Patrick Stevedores Holdings Pty Ltd v Viera - [2019] NSWWCCPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Patrick Stevedores Holdings Pty Ltd v Viera [2019] NSWWCCPD 12
APPELLANT:	Patrick Stevedores Holdings Pty Ltd
RESPONDENT:	Mauro Viera
INSURER:	AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-4687/18
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	30 October 2018
DATE OF APPEAL DECISION:	29 March 2019
SUBJECT MATTER OF DECISION:	Whether error in determining the need for surgery resulted from the work-related aggravation of a disease; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojilovic [2008] NSWCA 175; 72 NSWLR 728 considered and applied; s 50 of the Workers Compensation Act 1987 – sick leave – NSW Police Service v Azimi [2007] NSWWCCPD 125 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	McNally Jones Staff
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 30 October 2018 is confirmed.

INTRODUCTION

Mr Mauro Viera suffered an injury to his left foot which was deemed to have occurred on 18 July 2016, described as an aggravation of pre-existing degenerative changes.
Patrick Stevedores Holdings Pty Ltd (Patricks) denied liability for the injury and the associated treatment expenses in several notices issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Viera commenced proceedings in the Commission in respect of a claim for weekly payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 12 September 2017 to 11 February 2018. He also claimed treatment expenses pursuant to s 60 of the 1987 Act, which included the cost of surgery to his left foot performed on 12 September 2017.
The dispute proceeded to arbitration on 23 October 2018.
Patricks conceded that Mr Viera had suffered an injury and that employment was the main or substantial contributing factor to the injury. The issues requiring determination were:
(a) whether Mr Viera had recovered from his injury;
(b) the extent and quantification of Mr Viera’s entitlement to weekly compensation, and
(c) whether Patricks was liable for medical expenses pursuant to s 60 of the 1987 Act.

BACKGROUND

Mr Viera commenced employment with Patricks in October 2006 and worked in various positions. Relevantly, on about 19 June 2015, he began working as a tele-operator for some shifts per week.
Mr Viera ceased that work in about February or March 2016, but continued to work for Patrick Stevedores as a team leader and lasher.
Mr Viera had a past history of approximately 20 years of occasional left foot pain (about twice a year), for which he had not received treatment other than some anti-inflammatory medication that would relieve the symptoms within a day. Shortly after commencing the work as a tele-operator, Mr Viera began to experience pain and swelling in his left foot.
He sought medical treatment, and ultimately underwent surgery to the left foot on 12 September 2017.
The Application to Appeal Against Decision of Arbitrator nominated Patricks Stevedores Holdings Pty Ltd as the relevant workers compensation insurer. This was inconsistent with the Application to Resolve a Dispute and the Reply to Application to Resolve a Dispute which nominated Allianz Australia Workers Compensation (NSW) Limited as agent for the Workers Compensation Nominal Insurer. Patricks’ legal representative was asked to clarify the inconsistency. The Commission was advised that the management of the claim was transferred to AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer on 1 October 2018. Accordingly, the Insurer nominated in the Reply to the Application to Resolve a Dispute, in the Appeal Against Decision of Arbitrator, and in the Notice of Opposition to Appeal Against Decision of Arbitrator is amended to delete the nominated insurer and insert instead “AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties are content for appeal to be determined on the papers.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The decision is not interlocutory as it has finally determined the rights of the parties.[1]

THE EVIDENCE

[1] Licul v Corney [1976] HCA 6; 180 CLR 213; 8 ALR 437; 50 ALJR 439.

Mr Viera’s evidence

Mr Viera provided a statement dated 10 August 2017.[2]
[2] Application to Resolve a Dispute (ARD), pp 8–11.
Mr Viera stated that he had been aware for many years of an occasional ache in the middle of his left foot. He said he would take anti-inflammatories (originally his father’s Celebrex), and the pain would go away within a day. It was not a bar for him to play rugby league to the age of 25 and it did not stop him playing golf.
Mr Viera could not recall having suffered an injury to the foot, or seeking treatment from a doctor for the symptoms. He said when he commenced with Patricks, he had to pass a medical examination.
Mr Viera described his initial employment duties with Patricks as a straddle crane driver, team leader and lasher. He said there was some walking required in each position, but not very much, as he was mainly walking in one area on board a vessel and had plenty of work breaks.
In Easter 2015, the straddle cranes ceased operating and robot “Autostrads” were introduced. Mr Viera said that many of the full-time straddle drivers were made redundant, but a new position was introduced called a “tele-operator”. The tele-operator’s duties were to follow the robot around the wharves and the yard, controlling the robot with a control panel. They were required to wear heavy steel capped boots. According to Mr Viera, Patricks’ safety committee measured the distance travelled in one day to be from 8 to 15 kilometres in an eight-hour shift. Mr Viera said that within a short while, the tele-operators began to suffer significant foot injuries because of the extensive walking over hard asphalt and cement in steel capped boots.
As a result, a number of positions became available and Mr Viera commenced doing the work of a tele-operator between one to three shifts per week.
Mr Viera said that shortly after commencing those duties, he developed pain and swelling in his left foot. In about February 2016, he consulted his general practitioner, Dr Peter Nakhle, who arranged for an x-ray of the left foot. He said that on receipt of the x-ray results, Dr Nakhle wrote a medical certificate advising that Mr Viera was not fit to perform the duties of a tele-operator. Mr Viera stated that he gave the certificate to the person who handled workers compensation at Patricks, and he ceased doing that work.
Despite ceasing those duties, Mr Viera said that his foot remained sore and swollen. He was advised by the workers compensation person to obtain a WorkCover certificate of capacity. Mr Viera attended Dr Nakhle, who provided the certificate and referred Mr Viera to Dr John Negrine, foot and ankle specialist. Mr Viera first saw Dr Negrine on 9 July 2016, who arranged for him to undergo a CT scan. Dr Negrine issued a WorkCover certificate, certifying that Mr Viera could do the tele-operator duties for two hours at the beginning and end of an eight-hour shift. Nonetheless, Patricks did not require him to return to those duties.
On 12 September 2016, Mr Viera again attended Dr Negrine, who advised him that he should consider undergoing surgery in the nature of a talonavicular fusion.
Mr Viera stated that he was sent by Patricks to Professor William Cumming, orthopaedic surgeon, and on 1 February 2017 liability for his workers compensation claim was denied.
Mr Viera advised that he continued to lodge ordinary medical certificates from Dr Nakhle with Patricks, and his left foot remained swollen and painful. He continued his usual other duties until 7 August 2017.
Mr Viera said that he asked Dr Nakhle for a referral to another specialist for a second opinion about the surgery. He was referred to Dr Todd Gothelf, foot and ankle surgeon, and had an appointment to see that doctor in two weeks’ time.
Mr Viera stated that on 7 August 2017, following a meeting with Patricks’ Human Resources manager and the production manager, Patricks advised Mr Viera that he would be stood down from all duties until he was fit for normal duties.
Mr Viera said that the safety committee reported to Patricks that the steel capped boots were a significant contributing factor to the tele-operators’ foot injuries.
Mr Viera provided a further short statement dated 4 September 2018.[3]
[3] ARD, p 7.
Mr Viera advised that Dr Gothelf agreed with Dr Negrine in relation to the proposed foot surgery.
Mr Viera said that Dr Negrine performed the surgery on 12 September 2017, and that he was off work until 12 February 2018, when he returned to normal duties. As he was by then quite senior, his role involved spending more time on the ships directing operations, and he was able to cope with those duties.

The medical evidence

Two reports by Dr Negrine were in evidence.
In the first report, dated 12 September 2016[4] and directed to Dr Nakhle, Dr Negrine advised that the CT scan showed degenerative change in the foot and ankle, more advanced between the talus and the navicular, and that the appearance of the navicular was either developmental, or reflected a childhood injury.
[4] ARD, p 12.
Dr Negrine was of the view that surgery was the only treatment option, and recommended talonavicular fusion with an “off the shelf” bone graft. Dr Negrine explained that the procedure had an 85% success rate, and that following the surgery, the foot would require six weeks in plaster, non-weight bearing, and for four further weeks Mr Viera would need to use a walking boot. He said Mr Viera would be able to do a desk job, if it were available, after one month.
Dr Negrine’s second report, dated 23 September 2016, was directed to Ms Luci Martin, occupational therapist.[5] Dr Negrine advised that Mr Viera suffered from advanced arthritis in his left midfoot. He described the nature of the proposed surgery, and advised that if the surgery was successful, Mr Viera would be able to return to pre-injury duties in approximately three months, but that he could not guarantee that would be the case.
[5] ARD, p 13.
Dr David Millons, orthopaedic surgeon, was asked to examine, and provide a forensic medical report on behalf of, Mr Viera. Dr Millons reported on the examination on 2 August 2018.[6]
[6] ARD, pp 17–27.
Dr Millons took a history of Mr Viera’s social habits and employment experience prior to joining Patricks in about 2006. He recorded that while Mr Viera was performing the work of a tele-operator, he was required to walk for almost the entire shift, estimated to be approximately 15 to 16 kilometres per shift, while wearing uncomfortable steel capped boots.
Dr Millons recorded the history of Mr Viera’s former involvement playing rugby league, and that Mr Viera enjoyed playing golf, playing off a handicap of 19. He noted that Mr Viera had sustained a fracture of the right ankle and tibia which healed satisfactorily, and underwent a knee arthroscopy, following which the knee also recovered satisfactorily.
Dr Millons noted that Mr Viera had been suffering from left foot symptoms which he described as initially discomfort, that did not require medical attention and did not interfere with his ability to work, including his work with Patricks prior to 2015.
Dr Millons reported that Mr Viera’s left foot became swollen within the first shift as a tele-operator, and became increasingly symptomatic over the following 20 shifts. Mr Viera sought treatment and underwent an x-ray of the foot. He also mentioned the problems to Patricks, who stopped giving Mr Viera the tele-operator’s duties.
Dr Millons recorded that Mr Viera was referred to Dr Negrine, who arranged a CT scan, following which he advised surgery, which took place on 12 September 2017. Dr Millons noted that, prior to the surgery, Mr Viera’s foot was painful and stiff, and he had difficulty walking, but that he had a good result following the surgery.
Dr Millons further noted that Mr Viera returned to work on 10 February 2018, that he was able to wear lighter steel capped boots and because he had progressed through the ranks, Mr Viera was doing 8 hour shifts, more predominantly directing work on the ships.
On examination, Dr Millons observed that Mr Viera had a relatively normal gait, with no swelling. There were some minor restrictions, reasonable range of movement, but marked restriction of inversion and eversion to “just a few degrees.”
Dr Millons reviewed the CT scan of the left foot, and the x-rays of the left foot taken on 29 April 2017, 24 November 2017 and 19 January 2018.[7] He noted:
(a)    the CT Scan dated 9 July 2016 reported:
“degenerative changes in the subchondral sclerosis and cystic change and marginal osteophyte formation at the talonavicular and anterior subtalar joints. There are some mild degenerative changes in the rest of the subtalar joint. There are some degenerative changes also at the calcaneocuboid joint. There is some deformity of the navicular with some ossific fragments around the margin. There is some evidence of degenerative change at the tibiotalar articulation with lipping anteriorly off the distal tibia. There is a corticated fragment at the tip of the medial malleolus”
(b)    the x-ray dated 29 April 2017 recorded severe degenerative changes at the talonavicular articulation with subchondral sclerosis, cystic change and prominent osteophytes. The appearances had not significantly changed since an x-ray taken on 12 October 2015. Degenerative changes were noted in the ankle joint, the subtalar joint and the calcaneocuboid joint, and
(c)    the post-surgery x-rays confirmed the fusion was sound.
[7] Dr Millons’ report dated 2 August 2018; ARD, pp 22–23.
Dr Millons commented that Mr Viera appeared to have made no complaint in relation to left foot symptoms until he commenced the work involving a lot more walking while wearing ill-fitted steel capped boots. Mr Viera’s symptoms came on and worsened, and despite being removed from those duties, his symptoms did not settle.
Dr Millons noted that the surgery was performed so that Mr Viera could return to full duties, but that because of training and promotion, Mr Viera was able to perform work with which he could cope. Dr Millons further noted that Mr Viera had been able to return to golf, and all his duties at home.
Dr Millons considered Mr Viera’s long history of occasional aching in the foot and the presence of osteoarthritic change of the talonavicular joint. Dr Millons accepted that the underlying problem was constitutionally based, but that there was no doubt that the prolonged walking on hard surfaces while wearing ill-fitted boots had caused an aggravation of the arthritic changes, which became symptomatic during and following that work.
He was of the opinion that Mr Viera’s employment was a substantial contributing factor to the aggravation of the degenerative changes and it appeared that the duties were the main contributing factor to the aggravation, following which Mr Viera required medical treatment, including surgery.
Dr Millons confirmed that prior to the operation, Mr Viera had a painful stiff midfoot, which remained stiff, but was painless following the surgery. Dr Millons was of the opinion that, without the surgery, Mr Viera would have had increasing stiffness and pain. He observed that in the short term, the surgery appeared to be successful.
In respect of Mr Viera’s capacity for work, Dr Millons noted that from 7 August 2017, Patricks had withdrawn all duties because of Mr Viera’s ongoing problem. Dr Millons formed the view that from the date of the surgery, Mr Viera would have been quite unfit for work for three to four months. He felt that by mid-January 2018, Mr Viera would have been fit for light duties, and full duties from 12 February 2018.
Dr Millons thought the prognosis for the future was guarded.
Dr Millons provided a supplementary report dated 9 October 2018 at the request of Mr Viera’s legal representative.[8] Dr Millons clarified his opinion provided in the report dated 2 August 2018 in respect of whether the surgery was necessary because of the work caused aggravation.
[8] Application to Admit Late Documents (AALD), dated 12 October 2018, p 1.
Dr Millons reiterated his opinion that Mr Viera’s employment was the main contributing factor to the aggravation of the underlying condition, which led to the surgery. He confirmed that he considered that the surgery was necessary as a result of the work caused aggravation to Mr Viera’s underlying condition.
A WorkCover certificate of capacity, dated 4 July 2016 and completed by Dr Nakhla, was filed by Patricks in its Reply to Application to Resolve a Dispute (Reply).[9] Dr Nakhla certified that Mr Viera was fit to work 40 hours per week, but only for two hours at a time, with two hours rest between those times.
[9] Reply, pp 8–10.
Patricks qualified Professor William Cumming, orthopaedic surgeon, who examined Mr Viera and provided a report dated 6 December 2016.[10]
[10] Reply, pp 1–7.
Professor Cumming took a history of Mr Viera’s prior symptoms and the onset of more significant symptoms. The history included that Mr Viera thought that he had suffered a sprain of his foot while playing football, but could not recall an incident. Mr Viera recalled pain in his left foot and ankle while playing football, and would have had an x-ray and physiotherapy. Professor Cumming recorded that, following cessation of football at the age of 25, Mr Viera suffered stresses to his ankle a few times each year when doing activities such as going to the beach, which would last a few days. He may have consulted a doctor once or twice, with no specific treatment.
Professor Cumming noted the findings recorded in the report of the CT Scan dated 9 July 2016.
Professor Cumming concluded that Mr Viera suffered an injury to his left foot as a young footballer and had significant local post-traumatic degenerative changes. He noted that Dr Negrine proposed surgery to the foot in the nature of a fusion of the tarsal region.
Professor Cumming relied on the CT scan findings in respect of a diagnosis, that is that Mr Viera’s arthritic condition in the left foot was post-traumatic, rather than degenerative, and the condition was not work related. Professor Cumming did not accept that the condition had been aggravated, except on a temporary basis, which occurred in any event with other non-work-related activities.
Professor Cumming was of the opinion that the talonavicular fusion was appropriate treatment, but was required for treatment of the underlying condition. He was of the view that:
(a)    the surgery would have been necessary regardless of the work-related injury;
(b)    the incident at work did not “remain the main contributing factor to his current presentation”;[11]
(c)    in the light of the significant osteoarthritic changes in the ankle region, the surgery may worsen the underlying degenerative changes in the foot, so that the prognosis was guarded;
(d)    further treatment would be required in the form of medication, provision of a cast and a moon boot, and there may be the possibility of surgery to the ankle, and
(e)    he was not able to suggest alternate treatment other than appropriate footwear and medication to control the symptoms.
[11] Professor Cumming’s report; Reply, p 5.

In relation to Mr Viera’s capacity following the surgery, Professor Cumming formed the view that Mr Viera would be able to return to suitable duties on reduced hours after at least three months, then suitable duties for full pre-injury hours after a further one or two months. He opined that a trial of pre-injury duties could be undertaken after five or six months, but it was unlikely that he would be cleared to return to those duties, particularly because of his ankle joint arthritis.
Professor Cumming also provided a supplementary report dated 19 October 2018, based on the documentary information and his recollection of Mr Viera’s foot condition, which he said he remembered because it was of significant interest.[12]
[12] AALD dated 22 October 2018, pp 6–9.
Professor Cumming observed that Mr Viera’s foot condition (which was very significant) posed a difficulty with diagnosis, but that there was no doubt that is was longstanding, and likely to have been present since childhood. Professor Cumming was of the view that Mr Viera suffered from a childhood condition of Kohler’s disease of the navicular, a condition that fell within the group “juvenile osteochondritis” and was caused by temporary loss of blood supply to the bone.
Professor Cumming said that on reflection, this was the most probable cause of Mr Viera’s condition. He added that the pathology in the medial malleolus and osteoarthritic changes at the ankle joint were evidence of later specific injuries, which would naturally follow in a young person with such a foot deformity. Professor Cumming considered that Mr Viera’s significant weight gain contributed to the progression of the condition.
Professor Cumming formed the view that any activity would cause pain, but would not alter the pathology in a negative or significant manner. He repeated his concerns in relation to the effect the surgery was likely to have on the surrounding abnormalities in the foot, but conceded that the surgery was reasonably necessary and there was no alternate treatment. He further confirmed his earlier view that the surgery was required to address the underlying pathology and that Mr Viera would have come to surgery in any event.
The CT scan report dated 9 July 2016 and the x-ray report dated 29 April 2017 were in evidence.[13] The reports were consistent with the summary of those reports provided by Dr Millons. Relevantly, the CT scan report required correlation with a history of pre-disposing old trauma and the x-ray report noted that there had been no significant change since the x‑ray taken on 12 October 2015.
[13] ARD, pp 14–16.

The remaining documentary evidence

Included in the evidence was a worksite assessment report dated 26 September 2016 prepared by Ms Luci Martin, rehabilitation consultant.[14] The report was prepared on the basis of a worksite assessment on 26 August 2016 and a case conference with the nominated treating doctor, Dr Nakhle, on 12 September 2016.
[14] Reply, pp 22–27.
Ms Martin took a history of the longstanding nature of the left foot complaints, and the worsening in the course of duties as a tele-operator. That history was largely consistent with Mr Viera’s statement and the history provided to Dr Negrine and Dr Millons.
Ms Martin noted that Mr Viera was working on his usual duties, excluding the duties of a tele-operator, and was tolerating those duties, although his left foot was sore at the end of the shift. Ms Martin further noted that Mr Viera was certified fit for pre-injury hours in all duties except as a tele-operator, provided standing and walking was limited to two hours with two hours’ rest in between those hours. Ms Martin said that Dr Nakhle confirmed that Mr Viera was unable to upgrade his duties beyond that level.
Ms Martin reviewed the medical reports and opinions and the radiological investigations. She assessed Mr Viera’s functional capacity. She considered a detailed description of Mr Viera’s pre-injury duties and concluded that all duties required a combination of standing and walking in safety footwear, and that any timeframes and/or distances for standing and walking were difficult to quantify because they were dependent upon operational requirements at the time.
Ms Martin concluded that it appeared surgery was the only viable option for assisting Mr Viera to return to his full pre-injury duties.
Ms Martin’s recommendation was that Mr Viera remain on duties in line with his current restrictions until a decision was made in respect of liability for the proposed surgery.
Patricks also filed documents relating to Mr Viera’s leave records for the period from 20 July 2015 to 22 May 2016,[15] and 29 August 2017 to 4 February 2018,[16] and PAYG summary dated 30 June 2017.[17] In this appeal, it is not necessary to discuss that evidence.
[15] AALD dated 22 October 2018, pp 1–3.
[16] AALD dated 22 October 2018, pp 4–5.
[17] AALD dated 22 October 2018, p 10.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator noted that at the telephone conference held in the matter, Patricks had conceded that there was no dispute in relation to the question of injury, or that Mr Viera’s employment was the main or substantial factor to the injury. He identified the issues that remained as being:
(a)    whether Mr Viera had recovered from his injury;
(b)    the extent and quantification of Mr Viera’s entitlement to weekly compensation, and
(c)    whether Patricks was liable for the surgery performed on 12 September 2017.
The Senior Arbitrator reviewed Mr Viera’s statement evidence, and summarised the medical evidence provided by Dr Nakhle, Dr Negrine, and Dr Millons, as well as the worksite assessment report provided by Ms Martin.
The Senior Arbitrator further summarised the submissions of the parties.
The Senior Arbitrator noted that there was no dispute that Mr Viera suffered an injury (with a deemed date of 18 July 2016) in the nature of aggravation of pre-existing degenerative changes in the left foot and that employment was the main contributing factor to the “condition.” Further, he noted that there was no dispute that the proposed surgery was reasonably necessary.
The Senior Arbitrator observed that he needed to consider whether the surgery was required to address the longstanding pathology, or the aggravating effects of the accepted foot injury. He said this was a question of causation and involved a consideration of whether Mr Viera had recovered from the effects of the injury at the time the surgery was performed.
The Senior Arbitrator considered that the issue had to be determined based on the facts of the case, and cited Kooragang Cement Pty Ltd v Bates,[18] where Kirby P (as his Honour then was) stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[19]
[18] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[19] Kooragang, 463.
The Senior Arbitrator noted, however, that the High Court in Comcare v Martin[20] expressed concern in applying a common sense evaluation in the context of the Commonwealth legislation. The Senior Arbitrator quoted the following passage:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm. Nevertheless, the majority in the Full Court construed the phrase ‘as a result of’ in s 5A(1) as importing a ‘common sense’ notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.”[21]
[20] [2016] HCA 43; 258 CLR 467 (Martin).
[21] Martin, [42].
Applying those principles, the Senior Arbitrator concluded that the legislation must be interpreted by reference to the terms of the statute and its context so that it achieves its purpose. He said that s 4(b) (disease injury) and s 9A (substantial contributing factor) of the 1987 Act contain specific requirements and need to be interpreted using standard principles. He reasoned that this did not mean that a common sense approach had no place in the application of the legislation to the facts of this case.
The Senior Arbitrator considered that given there was a delay between the injury and the surgery taking place, and Patricks asserted that the natural progression of the disease would have meant there was a worsening of the condition, some analysis of the factual matrix was required.
The Senior Arbitrator recorded that Mr Viera had consulted Dr Nakhle, and was referred to Dr Negrine, who he saw on 8 July 2016. It seemed, the Senior Arbitrator said, that Mr Viera was not allowed to do the work of a tele-operator after 18 July 2016. Dr Negrine recommended surgery at the consultation on 12 September 2016. The Senior Arbitrator noted the history of occasional foot pain over many years, and that notwithstanding that occasional pain, Mr Viera had been able to perform his duties without restrictions until he commenced work as a tele-operator.
The Arbitrator noted that, although Professor Cumming had acknowledged that Mr Viera had suffered a temporary aggravation of his pre-existing condition, Patricks had denied liability. The Senior Arbitrator remarked that he did not have the benefit of any reports or relevant certificates from Dr Nakhle, or an opinion on causation from Dr Negrine.
The Senior Arbitrator referred to the consistent history taken by Dr Millons and the notation that Mr Viera’s symptoms had subsided following the surgery. The history provided to Ms Martin of longstanding problems also accorded with Mr Viera’s statement.
The Senior Arbitrator considered a submission made by Patricks that Mr Viera’s underlying condition would have worsened between the time Dr Negrine first recommended surgery and when it actually took place. The Senior Arbitrator remarked, however, that there were no significant differences between the x-rays on 12 October 2015 and those taken on 29 April 2017.
Turning to the evidence of Professor Cumming, the Senior Arbitrator said that Professor Cumming was the only doctor who was of the view that the effects of the injury in 2016 had ceased. He noted that the history recorded by Professor Cumming was that, on the background of longstanding symptoms, the left foot and ankle became painful and swollen in May 2015 and increased as Mr Viera continued to work. There was no history taken of the symptoms abating or resolving.
The Senior Arbitrator observed that Professor Cumming was not satisfied that the work performed by Mr Viera as a tele-operator altered the underlying pathology by making it more grievous or more serious, but that was a matter for consideration of the question of injury, which was not in issue.
The Senior Arbitrator considered the High Court authority of Federal Broom Co Pty Ltd v Semlitch,[22] and the principles enunciated by the NSW Court of Appeal in Austin v Director General of Education.[23] He further considered the decision of Burke CCJ in Cant v Catholic Schools Office,[24] and cited the following passage from that judgment:
“… the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is the contribution to the aggravation not to the overall disease.”[25]
[22] [1964] HCA 34; 110 CLR 626.
[23] (1994) 10 NSWCCR 373.
[24] [2000] NSWCC 37; 20 NSWCCR 88 (Cant).
[25] Cant, [23].
Applying those authorities, the Senior Arbitrator concluded that given Patricks had conceded injury by way of aggravation of a disease, there was an acceptance that the disease was more grievous or more serious in its effects on Mr Viera. Accordingly, Professor Cumming’s comments, in the Senior Arbitrator’s view, carried no weight.
The Senior Arbitrator reiterated that there was no evidence that Mr Viera’s symptoms had improved, and expressed the view that the decision to recommend surgery would not have been made lightly. Further, the surgery would not have been proposed if there had been an improvement in Mr Viera’s symptoms after 18 July 2016, and Professor Cumming did not provide an explanation for his view that the aggravation of the condition was temporary.
The Senior Arbitrator concluded that there was no evidence that Mr Viera’s symptoms had resolved or reduced, Mr Viera continued to require ongoing treatment, and the x-rays showed no change in the pathology between October 2015 and April 2017.
On that basis, the Senior Arbitrator determined that he preferred the evidence of Dr Millons, and Mr Viera’s statement evidence. He was satisfied on the balance of probabilities that Mr Viera continued to suffer from the effects of the injury to his left foot deemed to have occurred on 18 July 2016.

Whether the surgery was reasonably necessary as a result of the injury

In consideration of the question of whether the surgery was reasonably necessary as a result of the injury, the Senior Arbitrator considered the relevant authorities from both Burke CCJ of the Compensation Court of NSW (Rose v Health Commission (NSW)[26] and Bartolo v Western Sydney Area Health Service[27]) and Deputy President Roche of the Commission in Diab v NRMA Ltd[28] and Murphy v Allity Management Services Pty Ltd.[29] The Senior Arbitrator pointed out that there was no dispute that the surgery was reasonably necessary and that he had already found that the effects of the injury were continuing. He said that Patricks’ submission that Dr Millons should not be accepted because he did not explain how the aggravation occurred was irrelevant because injury was not in issue.
[26] (1986) 2 NSWCCR 32.
[27] (1997) 14 NSWCCR 233.
[28] [2014] NSWWCCPD 72.
[29] [2015] NSWWCCPD 49 (Murphy).
The Senior Arbitrator accepted that Mr Viera was required to prove that the aggravation made a material contribution to the injury, which required the application of the common sense test of causation in Kooragang.
The Senior Arbitrator observed that the only doctor to question the need for the surgery was Professor Cumming, who had accepted that the surgery was reasonably necessary and that there was no alternative treatment available. He noted that he had already rejected Professor Cumming’s view that the effect of the aggravation had ceased.
Professor Cumming’s opinion that Mr Viera would have developed the symptoms and required the surgery irrespective of the workplace injury was, in the Senior Arbitrator’s view, inconsistent with the facts. He said the facts disclosed that Mr Viera was able to work in his usual duties up until he was required to do the tele-operator’s duties. Performing those duties resulted in pain and swelling in the foot that had otherwise been relatively symptom-free. There was no suggestion that Mr Viera required the surgery before the onset of the undisputed injury, and the surgery was only contemplated after the injury, for the purpose of alleviating the pain. The Senior Arbitrator said that whether Mr Viera would have eventually come to the surgery was of no relevance to the question of whether the need for surgery was caused by the injury.
The Senior Arbitrator noted that the following the surgery, Mr Viera’s pain was reduced. Mr Viera had returned to work, albeit performing work that required less walking.
The Senior Arbitrator concluded that in his opinion, the evidence supported that the need for surgery was to address the ongoing effects of the work injury. Despite the evidence being silent as to what conservative treatment was offered and whether it had been exhausted, there was a consensus among the doctors that the surgery was necessary.
Applying the relevant factors identified in Rose and Diab, the Senior Arbitrator determined that:
(a)    he was satisfied that the surgery had the potential to alleviate the symptoms, and in fact it did;
(b)    it was an accepted form of treatment and it had been shown that it was effective;
(c)    no alternative treatment was offered, and
(d)    the cost was not unreasonable.
The Senior Arbitrator found that, on the balance of probabilities, he was satisfied that the surgery performed by Dr Negrine and the associated treatment expenses were reasonably necessary as a result of the injury.

Extent of Mr Viera’s capacity

The Senior Arbitrator acknowledged that an assessment of Mr Viera’s capacity required a consideration of whether he had no capacity or whether he had a current work capacity, in accordance with s 32A of the 1987 Act. He reproduced that section. He further acknowledged that the phrase “no current work capacity” required a consideration of the worker’s capacity to not only undertake his pre-injury employment but also suitable employment, irrespective of its availability.
The Senior Arbitrator observed that there was no medical evidence to support the notion that Mr Viera could return to his duties during the period of the claim, namely between 12 September 2017 to 11 February 2018. He said that the next question to be determined was whether Mr Viera was fit for suitable employment as defined by s 32A of the 1987 Act, which required a consideration of the nature of Mr Viera’s incapacity, the medical evidence, Mr Viera’s age, education, skills and work experience, any return to work plan and any occupational services that had been provided to him. The Senior Arbitrator acknowledged that these considerations were irrespective of whether the work was available to him or whether it was of the type that was generally available in the employment market.
The Senior Arbitrator reviewed the facts, that is, that Mr Viera was 52 years of age during the period of the claim, and the only evidence of past experience was that of a courier driver for 15 years. Mr Viera had participated in rehabilitation and undertook suitable duties until he was directed to obtain a clearance to return to full duties. That could not be achieved, the Senior Arbitrator said, until the operation was performed.
The Senior Arbitrator commented that the medical evidence was of little assistance to him in respect of Mr Viera’s capacity. There were no reports from Dr Nakhle and no post-operative reports from Dr Negrine.
The Senior Arbitrator noted that Dr Negrine indicated that Mr Viera would be able to return to pre-injury duties three months after surgery if the surgery was successful. The Senior Arbitrator further noted that, well after the period in question, Dr Millons opined that Mr Viera would have been unfit for all work for three to four months after the surgery and then fit for light work from mid-January 2018 to 12 February 2018. Professor Cumming was also of the view that Mr Viera would be fit for suitable duties after the first three months on full hours for one to two months and then full duties five to six months after the surgery.
The Senior Arbitrator determined that, doing the best he could on the available evidence, and having regard to the factors identified in s 32A of the 1987 Act, he was satisfied that:
(a)Mr Viera had no capacity for work during the first 13 weeks after the surgery, that is to mid-December 2017;
(b)thereafter, he would be fit for restricted work for full hours in a sedentary role where he could sit and stand at will, and
(c)such a position would pay $25 per hour, or $950 per week.

On the basis that the PAYG payment summary indicated Mr Viera’s income for the financial year ending 2017 was $132,192.00, Mr Viera’s weekly income exceeded the statutory maximum imposed by s 34 of the 1987 Act, and the figures to apply to the formulas in s 36(1)(a) and s 37(3)(a) of the 1987 Act were limited to $2,084.90 for the period 12 September 2017 and 30 September 2017 and thereafter $2,101.70. The Senior Arbitrator applied the relevant formulas and calculated Mr Viera’s entitlements to weekly payments accordingly.
The Certificate of Determination issued on 30 October 2018 records:
“The Commission determines:
1. The applicant sustained injury to his left foot arising out of or in the course of his employment with the respondent on 18 July 2016 (deemed).

2.     The applicant’s employment was the main contributing factor to his injury.
3.     The applicant had no current work capacity from 12 September 2017 to 11 December 2017.
4.     The applicant had the capacity to undertake some work for 38 hours per week earning $950 per week from 12 December 2017 to 11 February 2018.
5.     The applicant requires medical treatment as a consequence of his injury and the respondent is liable to pay reasonably necessary medical expenses in respect of surgery undertaken on his left foot.
6.     The left talonavicular fusion and graft, and associated expenses, was reasonably necessary treatment as a result of the injury arising out of or in the course of his employment with the respondent 18 July 2016 (deemed).
The Commission orders:
7.     The respondent to pay the applicant weekly compensation as follows:
(a)$1,980.66 per week from 12 September 2017 to 30 September 2017 pursuant to section 36(1)(a) of the Workers Compensation Act 1987;
(b)$1,996.62 per week from 1 October 2017 to 11 December 2017 pursuant to section 36(1)(a) of the Workers Compensation Act 1987, and
(c)$731.36 per week from 12 December 2017 to 11 February 2018 pursuant to section 37(3)(a) of the Workers Compensation Act 1987.

8. The respondent to pay the applicant’s reasonably necessary medical expenses with respect to the left talonavicular fusion and graft, and associated expenses, pursuant to section 60 of the Workers Compensation Act 1987.
9. No order as to costs.”

GROUNDS OF APPEAL

Patricks relies on the following grounds of appeal:
(a) Ground one: error of fact, law and discretion in determining that:
(i) the talonavicular fusion surgery was reasonably necessary as a result of the injury, and
(ii) Mr Viera required medical treatment as a consequence of the injury.
(b) Ground two (expressed in the alternative): if the Senior Arbitrator’s decision that the surgery was reasonably necessary as a result of the injury is confirmed, then the Senior Arbitrator’s orders in respect of the weekly payments is affected by error of law in that there was no order in accordance with s 50 of the 1987 Act that Patricks were to receive credit for sick leave payments made during the period.

LEGISLATION

Section 50 of the 1987 Act makes provision for payment of compensation where the worker has received sick pay during the period of a claim for weekly payments. It provides as follows:
“50    Weekly compensation and sick leave
(cf former s 7 (2C))
(1)     Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
(2)     If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:
(a)that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and
(b)the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.
(3)     If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period:
(a)the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and
(b)the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.
(4)     If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period:
(a)if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or
(b)if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).
(5)     The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity”
(6)     In this section:
compensation means weekly payments of compensation under this Division.
wages means wages, salary, allowance or other payment.”

SUBMISSIONS

Ground one: error of fact, law and discretion in determining that:

(i)the talonavicular fusion surgery was reasonably necessary as a result of the injury, and
(ii)Mr Viera required medical treatment as a consequence of the injury

Patricks submits that the Senior Arbitrator’s statement that there was no issue that employment was the “main contributing factor to the ‘condition’” (referred to at [78] above), is incorrect. Patricks concedes, however, that the totality of the Senior Arbitrator’s reasons, particularly at [48] and [56] of his reasons, shows that the Senior Arbitrator did not proceed on that basis. Patricks confirms that it accepted that Mr Viera’s employment was the main contributing factor to the aggravation of the pre-existing condition.
Patricks refers to the Senior Arbitrator’s comments in respect of the absence of evidence from Dr Nakhle and the absence of an opinion on causation with respect to the surgery from Dr Negrine. Patricks asserts that the Senior Arbitrator’s “finding” that Dr Negrine did not address the need for surgery is an error of law. Patricks submits that Dr Negrine clearly and unequivocally stated that the surgery was the only option to treat Mr Viera’s advanced degenerative changes. Patricks relies on the following extract from Dr Negrine’s report:
“The CT scan shows advanced degenerative change between the talus and the navicular and evidence of a navicular into pieces which is developmental or reflects an injury in childhood.
… The changes really are advanced and I doubt that anything short of surgery will help indeed there is no role for insoles, cortisone injections or long-term anti-inflammatory medicines.
The surgery I would recommend is a talonavicular fusion …”[30]
[30] Dr Negrine’s report dated 12 September 2016, ARD p 12.
Patricks submits that the above passage makes it abundantly clear that the purpose of the surgery was to address the long standing advanced degenerative disease condition. Patricks maintains that there is no indication in the report that the need for surgery was associated with, contributed to, brought forward, or in any sense related to Mr Viera’s employment, but the absence of that opinion cannot be taken as a failure to address the issue of causation. It was, Patricks says, clearly addressed in the passage reproduced above.
Patricks contends that the Senior Arbitrator’s failure to take into account Dr Negrine’s opinion is an error of fact, law or discretion.
Patricks refers to passages from the Senior Arbitrator’s reasons where the Senior Arbitrator stated:
(a)    Mr Viera had experienced occasional aching in his foot for many years, developed swelling and pain while doing the tele-operators duties and wearing ill-fitted boots, and the pain continued when he ceased that work;[31]
(b)    Mr Viera had long standing symptoms in his left foot and it was accepted that Mr Viera had suffered an aggravation injury on 18 July 2016,[32] and
(c)    that the decision to operate would not have been made lightly and would not have been proposed had there been an improvement in the condition after 18 July 2018.[33]
[31] Reasons, [65].
[32] Reasons, [69].
[33] Reasons, [77].
Patricks submits that “this finding” is contrary to the clear and unequivocal views expressed by Dr Negrine in his report.
Patricks reiterates that Dr Negrine recommended the surgery to treat the longstanding advanced degenerative changes. Patricks says that there was no evidence that Dr Negrine considered the aggravation injury played any role in the need for surgery, and the view expressed by him was unequivocal that the surgery was required to treat the long-standing condition.
Patricks asserts that the Senior Arbitrator’s “finding” that the surgery would not have been proposed if there had been an improvement in the condition is an error of fact.
Patricks says that this error was compounded by the Senior Arbitrator’s finding that if the injury had resolved, Mr Viera would not have required ongoing treatment, which must include the surgery. Patricks says that this statement clearly ignores Dr Negrine’s opinion and amounts to an error of discretion. There is further error in respect of this finding in that there is no evidence that Mr Viera required any treatment other than the surgery. In fact, Patricks submits, Dr Negrine said that there was no other treatment option.
In relation to the Senior Arbitrator’s comment that there was no change in the pathology on the x-ray, Patrick asserts that that statement “misses the point.” The point was, it says, that the pathology was long-standing, described by Dr Negrine as “developmental” or representative of a childhood injury.
Patricks repeats that Dr Negrine makes no suggestion that Mr Viera’s symptoms had been aggravated by work duties and that Dr Negrine makes no mention of an improvement or deterioration in Mr Viera’s condition as a result of any work-related aggravation of the condition. In respect of the Senior Arbitrator’s reasoning that he could infer that Dr Negrine considered the need for the surgery related to the work injury because Dr Negrine sought approval for the surgery from Patricks’ workers compensation insurer, Patricks submits that the inference was impermissible and unfounded, given the unequivocal opinion expressed by Dr Negrine in that report.
Patricks allege further error in respect of the Senior Arbitrator’s finding that Professor Cumming provided no explanation for his opinion that the injury was a temporary aggravation. It submits that Professor Cumming explained that the underlying condition was so severe that any activity would aggravate it.
Patricks says that the Senior Arbitrator correctly observed that Mr Viera was required to establish that the injury materially contributed to the need for surgery. Patricks asserts that the only doctor who addressed that requirement was Professor Cumming. In respect of Dr Negrine’s opinion that the surgery was to address the degenerative changes, in the absence of an express opinion to the contrary, it “necessarily follows” that Dr Negrine’s opinion did not support a finding that the work-related aggravation materially contributed to the need for surgery. Patricks concedes that Dr Negrine did not specifically address the question of any contribution to the need for surgery by the work-related aggravation.
Patricks contends that the “high point” of Mr Viera’s medical evidence was the opinion of Dr Millons. Patricks refers to extracts from Dr Millons’ reports, where the doctor opined that Mr Viera’s duties were “probably the main contributing factor to the aggravation that brought the condition to the notice of his medical practitioners,”[34] and that the surgery was “necessary as a result of the work caused aggravation to [Mr Viera’s] underlying condition.”[35] Patricks submits that the Senior Arbitrator failed to recognise that Dr Millons simply indicated that the aggravation only brought the condition to the attention of the medical practitioners, not that surgery was needed to treat the condition. Further, Dr Millons provides no explanation for his conclusion that the surgery was necessary because of the work-caused aggravation. Patricks asserts that Dr Millons provides no description as to what the work-related aggravation actually was, whether or how it affected the underlying pathology and contributed to the need for surgery. It submits that Dr Millons simply states that “[w]ithout the surgery, there would have been increasing pain and increasing stiffness.”[36] Patricks contends that Dr Millons does not say that the increasing pain and stiffness was attributable to the aggravation.
[34] Dr Millons’ report dated 2 August 2018; ARD, p 26.
[35] Dr Millons’ report dated 9 October 2018; AALD dated 12 October 2018, p 1.
[36] Dr Millons’ report dated 2 August 2018; ARD, p 26.
Patricks further submits that the Senior Arbitrator failed to:
(a) provide any reasons why Professor Cumming’s opinion that the surgery was required to address the underlying condition was incorrect, and
(b) consider Dr Negrine’s opinion that the surgery was required to treat the longstanding advanced degenerative condition.
Patricks submits that those errors were errors of fact, law or discretion.
Patricks further contends that the Senior Arbitrator erred in the exercise of his discretion in saying that there was no compelling evidence that Mr Viera required surgery prior to the work-related aggravation. The error is said to have resulted from the Senior Arbitrator failing to take into account the opinion of Dr Negrine.
Patricks asserts further error in the Senior Arbitrator’s conclusion that the surgery was required to address the ongoing effects of the work-related aggravation. It says Mr Viera was required to establish that the injury materially contributed to the need for surgery, and no such finding was made.
In conclusion, Patricks submits that material facts were overlooked and given too little weight, impermissible inferences were drawn, and the finding that the surgery was reasonably necessary as a result of the work-related aggravation was contrary to the preponderance of the medical evidence. As a result, the Senior Arbitrator’s decision was affected by errors of law, fact and discretion.
Mr Viera submits that Patricks’ submissions do not properly identify error of the kind identified in s 325(5) of the 1998 Act, and the challenge to the finding that the surgery was reasonably necessary as a result of the injury is merely an attempt to re-argue the merits of the case. Mr Viera says that the Senior Arbitrator’s reasons confirm that he considered all of the evidence and made findings that were open to him.
Mr Viera states that the Senior Arbitrator was required to determine whether the left talonavicular fusion and graft was necessary as a result of the injury. He says that Patricks’ case was that Mr Viera had recovered from the effects of the injury and the Senior Arbitrator dealt with that question in his reasons from [55]–[80], under the heading “Has the applicant recovered from the effects of his injury?”
Mr Viera quotes from the Senior Arbitrator’s reasons as follows:
“What I need to consider [is] whether the surgery was undertaken to address to the longstanding pathology or the aggravating effects of the accepted foot injury. This is a question of causation and will require a consideration of whether the applicant had recovered from the effects of his injury at the time that the surgery was performed by Dr Negrine. Whilst this was not an issue that was specifically identified by the legal representatives, it flows from the primary matter in dispute regarding causal nexus between the injury and the procedure.”[37]
[37] Reasons, [56].
Mr Viera referred to the Senior Arbitrator’s review of Professor Cumming’s evidence that the aggravation of the left foot condition would have been temporary, and the Arbitrator’s comment that Professor Cumming did not provide an explanation as to why that was the case.
Mr Viera endorses the Senior Arbitrator’s remarks that:
“If the aggravation had resolved, one would have thought that the applicant would have again become asymptomatic or at least had the reduced symptoms that he had experienced on an occasional basis in the past, and that he would not have required on-going treatment, which of course is not the case.”[38]
[38] Reasons, [79].
Mr Viera submits that it was open to the Senior Arbitrator to prefer the evidence of Mr Viera and Dr Millons, and to find that Mr Viera was still suffering from the effects of the injury. Such finding, Mr Viera submits, was consistent with the evidence, and it was open for the Senior Arbitrator to reach that conclusion.
Mr Viera contends that there can be no legitimate suggestion that the Senior Arbitrator’s evaluation of the evidence was affected by error of fact, law or discretion. He maintains that Patricks seeks to argue that the surgery was performed to treat the longstanding degenerative condition and not the work-related injury. Mr Viera submits that on a fair reading of Dr Negrine’s report, it confirms the Arbitrator’s finding on the issue of causation. Dr Negrine’s reference to advanced degenerative changes does not exclude the “fact or relevance” of the aggravation of the underlying condition, or the likelihood of any material contribution of the aggravation injury to the underlying condition, and in turn, the need for surgery. As the Senior Arbitrator observed, the doctor simply did not address the issue.
Mr Viera refers to Patricks’ argument that it is abundantly clear that Dr Negrine’s view was that the surgery was performed to treat the longstanding degenerative changes. Mr Viera says that was not Dr Negrine’s view and the submission is erroneous and a “misdirection as to the real issue.”[39] Further, the task before the Senior Arbitrator was not to determine an “‘either or’ question in respect of mutually exclusive alternatives.”[40] As the Senior Arbitrator observed, a condition can have multiple causes.
[39] Mr Viera’s submissions, [21].
[40] Mr Viera’s submissions, [21].
Mr Viera submits that the fact that the surgery is required to address the degenerative condition does not negate the relevance of the aggravation as a material factor contributing to the need for surgery. He says that the aggravation was plainly not immaterial, as it played a decisive part in the increase in Mr Viera’s symptoms, and his need for treatment.
Mr Viera further quotes from the Senior Arbitrator’s reasons, where the Senior Arbitrator observed:
“There is no convincing evidence to suggest that the applicant required surgery at any stage before his undisputed injury. He only had occasional aching. It was only after he suffered his injury that surgery was contemplated to alleviate his pain. Whether he would have eventually come to surgery is not a relevant criterion according to the authorities, but is a relevant consideration when considering the application of s 9A of the 1987 Act, which is of no relevance here. The issue is whether the need for surgery in September 2017 was caused by the work injury.”[41]
[41] Reasons, [92].

Mr Viera submits that the above extract demonstrates that the Senior Arbitrator carefully considered the evidence in relation to the underlying condition and the material contribution of the injury to the need for surgery. Any assertion that the Senior Arbitrator erred is, in Mr Viera’s view, untenable.
Mr Viera says that it should be noted that Patricks’ case is based on the opinions of Dr Negrine and Professor Cumming, where Dr Negrine does not consider or comment on the issue and Professor Cumming’s opinion was correctly rejected in relation to his opinion that the aggravation would have only been temporary.
Further, Mr Viera contends that Patricks criticises Mr Viera’s medical case on the basis that the opinion of Professor Cumming should be preferred. Mr Viera submits that this amounts to an attempt to have a re-hearing on the merits of the case, which is contrary to the scope of an appeal under s 352 of the 1998 Act.
In conclusion, Mr Viera submits that the challenge to the Senior Arbitrator’s decision does not establish error on the part of the Senior Arbitrator, as required by s 352(5) of the 1998 Act.

Ground two: The Senior Arbitrator’s orders in respect of the weekly payments were affected by error of law in that there was no order in accordance with s 50 of the 1987 Act that Patricks were to receive credit for sick leave payments made during the period

Patricks refers to Mr Viera’s statement that at the time he was stood down from duties, he had accrued leave entitlements including 200 hours of sick leave.
Patricks further refers to the AALD dated 22 October 2018, which annexed Mr Viera’s leave records and confirmed that during the period 12 September 2017 to 4 February 2018, Mr Viera accessed various forms of leave, including personal leave, leave without pay and annual leave.
Patricks submits that the Senior Arbitrator ordered the payment of weekly compensation at various rates for the period between 12 September 2017 and 11 February 2018, but there is no allowance for Patricks to receive credit for any sick leave payments paid to Mr Viera during that period.
Patricks asserts that this is an error of law, and seeks an order pursuant to s 50 of the 1987 Act that Patricks receive credit for any sick leave payments made to Mr Viera during that period.
Mr Viera’s submissions are limited to an assertion that this ground of appeal is dependent upon Patricks succeeding in respect of the first ground of appeal, and as that ground is unfounded, then it follows that the second ground falls away.

The relief sought

Patricks seeks that:
(a) the Arbitrator’s decision that the surgery was reasonably necessary as a result of the injury be revoked;
(b) the Certificate of Determination be revoked and a new Certificate of Determination be issued as follows:
(i) award in favour of Patricks with respect to Mr Viera’s claim for medical and treatment costs associated with the surgery undertaken on 12 September 2017;
(ii) award in favour of Patricks in respect of the claim for weekly payments from 12 September 2017 to 11 February 2018, and
(iii) no order as to costs.
(c) in the alternative, in the event the Arbitrator’s decision is confirmed, an order be made in accordance with s 50 of the 1987 Act that Patricks be given credit for any sick leave payments made during the period 12 September 2017 to 11 February 2018.
Mr Viera contends that the appeal is unfounded and ought to be dismissed.

DISCUSSION

Ground one: error of fact, law and discretion in determining that:

(i)the talonavicular fusion surgery was reasonably necessary as a result of the injury, and
(ii)Mr Viera required medical treatment as a consequence of the injury

Patricks maintained throughout its submissions in the arbitration and again on this appeal that it was not liable for the cost of the surgery to the left foot performed by Dr Negrine on the basis that, although the surgery was reasonably necessary, it was required to treat Mr Viera’s underlying degenerative disease condition.
Patricks asserts that this proposition is supported by the opinions of both Professor Cumming and Dr Negrine.
The alleged errors in the Senior Arbitrator’s decision are that the Senior Arbitrator made findings that:
(a)    Dr Negrine did not address the need for surgery;
(b)    the surgery would not have been proposed if there had been an improvement in Mr Viera’s condition;
(c)    if the injury had resolved, there would have been no need for ongoing treatment;
(d)    there was no evidence that Mr Viera required any treatment other than the surgery;
(e)    there was no change in the pathology between the x-rays in October 2015 and April 2017;
(f)    it could be inferred that because Dr Negrine sought funding from Patricks, the work injury was causative of the need for surgery;
(g)    Professor Cumming provided no explanation for his opinion that the effects of the injury would have been temporary;
(h)    Dr Millons provided support for the notion that the injury materially contributed to the need for surgery, and
(i)    there was no compelling evidence that the surgery was required before the work-related aggravation occurred.

Patricks identifies further alleged errors in that the Senior Arbitrator failed to find that the injury made a material contribution to the need for surgery, and that the Senior Arbitrator’s decision was against the preponderance of the evidence.
The decision the Senior Arbitrator was required to make was a decision as to causation, that is a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts.
Findings of fact will not normally be disturbed if they have rational support in the evidence.[42]
[42] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[43] have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[44] as follows:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[43] (1966) 39 ALJR 505.
[44] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
A useful overview of the principles to be applied in relation to an appeal from a primary judge’s findings of fact was contained in the judgment of Basten JA (with Allsop P agreeing) in Najdovski v Crnojilovic[45] as follows (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[46]
[45] [2008] NSWCA 175; 72 NSWLR 728 (Najdovski).
[46] Najdovski, [22].
In order for Patricks to succeed on this appeal, it must establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong.
It is necessary to examine the evidence of the facts that pertain to each of the findings in which Patricks alleges error.
Patricks maintains that the Senior Arbitrator fell into error in determining that Dr Negrine had not addressed the need for surgery. The Senior Arbitrator observed that:
“… Dr Negrine’s reports do not address the issue of causation of the need for surgery.”[47]
[47] Reasons, [66].
While Dr Negrine wrote that the surgery was recommended to treat the degenerative condition, this was in the context of that degenerative condition having become symptomatic to the degree that Mr Viera was unable to perform some of his work duties, and other activities, because of the symptoms, which Patricks conceded was a work caused aggravation. The “issue of causation” was whether the work injury made a material contribution to the need for the surgery to address the pathological condition. That was the issue which the Senior Arbitrator (rightfully) observed was not addressed by Dr Negrine.
As Mr Viera points out, the question of whether the need for surgery was materially contributed to by the injury is not an “either or” proposition. There can be multiple contributing factors. The work injury does not have to be the only or even substantial cause of the need for treatment.[48]
[48] Murphy [57].
Dr Negrine did not express the view that the surgery to address the degenerative condition was necessary solely because of the condition’s natural progression, which Patricks suggests is the conclusion that ought to be reached.
There was simply no evidence from Dr Negrine as to whether the work injury contributed to the need for the surgery, and the Senior Arbitrator was correct to come to that conclusion.
Patricks also alleges that the Senior Arbitrator fell into error in concluding that the surgery would not have been proposed if there had been an improvement in the condition. It is not clear why Patricks considers that the Senior Arbitrator erred. The submissions assert that this “finding” was contrary to the unequivocal evidence of Dr Negrine that the surgery was required to treat the underlying condition. Dr Negrine’s evidence is discussed above. It seems a matter of common sense that if Mr Viera’s symptoms had ameliorated, a treating surgeon would have been less likely to recommend surgery.
Additionally, Patricks contends that the Senior Arbitrator erred in reasoning that Mr Viera would not need treatment if the injury had resolved. The Senior Arbitrator’s reasoning process was as follows:
“If the aggravation had resolved, one would have thought that the applicant would have again become asymptomatic or at least had the reduced symptoms that he had experienced on an occasional basis in the past, and that he would not have required on-going treatment, which of course is not the case. The x-rays also showed that there had been no change in the pathology between October 2015 and April 2017. Therefore, I am of the view that the evidence of the applicant and Dr Millons should be preferred.”[49]
[49] Reasons, [79].
The Senior Arbitrator did not consider that “Mr Viera would not need treatment if the injury had resolved.” The Senior Arbitrator observed that had the aggravation (which initiated the symptoms) resolved, the symptoms would have abated or at least reduced to the pre-injury level of symptoms, which had not required treatment. Again, such an observation is a matter of common sense. The aggravation initiated the need to consult medical providers between October 2015 and September 2017 and undergo radiological investigation. This was “ongoing treatment,” distinct from the surgery, that the Senior Arbitrator was entitled to infer would not have been required had the aggravation resolved.
Patricks also contends that the Senior Arbitrator erred in observing that there was no change in the pathology between the x-rays taken in October 2015 and April 2017. Patricks says that this observation “misses the point.” The Senior Arbitrator considered the x-ray results in order to address the submission made by Patricks at the arbitration that there would have been a further deterioration in the degenerative changes between the time Dr Negrine recommended the surgery and when the surgery took place.[50] The x-rays disclosed that there was no such degeneration and the Senior Arbitrator’s consideration of that evidence was relevant and appropriate to address that submission.
[50] Reasons, [67].
Patricks asserts that the inference drawn that Dr Negrine probably considered the injury to be causative of the need for surgery because he sought funding from Patricks was an inference that was not available. Once again Patricks asserts that this is so because of Dr Negrine’s “unequivocal opinion” that the need for surgery was to address the degenerative condition. I have dealt with Dr Negrine’s opinion above. Patricks makes no compelling submission as to why that inference was not available to the Senior Arbitrator.
Patricks also takes issue with the Senior Arbitrator’s observation that Professor Cumming provided no explanation as to why the aggravation was temporary. Patricks asserts that Professor Cumming’s explanation was that aggravations would occur, as they had done in the past, with everyday activities such as going to the beach. In the absence of a history of any other post-injury aggravation, and in the context of the accepted work-related injury inducing symptoms that never abated despite Mr Viera ceasing the aggravating work activity, Professor Cumming’s reasoning fails to explain his opinion that the effects of the work-related injury would have been temporary. The Arbitrator was correct to conclude that Professor Cumming provided no explanation for his opinion.
Patricks challenges the Senior Arbitrator’s acceptance of Dr Millons’ opinion on the basis that Dr Millons did not support the notion that the injury materially contributed to the need for surgery. Patricks submits that Dr Millons fails to describe what the work injury actually was, or how or whether it affected the underlying pathology. It was not necessary for Dr Millons to provide that evidence because it was accepted that Mr Viera suffered an injury which was an aggravation of the underlying disease process. Patricks further submits that Dr Millons provided no explanation as to why the surgery was necessary because of, or contributed to by, the work caused aggravation. Reading both of Dr Millons’ reports together, his reasoning process was as follows:
(a)    Mr Viera did not appear to have complained about his foot during his working life, including at Patricks;
(b)    the position of a tele-operator required a lot more walking in ill fitted boots and within one shift his left foot became swollen and painful;
(c)    the symptoms became progressively worse doing those duties;
(d)    the symptoms did not settle when he was removed from those duties;
(e)    the pain was absent following the surgery and Mr Viera was able to return to playing golf and undertake his duties at home;
(f)    the injury aggravated the osteoarthritic changes in the talonavicular joint;
(g)    the tele-operator’s duties were the main contributing factor to the aggravation, which brought the condition to the notice of medical practitioners, Dr Negrine and the need for surgery (my emphasis),[51] and
(h)    on that basis, the surgery was necessary as a result of the work caused aggravation of the underlying condition.[52]
[51] Dr Millons’ report dated 2 August 2018; ARD pp 23–26.
[52] Dr Millons’ report dated 9 October 2018, AALD dated 12 October 2018, p 1.
It was not necessary for Dr Millons to have adopted the phrase “materially contributed to” the need for surgery when he had expressed his opinion in in the manner set out in [174(g)] above. Dr Millons’ opinion was rational and logical and was compelling evidence that provided a proper basis for the Senior Arbitrator to find in Mr Viera’s favour.
The Senior Arbitrator was correct to observe that there was no suggestion that the surgery was required until Mr Viera’s underlying condition was made symptomatic by his work duties. There is no evidentiary basis to support a contrary proposition.
Patricks’ final challenge to the Senior Arbitrator’s findings is that the Senior Arbitrator failed to find that the injury made a material contribution to the need for surgery. The Senior Arbitrator considered all of the above matters, including his observations that the symptoms arose as a result of the work-related aggravation, the surgery was required to alleviate the symptoms and as a result of the surgery the symptoms abated. On that basis, he concluded that he was satisfied that on the balance of probabilities, the surgery was reasonably necessary as a result of the injury. The “material contribution” is patently obvious.
Having considered Patricks’ submission as to why it says the Senior Arbitrator erred and the authorities referred to above, it cannot be said that the probabilities so outweigh that chosen by the Senior Arbitrator, that material facts were overlooked or given undue or too little weight, or that there was an opposing available inference that was so preponderant that the Senior Arbitrator’s decision was wrong. The Senior Arbitrator has set out a proper reasoning process based on the facts before him that led him to his conclusions.
It follows that this ground of appeal must fail.
Patricks has not challenged the Senior Arbitrator’s decision in respect of Mr Viera’s capacity for work and the calculation of his weekly entitlements, other than to seek an award in its favour in respect of those entitlements. I have assumed that Patricks seeks to have the order for payment of weekly compensation set aside on the basis that Mr Viera had either recovered from the effects of his injury or that the surgery was not reasonably necessary as a result of the injury, or both. The Senior Arbitrator determined that the effects of the aggravation had not ceased and that the surgery resulted from the injury. I have confirmed that decision on appeal. There is no basis to disturb Mr Viera’s entitlement to payment of weekly compensation.

This ground of appeal is expressed to be brought in the alternative to the first ground of appeal, and contingent upon that ground failing, with the result that the Senior Arbitrator’s decision is confirmed. I have found no error on the part of the Senior Arbitrator, so it is necessary for me to determine this ground of appeal.

Mr Viera submits that this ground of appeal is dependent upon Patricks succeeding in respect of the first ground of appeal, and as that ground is unfounded, then the second ground falls away. This is clearly a misreading of the ground. No other submissions are made by Patricks. The submission is less than helpful.
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
As an appeal from a decision of an arbitrator is limited to the identification and correction of error, it is therefore necessary for Patricks to demonstrate error in the relevant sense (that is of fact, law or discretion) before a Presidential member can intervene to disturb the Arbitrator’s decision.
A review of the transcript reveals that at the commencement of the arbitration, both parties were agitating that the Senior Arbitrator make “some notation” in the form of a re-credit to Patricks of money paid in relation to payment of wages for rostered weeks off totalling three weeks.[53]
[53] Transcript of Proceedings (T), Viera v Patrick Stevedores Holdings Pty Ltd [2018] NSWWCC 262 Senior Arbitrator Capel, 23 October 2018, T 3.16–30; T 4.18–7.5.
Neither party raised any issue or sought any order from the Senior Arbitrator in respect of the payments of sick leave. In the absence of any issue being raised before the Senior Arbitrator, he cannot have fallen into error in not dealing with it.[54]
[54] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [22] and [30].
The Senior Arbitrator made no order in respect of credit being given to Patricks for sick leave (or any other leave) taken and it would not have been appropriate for him to do so.
Section 50(3) provides that if a worker is paid sick leaveby the employer during any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, those payments are deemed to satisfy, to the extent of the payments made, the employer’s liability to pay compensation for that period.[55]
[55] Bellamy v Albury City Council (1997) 15 NSWCCR 534.
In NSW Police Service v Azimi,[56] Deputy President Roche considered an application by the employer to have credit for sick leave payments made. Deputy President Roche said the following:
“The Appellant Employer argues that under section 50 of the Workers Compensation Act 1987 (‘the 1987 Act’) Mr Azimiis not entitled to both his sick leave and weekly compensation and, ‘as such, the Respondent [employer] seeks an adjustment to the Arbitrator’s current determination such that the Respondent [employer] receive credit for the sick leave payments already made to the Applicant for the period from 8 July 2002 until 23 August 2002’.
…
The provision does not mean that the worker is not entitled to an award in respect of the period when the employer paid sick leave. Section 50(1) makes it clear that compensation is payable ‘even though the worker has received or is entitled to receive ... wages for sick leave’.
Therefore, the Appellant Employer’s point is misguided. If Mr Azimi received sick leavein the relevant period, that does not mean that his award should be altered in the manner suggested by the Appellant Employer. That part of the award affected by the sick leaveis deemed to have been satisfied and does not have to be paid again and Mr Azimi is entitled to have his sick leavere-credited. This is exactly the point made in the Respondent Worker’s submissions on appeal filed on 28 November 2006 and in its email and letter to the Appellant Employer’s solicitor dated 1 November and 14 November 2006 respectively.”[57]
[56] [2007] NSWWCCPD 125 (Azimi).
[57] Azimi, [23]–[26].
The circumstance where weekly payments of compensation were awarded during periods where sick leave was paid was also considered by Deputy President O’Grady in Milburn v Veolia Environmental Services (Australia) Pty Ltd.[58]
[58] [2012] NSWWCCPD 26.
In line with those authorities, even if the issue had been raised before the Senior Arbitrator, such an application would have been misguided, and there is no basis for raising the issue on appeal.
It follows that this ground of appeal fails.
As the grounds of appeal raised by Patricks and the submissions in support of those grounds have not established error on the part of the Senior Arbitrator, the Senior Arbitrator’s decision is confirmed.

DECISION

The Certificate of Determination dated 30 October 2018 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

29 March 2019