARD, p 176.
The description set out by the Member at reasons [113] and [124] does not accord with what is recorded as the discussion between Dr Papatheodorakis and Dr Haddad. The Member has described this as referencing a “cord lesion”, when the note actually refers to an opinion of “no cord/neural impingement”.
Although not expressly stated by the appellant in submissions, I assume that the error alleged is an error of fact.
I do not read the parties’ submissions as disagreeing that the Member has not accurately recounted the entry in Dr Papatheodorakis’s report that I have set out above, in his findings at reasons [113] and [124].
So the first error asserted by the appellant under this ground has been made out, namely that the Member was in error in terms of how he has described the section of Dr Papatheodorakis’s report dealing with the discussion between Dr Papatheodorakis and Dr Haddad.
The second aspect of this appeal ground though is really directed to how the Member used this aspect of the evidence to support his conclusion that there was “unanimous agreement between three of those four medical practitioners that the diagnosis of a partial cord lesion could be discounted, which view was also adopted by Dr Wallace.”[147]
[147] Reasons, [113].
For the purposes of dealing with this appeal ground, I will accept that the Member made findings at reasons [113] and [124] as asserted by the appellant, although I think it is arguable that the impugned passages are not of such a quality as to constitute a “finding” on a piece of evidence.
It is difficult to discern what can be made of the note entitled “telephone liaison” between the two doctors. I accept that it accurately records what transpired between the two doctors in terms of a discussion between medical colleagues. However there is no explanation in that note, and I mean no criticism of the doctors, as to how that opinion was reached and whether or not they considered or discounted the existence or not of an incomplete cervical cord lesion (which was Dr Teychenné’s diagnosis). An available reading of this note might lend support to this view, but the probative value of the note is not high. But in terms of the Member’s second finding, namely that there was unanimous agreement amongst three of the four doctors, this could be seen as true notwithstanding the inaccuracy of the recording of the note. This note might have had some utility had it set out the basis for the opinion and that it was an opinion which differed from what the Member found. Clearly these two doctors provide no support for the notion posited by Dr Teychenné of an incomplete cervical cord lesion.
Notwithstanding the fact that the Member has in error incorrectly attributed an opinion to Dr Papatheodorakis and Dr Haddad, for this error to be determinative on appeal it must have affected the result.[148]
[148] Walshe v Prest [2005] NSWCA 333 (Walshe), [27]. Also see Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339, (Akora Holdings) [17]–[20] per Basten, JA.
The error made by the Member is not of such a quality to affect the result. Neither Dr Papatheodorakis’s nor Dr Haddad’s opinion supports the opinion of Dr Teychenné in terms of his diagnosis of an incomplete cervical cord lesion. The note of the “telephone liaison” certainly does not support the incomplete cervical cord lesion diagnosis, it is silent on that matter. I accept that it was not correct of the Member to state that there was “unanimous agreement” as he did do at reasons [113]. Even though this expression “unanimous agreement” is not correct, that does not then serve to provide support for Dr Teychenné’s opinion which, for the reasons which I have expressed above, the Member was correct to afford little or no weight to.
In the circumstances, notwithstanding the Member’s error that I have identified above, the error has not affected the result and as a consequence, this appeal ground is not established.
Ground I is dismissed.
As to Ground J: The Member erred in failing to deal at all with the diagnosis reached by Rehabilitation Services by Altius. This was an error of law
This appeal point is brief. The appellant says that in a report dated 26 September 2017[149] Rehabilitation Services by Altius in a document entitled “Rehabilitation Closure Report” posited a diagnosis of neck pain in relation to the subject incident.
[149] ARD, p 129.
The appellant asserts as follows:
“The Member was directed to this evidence during the hearing, but failed to engage with it at all in his reasons. This was an error of law.”[150]
[150] Appellant’s written submissions, Annexure A, [116].
Before turning to the respondent’s reply to this assertion, this is one of the aspects of the appeal which was potentially affected by the lack of transcript. Clearly, I cannot refer to the transcript to confirm the submission that was made by the appellant which is now called in aid of this appeal ground. Counsel for the respondent says as follows in response to the Direction issued by the Commission on 20 October 2022:
“I have no note or independent recollection. Counsel for the appellant informs me that he did. He has shown me the notes that he prepared in preparation for submissions which refer to the report at ARD 129. I accept that in all likelihood he referred to the report in his submission.”[151]
[151] Respondent’s submissions, 25 October 2022, [3(e)].
Consequently, I will proceed on the basis that the submission as asserted at appellant’s written submissions, Annexure A, [116], was made by the appellant.
A consideration of the Member’s reasons confirms that this report was not referred to by the Member.
The respondent submits as follows with respect to this particular report:
“The only forensic utility of the Rehabilitation records in the context of the injury issues, was to the extent that they might contain a history of the onset of neck symptoms. They do not. At best they record an absence of neck complaint in October and November 2016 together with a history in June 2017 of neck symptoms that come and go (not a history given by the appellant himself in his statement).
In any event the submission that the physiotherapist had made a diagnosis is not supported by the evidence contained in these 3 reports. There was no reason for the Member to give any consideration to this evidence.
The proposition can be tested by asking, what forensic value, relevant to the issue of neck injury was available from this body of evidence? The answer must be ‘none’. Therefore, any failure to refer to the material cannot constitute an error warranting the setting aside of the Certificate of Determination.”[152] (emphasis in original)
[152] Respondent’s submissions, [42]–[44].
The report of 26 September 2017
A consideration of the report in broad terms reveals that the occupational therapist was attempting to facilitate the appellant’s return to a role with the respondent, modified for his capacities.[153]
[153] See ARD, p 129, section entitled “Rehabilitation Goal”.
The report includes a long narrative section entitled “Summary of Progress”[154] which relevantly says as follows:
“Rehabilitation Services conducted a workplace meeting with Mr Mosawi and his employer, Sabah on the 27.06.2017. The purpose of the workplace meeting was to obtain a history of Mr Mosawi’s lower back injury and neck pain, his current functional capacity and the psychological factors influencing his recovery and return to work process. Mr Mosawi reported experiencing severe pain symptoms of his lower back and neck that ‘come and go’.”[155]
[154] Commencing ARD, p 130.
[155] ARD, p 130.
The summary then describes how the occupational therapist was attempting to facilitate or coordinate the appellant’s modified return to work with the respondent by consulting with the appellant, his employer and his treating doctor, Dr Haddad. The occupational therapist was attempting to identify modified work duties, in consultation with these parties, which were within the appellant’s work capacities having regard to his reported symptoms.
The one section of this summary which deals with a diagnosis is as follows:
“Mr Mosawi was diagnosed with Sciatica due to L4/5 Disc Prolapse as well as neck pain by treating Physician, Dr Haddad at the initial stage of his injury.”
At best, this is not a diagnosis made by Rehabilitation Services by Altius, as is asserted in this appeal ground, rather it is the recording by the occupational therapist of the treating doctor’s opinion that had been related to her. I have not been taken to any passage in this report which constitutes the opinion said to be held by the author of the report which sets out in terms why the complaint of neck pain relates to the subject incident.
This appeal ground effectively alleges a constructive failure to exercise jurisdiction. Namely, the appellant made various assertions to the Member about the utility of this report to the question of cervical spine injury which was not dealt with by the Member upon a reading of the decision.
This issue has recently been examined by the Court of Appeal in Ming v Director of Public Prosecutions (NSW).[156] Kirk JA said as follows:
[156] [2022] NSWCA 209 (Ming).
“12. Here, the applicant’s second category in effect alleges a constructive failure to exercise jurisdiction. A wrongful denial of, or failure to exercise, jurisdiction can be jurisdictional error, including by a court: note Craig at 177. Constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter. That matter might, for instance, be a statutory precondition to the exercise of the power which it was necessary for the decision-maker to be satisfied of before the power is enlivened. Or it might be a critical argument raised by a party.
13. Such constructive failure can overlap with other types of jurisdictional error. Such overlap is not surprising when it is understood that the term jurisdictional error is to a significant extent a label of conclusion, and that it is not possible neatly to map out the metes and bounds of the notion: note Kirk at [64], [66], [71]–[73]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [77] per Robertson J; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [2]–[3] per Allsop CJ and [62] per Griffiths J.
14. The variant of constructive failure invoked here was that discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov). In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts’ was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]–[25]. Kirby J similarly found a constructive failure in that case where the decision-maker’s mistake ‘amounts to a basic misunderstanding of the case brought by an applicant’: at [88].
15. A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.
16. Thus in Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] Meagher JA stated (with the agreement of Payne and White JJA):
‘a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim ...’
17. Similar points were made by Allsop CJ, Markovic and Colvin JJ in CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57, in the context of considering an argument that a decision of the Federal Circuit Court was infected with jurisdictional error (at [34], citation omitted):
‘the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered.’”[157] (emphasis added)
[157] Ming, [12]–[17].
There are thus a number of principles arising from Ming. They are:
(a) it is not necessary for a decision-maker to address every argument or piece of evidence in delivering reasons;
(b) the mere failure to consider evidence or address an argument or submission which may be contingent or otherwise insignificant is not sufficient, and
(c) the question is whether the failure to consider or address certain issues or arguments involved a failure to address central or critical elements of the case or claim.
In short, not every failure to address a piece of evidence or argument will result in jurisdictional error.
This was a case about whether or not the appellant suffered an injury to his cervical spine (however asserted) in the subject incident. There was contest about whether or not the appellant made relevant complaints of cervical or neck injury to treating practitioners and then there was a contest about whether there was cervical or neck pathology suggestive of injury and the various opinions posited by medical practitioners arising from consideration of the investigations and clinical findings. Self-evidently, “injury” in terms of the appellant’s neck was the matter in contest.
The question that arises is: does the 26 September 2017 report referred to in this appeal ground constitute a piece of evidence that the Member was duty bound to deal with, in accordance with the approach to this question expounded by Kirk JA in Ming?
In my view the answer must be no, the Member was not required to deal with this piece of evidence. There is no “diagnosis” made by Rehabilitation Services by Altius in this report of the relevant quality such as to demand the Member’s attention. At its highest, the report recounts an opinion held by Dr Haddad. I accept that the occupational therapist contacted Dr Haddad and faithfully recorded that opinion in this report. But there is no adoption of that opinion by the occupational therapist, it is recounted as part of the history and function of the occupational therapist in attempting to effect the appellant’s return to work. This report is not helpful in the Member’s task of deciding the question regarding the asserted cervical injury.
The Member did not have to refer to or deal with this report. There was no error in the Member failing to do so and as a consequence this appeal ground is dismissed.
As to Ground K: The Member erred in finding that from December 2016 onwards, the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018. This was an error of fact
This ground of appeal asserts that the Member made an error in fact finding in accordance with the terms of the ground itself. The submission is not developed, rather the appellant’s approach has been to assert the ground and then at [117] of his written submissions in subparagraphs numbered (a) through (g) point to areas of the evidence mentioning the cervical spine between December 2016 until the MRI of 5 November 2018 to establish that the Member was in error.
The appellant has not identified the passage within the Member’s reasons where this error is said to have been made in this part of the submissions. However beneath the heading “The Member’s Findings”,[158] the appellant appears to identify the passage at reasons [118] which, whilst not expressed as the appeal ground, corresponds to the appeal ground. I have reviewed the Member’s reasons in their entirety and it seems to be that the impugned passage appears at reasons [118].
[158] Appellant’s written submissions, Annexure A, [50(i)].
I should remark at this point the respondent has not made any submissions in response to this ground of appeal. Notwithstanding this, I still have to be satisfied of the existence of error.
Reasons [118] reads as follows:
“I bear in mind that the contents of clinical notes must be approached with some caution, considering the busy clinical situation under which they are made. However, the fact that Dr Rassam specifically examined the cervical spine and had it x-rayed the following day suggests that the symptoms described in the right upper extremity raised a concern that there might have been some radicular involvement of the cervical spine. Once the x-ray showed no abnormality, the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018, which appears to have been taken at the behest of Dr Teychenné, and which again showed no abnormality.”
Turning to each of the subparagraphs (a)–(g) in the appellant’s written submissions, Annexure A [117], the following is apparent.
As to paragraph [117(a)]
This attendance with Dr Haddad on 19 January 2017 is specifically dealt with by the Member at reasons [119]. The Member found that the entry “bilateral neck pain” does not have any probative significance and that its meaning was difficult to comprehend.
As to paragraph [117(b)]
The appellant relies upon a WorkCover New South Wales medical certificate dated 24 January 2017,[159] and in particular the entry describing “Neck Pain”. I have dealt with this WorkCover certificate of Dr Haddad with respect to Ground D in terms of construing that document. On one view, the Member was in error to put the proposition so highly to the effect that “the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018”.[160] Another reading of the reasons at [117] and [118] is that the Member is describing investigatory studies in those paragraphs, and in particular an x-ray and an MRI. I would also note that the Member cautions himself, quite appropriately, regarding the contents of clinical notes, before remarking that “the fact that Dr Rassam specifically examined the cervical spine and had it x-rayed the following day suggests that the symptoms described in the right upper extremity raised a concern that there might have been some radicular involvement of the cervical spine.”[161] I think it is tolerably clear that the Member is looking for objective circumstances of cervical or neck pain which were acted on in terms of some investigation or treatment.
[159] ARD, p 139.
[160] Reasons, [118].
[161] Reasons, [118].
As to paragraph [117(c)]
In this subparagraph, the appellant points to the letter Dr Haddad wrote to the insurer, EML.[162] I have also dealt with this issue with respect to Ground D. The appellant correctly identifies that Dr Haddad was relating the diagnosis of an incomplete cord lesion which had been made by Dr Teychenné. I have dealt with this opinion at length with respect to Ground F and the problems associated with that opinion.
[162] ARD, 172.
As to paragraph [117(d)]
The appellant refers to ARD, p 99, containing the clinical notes recorded by Dr Haddad. These notes record what Dr Haddad was told, including “pain Neck [radiate] both shoulders” which led to Dr Haddad issuing a prescription.[163] There is no attempt to link this consultation with Dr Haddad to any allegation of cervical injury, rather it simply states the reason for a medical visit and the treatment prescribed by the doctor.
[163] ARD, p 100.
As to paragraph [117(e)]
There is reference to a document which records a consultation with Dt Atheel Alexander on 3 October 2018 which does record the appellant complaining about neck pain and “O/E neck tender”.[164] The doctor made a request for an MRI of all spinal vertebra (cervical, thoracic, lumbosacral) and prescribed some medication.[165] My assumption is, given that this consultation took place on 3 October 2018, that this was for the MRI which was undertaken on 5 November 2018. No opinion is posited by the doctor, complaints are recorded and a referral made. I do not see that any of this is in dispute.
[164] ARD, p 106.
[165] ARD, p 107.
As to paragraph [117(f)]
The appellant points to an entry at ARD, p 109 with respect to 12 November 2018. This consultation is outside the period complained of in this appeal ground (being December 2016 to 5 November 2018) and as a consequence I do not need to deal with it.
As to paragraph [117(g)]
This subparagraph asserts that “Dr Teychenné suspected, tested and treated the Appellant for a cervical cord lesion throughout the year 2017 (ARD 109)”. Firstly, the reference to ARD, p 109 and Dr Teychenné appears to be incorrect as at that page appears notes of surgery consultations with the general practice that the appellant was consulting. It is true, however, that at ARD, p 109, the diagnosis of “Incomplet[e] Cord Lesion/Back pain” appears twice. I am prepared to accept that the incomplete cord lesion referred to here is the incomplete cervical cord lesion about which Dr Teychenné had been conducting examinations and who made that diagnosis. I think this is the only sensible way to read that aspect of the clinical notes at ARD, p 109, noting the difficulties sometimes with clinical notes. The Member has dealt with Dr Teychenné’s opinion at length in his decision. Dr Teychenné’s reports were summarised by the Member at reasons [48]–[73] before the Member reached the dispositive section of his decision which dealt with Dr Teychenné’s opinions at reason [126]–[131]. I have dealt with Dr Teychenné’s opinion at length with respect to Ground F. The Member’s decision needs to be read as a whole. I would note that what the Member appears to have been concerned with at reasons [117]–[118] is not only the making of a complaint of neck or cervical pain, but then the commissioning of an investigatory study in response to that complaint. Clearly if one reads the Member’s decision, and in particular how he dealt with Dr Teychenné’s examinations in 2017 at length, it cannot be said that the Member was unaware of Dr Teychenné’s view of the suspected cervical cord lesion during 2017. Having said that, the Member, for the reasons which I have affirmed with respect to Ground F, did not afford much weight to Dr Teychenné’s opinion.
In any event, the appellant does not state in terms how any of the asserted errors (at [117(a)–(g)]) even if established, have affected the result.[166] The fact that the member may not have precisely referred to the medical attendances during the stated period has not been shown to have affected the result. As I have stated above, the Member does not have to refer to every piece of evidence. The Member was much concerned with the expressed basis of the various medical opinions and the results of cervical investigations.
[166] Walshe, op cit, Akora Holdings, op cit.
This ground has not been established and is as a consequence dismissed.
As to Ground L: The Member erred in finding that Dr Haddad makes no specific mention of the cervical spine in the clinical notes. This was an error of fact
The appellant asserts that the Member made a finding with respect to Dr Haddad’s clinical notes which is said to be “clearly incorrect”. Reading the appellant’s written submissions, Annexure A at [50], subparagraph [50(j)] appears to relate this appeal ground to reasons, [119]. I set out reasons, [119] below:
“As indicated, Dr Haddad appears to have taken over Mr [Mosawi’s] treatment from 13 January 2017. Dr [Haddad] made no specific mention of the cervical spine in the clinical notes of All Care MediClinic, noting that the reason for each appointment was either the lumbar spine, the thoracic spine, or both. The entry ‘Bilateral neck pain and tailbone’ of 19 January 2017 does not have any probative significance in that context. Its meaning is difficult to comprehend, but it does illustrate that Dr [Haddad] was aware of the anatomical difference between the ‘upper back’ and the ‘neck’ as, on the next line of the entry Dr [Haddad] spoke of the upper back.”
This appeal ground appears to relate to that which was argued in the appellant’s written submissions at [117(a), (b) and (c)] and I have dealt with these matters in the previous appeal ground, in particular in relation to the Member’s finding regarding the 19 January 2017 entry by Dr Haddad, this appears at reasons [119].
This particular finding about the probative value of this entry is subject to the next appeal ground, which for the reasons contained therein, I have dismissed.
The appellant has not established how it is said any error in dealing with Dr Haddad’s notes would affect the results in this case. In any event, in the earlier appeal grounds which I have identified where I have dealt with Dr Haddad’s notes, there is some question with respect to their utility in proving the matter which was in dispute, which was whether or not the appellant had suffered a cervical injury in the subject incident.
This ground has not been established and is dismissed.
As to Ground M: The Member erred in finding that the entry “bilateral neck pain” does not have any probative significance. This was an error of law
The appellant submits with respect to this ground as follows:
“In circumstances where the Appellant gave clear and unchallenged evidence that he had neck pain from the subject incident onwards, it was erroneous for the Member to determine that such an entry had no probative significance. The timeline of events and complaints to doctors of neck pain, plainly, were a central and vital issue in this case and one upon which the Member had significant reliance. The finding was an error of law.
Moreover, the Member failed to provide any reasons as to why the entry had no probative value except that its ‘meaning was difficult to comprehend’. In circumstances where the meaning was abundantly clear and required no explanation, this was an error of law.”[167]
[167] Appellant’s written submissions, Annexure A, [120]–[121].
The respondent says that the asserted error has not been established. The respondent refers to Dr Haddad’s clinical notes which commence at ARD, p 86 on 13 January 2017.
Referring to the Member’s finding that the bilateral neck pain and tailbone had no probative significance, the respondent says as follows:
“Even on the occasion that Dr Haddad referred to bilateral neck pain and tailbone on 19 January 2017 (ARD 86), the Reason for Visit is described as Lumbar back pain Thoracic back pain. The WorkCover certificate of capacity which he issued on that date is not exhibited in evidence.”[168]
[168] Respondent’s submissions, [48].
I have examined Dr Haddad’s notes of 19 January 2017. The structure of these notes appears to be as follows. Firstly, the appellant needs to update his medical certificate. Secondly, some brief descriptions of the appellant’s current pain situation are given, in this case:
“Bilateral neck pain and tail bone
Pain Still upper back
needs Medical certificate
…
feels Sick?? SE medications given Maxolon”.
The “Reason for visit” is then set out in accordance with what the respondent asserts, namely lumbar back pain and thoracic back pain. The doctor’s actions are then recorded. There was a letter written re a New South Wales WorkCover Certificate of Capacity and the appellant was given a prescription.[169]
[169] ARD, p 88.
The Member at reasons [119] was dealing specifically with this entry which in and of itself is not particularly helpful. The purpose of the visit was clearly twofold, namely to obtain an updated WorkCover Certificate and secondly to obtain a prescription in relation to the pain that the appellant was presenting with on that occasion. The purpose of these notes is clearly the ongoing management of the appellant’s medical needs.
However, whether these entries in and of themselves are probative of the issue that was in dispute in this matter is of course the key question. The Member did not consider that these notes had any probative significance. The appellant points to his “clear and unchallenged evidence that he had neck pain from the subject incident onwards,” which has been dealt with in this appeal with respect to Ground G. The appellant’s evidence does not serve to enhance the probative value of Dr Haddad’s notes of 19 January 2017 and no error in approach has been identified. I accept that the Member explained his reason for treating the notes in this way by saying:
“Dr [Haddad] made no specific mention of the cervical spine in the clinical notes of All Care MediClinic, noting that the reason for each appointment was either the lumbar spine, the thoracic spine, or both. The entry ‘Bilateral neck pain and tailbone’ of 19 January 2017 does not have any probative significance in that context.”[170] (emphasis added)
[170] Reasons, [119].
This finding was within the Member’s discretion as a decision maker to arrive at. It was the Member’s task to weigh the evidence and accord it the weight the Member considered warranted. No error has been established.
As to Ground N: The Member erred in finding that the appearance of “incomplet [sic] cord lesion” written in the GP records did not occur until 19 June 2017 and in finding that any inference to be drawn regarding the entry of “incomplet cord lesion” by the GP would be that it occurred to the lumbar spine and it was more likely that the entry was a repetition of Dr Teychenné’s diagnosis, which by then had been the subject of eight reports. This was an error of fact
The impugned finding appears to be that at reasons, [121]. In the appellant’s written submissions, Annexure A, [50], the two components of this appeal ground appear at [50(m) and (n)] which identify paragraph [121] of the Member’s reasons. I set out below the Member’s decision at reasons [121]:
“I am also unable to accept Mr Malouf’s submission that the appearance in the clinical notes of the expression ‘incomplet cord lesion’ supported the claim that Mr [Mosawi] had suffered an incomplete cord lesion to his cervical spine. That expression did not occur within the clinical notes until 19 June 2017 and 7 July 2017, as I indicated when discussing the evidence. If any inference were available to be drawn from that entry, it would be that the cord lesion occurred within the lumbar spine, as that area was nominated by Dr [Haddad] as the reason for the visit on that date. It is more likely that the entry was simply a repetition of Dr Teychenné’s diagnosis, which by then had been the subject of eight reports from Dr Teychenné.”
As is apparent, the Member does state that the incomplete cervical cord lesion diagnosis did not appear in the clinical notes until 19 June 2017. The appellant says this is incorrect by reference to the letter Dr Rassam wrote to the insurer EML on 2 December 2016.[171] This is in fact a letter from EML to Dr Rassam asking Dr Rassam to provide answers to two questions. Dr Rassam says as follows in relation to question one:
“Probable: incomplet [sic] cord lesion. He had radiological investigation, MRI.”
[171] ARD, p 170.
With respect to question two and the appellant’s ability to return to work to pre-injury duties:
“No [sic] achievable. Barriers is pain and radiculopathy.”
I would also remark that this letter from EML commences as follows:
“Aqil Naser Mosawi has recently notified us of an Upper Back Injury at work.”[172]
[172] ARD, p 170.
In this appeal ground the appellant submits that the “incomplet[e] cord lesion” could only have been referrable to the cervical cord lesion. I do not accept this submission. The letter from EML clearly is referring to an “upper back injury”, not a cervical injury, and I can only assume that Dr Rassam’s answers to the two questions are predicated upon the opening sentence to that letter. However, even if I am wrong in that construction of the letter, and Dr Rassam is referring to an incomplete cervical cord lesion, the basis or reasoning behind this opinion is nowhere made out. There is reference to an MRI, but as is I think accepted by both parties, the MRI did not reveal any objective signs of pathology, although I accept what appears at the respondent’s submissions [55] about the timing of this report and the MRI which was performed on 20 January 2017. In any event, I do not think it is necessary for me to resolve that chronological issue because the fact is the MRI investigations have not revealed evidence of an incomplete cord lesion. The basis asserted by Dr Rassam as supporting that diagnosis does not exist.
The EML form sent to Dr Rassam is not a particularly probative document. If one considers it on its face, the incomplete cord lesion diagnosis relates to an upper back injury. This is of no assistance to the appellant’s assertion. If I am wrong in that and Dr Rassam’s opinion does relate to an incomplete cervical cord lesion, the investigatory finding said to underpin that diagnosis does not exist, as the MRI did not reveal any objective signs of cervical pathology.
No error in the Member’s approach has been established, this appeal ground is dismissed.
DECISION
The appellant is granted leave to appeal against the Member’s decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
The appellant has not succeeded in establishing error on the part of the Member. The Certificate of Determination dated 14 January 2022 is confirmed.
Another matter which has been noted by the appellant in his submissions, but is not raised as an issue or ground of appeal for determination by me, is that the Member’s determination in respect of the cervical spine injury has the resultant effect of the appellant failing to exceed the 10% threshold required for an entitlement to lump sum compensation in respect of the remaining body parts.[173] Noting the outcome of this appeal, should the appellant be correct, the Member’s referral of those body parts to a Medical Assessor may best be ventilated by the parties by way of reconsideration before the Member.
[173] Appellant’s Submissions, [1(d)].
Judge Phillips
President
7 December 2022
12
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