Perri v Adriatic Concrete Pty Ltd - [2015] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Perri v Adriatic Concrete Pty Ltd [2015] NSWWCCPD 70
APPELLANT:	Frank Perri
RESPONDENT:	Adriatic Concrete Pty Ltd
INSURER:	Cambridge Integrated Services Pty Ltd
FILE NUMBER:	A1-1279/15
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	13 August 2015
DATE OF APPEAL HEARING:	3 December 2015
DATE OF APPEAL DECISION:	15 December 2015
SUBJECT MATTER OF DECISION:	Section 66 of the Workers Compensation Act 1987; consequential condition resulting from injury; proof of causation; application of wrong test and consideration of irrelevant matter affecting Arbitrator’s decision; raising new point on appeal; need for remitter for redetermination
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr R Page, instructed by Shine Lawyers
Respondent:	Mr L Morgan, instructed by Stiles Lawyers
ORDERS MADE ON APPEAL:	1. The award found in [1] of the Certificate of Determination dated 13 August 2015 is revoked. 2. The orders made in [2] and [3] of the Certificate of Determination dated 13 August 2015 are confirmed. 3. The matter is remitted for redetermination by another Arbitrator.

BACKGROUND

Mr Frank Perri, who is 54 years of age, commenced work as a concreter at the age of 20 years. He was, at first, employed by Adriatic Concrete Pty Ltd (the respondent) for a period of 14 years following which he was self employed as a concreter for a period of 10 years. Thereafter he returned to employment with the respondent. There is no dispute that, on 18 February 2011, Mr Perri received an injury to his right ankle in the course of that employment. Compensation benefits have been paid to Mr Perri by the respondent to date.
Since the subject injury, Mr Perri has experienced disability, not only in his right ankle but has suffered, as he alleges, consequential conditions in his right knee and lumbar spine as well as post-surgical scarring to his right ankle.
In the course of treatment Mr Perri, who alleges that he gained very substantial weight following his incapacity, was advised by those treating him to undergo bariatric surgery, more particularly described as laparoscopic sleeve gastrectomy. The purpose of that bariatric surgery was to permit a decrease in Mr Perri’s body weight which, it was intended, would likely assist his orthopaedic recovery. That bariatric surgery was conducted by Dr Ken W K Loi, consultant surgeon, in March 2013.
On 13 November 2014 Mr Perri’s solicitors gave written notice to the respondent of a claim by him in respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim made was in respect of whole person impairment resulting from the ankle injury, right knee and back disability as well as alleged whole person impairment which arose following the bariatric surgery. It is relevant to note that the correspondence stated “…as a result of the injury [Mr Perri] was unable to exercise and due to weight gain and obesity he underwent laparoscopic sleeve gastrolasty [sic, gastrectomy] on 15 March 2013”. The claim made was in the sum of $100,650.00 in respect of 44 per cent whole person impairment.
A dispute arose as to Mr Perri’s entitlement to lump sum compensation. These proceedings were commenced in March 2015. The application particularised the claim, at Part 4 – Injury Details, relevantly, as “consequential condition lack of mobility and weight gain”.
The dispute came before Arbitrator Deborah Moore who ordered referral for assessment of a general medical dispute in accordance with the provisions of Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The matters referred for assessment were as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of Injury: 19 February 2011
Issues in Dispute: It is not disputed that the applicant sustained an injury to his right ankle on 19 February 2011. The applicant claims that as a result of altered gait and/or lack of mobility and weight gain, he suffered injury to his right knee, back, upper digestive tract and scarring. The applicant claims that as a result of the ankle injury he was required to undertake weight-reduction surgery.

Specific Question: Can the claims in respect to the right knee, the lumbar spine and the upper digestive tract and scarring be said to be causally related to the right ankle injury of the 19 February 2011.”

The Approved Medical Specialist, Dr Neil A Berry, issued a Medical Assessment Certificate (MAC) on 6 July 2015. Dr Berry was of the opinion that Mr Perri’s right knee and lumbar spine disabilities were causally related to the right ankle injury received in February 2011. So far as the condition of Mr Perri’s upper digestive tract was concerned, Dr Berry expressed the opinion that the “… weight-reduction surgery, although it is helpful in his overall condition, was not necessitated by his injury to the ankle. Therefore, any changes in his digestive system are not causally related to his injury”.
Dr Berry further stated that the scarring on Mr Perri’s right ankle had been “caused by his surgery and would therefore be considered to be causally related to his injury”.
In accordance with the Arbitrator’s earlier direction, the matter was relisted before her on 12 August 2015. Each party was represented by counsel. The Arbitrator was informed that the only matter remaining in dispute was the question of Mr Perri’s entitlement by reason of the alleged digestive tract whole person impairment.
Following submissions put on behalf of each party, the Arbitrator delivered her decision extempore. Findings were made, details of which are discussed below, which led to the entry by the Arbitrator of an award in favour of the respondent with respect to the claim seeking whole person impairment compensation by reason of the digestive tract condition. A Certificate of Determination was issued on 13 August 2015, which recorded the following:
“The determination of the Commission in this matter is as follows:
1.       Award for the respondent in respect of the claim for consequential injury to the upper digestive tract.
2.       The permanent impairment dispute in respect of the right lower extremity (ankle and knee) the lumbar spine and scarring is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment resulting from injury on 19 February 2011.
3.       All documents on file except for the late documents filed by the applicant (clinical notes) are to be sent to the AMS.”
Mr Perri brings this appeal against the award made by the Arbitrator in favour of the respondent as noted at [1] of the Certificate of Determination which appears immediately above.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Whilst each party consents to the appeal being heard on the papers without the need for the conduct of a conference or hearing, as is permitted by the terms of s 354(6) of the 1998 Act, I considered that there was a need to clarify those arguments raised, both before the Arbitrator and on appeal. In the circumstances the matter was listed for hearing on 3 December 2015 at which time both parties were represented by counsel.

ISSUES IN DISPUTE

Mr Perri relies upon ten grounds of appeal found in a document headed “Amended Grounds of Appeal” filed on 30 September 2015. Both factual error and error of law are suggested. The matters challenged in these grounds, with the exception of ground one, each concern the Arbitrator’s reasoning and conclusions as to Mr Perri’s increase in body weight and the question of causation of that increase. Ground one suggests error in concluding there was no causal nexus between “the injury [sic] to the digestive tract” and “the injury to the ankle”.
The errors of law alleged include suggested failure to address the correct question concerning causation; making findings which were not supported by expert evidence, or any evidence, and as to erroneously determining the need for corroboration.
The grounds and argument in support are addressed below. At the hearing the parties were invited to address the question as to what constitutes a consequential condition resulting from relevant injury, and to put argument concerning the Arbitrator’s approach to the question of causation of the condition of the upper digestive tract. These matters are addressed more fully below.

THE ARBITRAL PROCEEDINGS

The evidence before the Arbitrator

Mr Perri relied upon his written statement made on 27 February 2015. Following a description of his employment background and the circumstances of his injury, Mr Perri stated that he ceased work and sought medical treatment following the injury. He at first wore a half cast plaster and was subsequently referred to Dr Peter Lam, orthopaedic surgeon. Surgery was conducted by Dr Lam in August 2011. Further surgery was conducted by Dr Lam in February 2012. In September of 2013 the hardware earlier inserted was surgically removed by Dr Lam.
Mr Perri described his experience of pain in his leg and his back and described difficulty in walking and standing. By reason of inactivity he had begun to put on a significant amount of body weight. That increase of body weight continued and in March 2012 Mr Perri was referred to Dr Ken Loi, consultant surgeon, who advised him to undergo “stomach surgery to reduce [Mr Perri’s] weight so as to take pressure off [his] ankle”. The bariatric surgery advised by Dr Loi was conducted on 5 March 2013. Thereafter, Mr Perri reduced his body weight. Mr Perri remains unfit for work by reason of pain and disability.
The medical evidence relied upon by Mr Perri included x-ray reports which demonstrated an avulsion fracture of the tip of the right lateral malleolus. That study was dated 6 April 2011 and the report noted that there was non-union of the fracture. The evidence of Dr Peter Lam, who was first consulted by Mr Perri in May 2011, suggests that Mr Perri appeared to have a lateral ligament injury with varus malalignment since the injury in February 2011.
A subsequent report by Dr Lam, dated 10 June 2011, makes reference to a fracture of the anterior process of calcaneus which had “healed”. Dr Lam confirmed his view that Mr Perri had suffered lateral ligament injury which had led to some deformity which required correction. Surgery was conducted on 18 August 2011, which involved osteotomy at right first metatarsal, calcaneal osteotomy, fibular osteotomy and lateral ligament reconstruction.
By reason of ongoing disability, Dr Lam, in his correspondence to Mr Perri’s general practitioner Dr Med Melek, dated 25 November 2011, outlined detail of the surgery which he recommended. That surgery was carried out on 10 February 2012 and involved revision of left calcaneal osteotomy and removal of two screws from the calcaneus.
A report of Dr Lam dated 23 March 2012 records that Mr Perri had informed that practitioner that he “has put on about 28 kilos since his injury”. Dr Lam expressed the view that “this excess weight will significantly slow down his recovery as it will place an added load on his right foot”.
Dr Lam, in correspondence addressed to Dr Melek dated 15 June 2012, stated that it was very important that Mr Perri tries to lose some weight and advised that consideration be given to “the role of bariatric surgery to facilitate [weight loss]”. It was Dr Lam’s view that excessive weight “is going to significantly slow down his recovery and lead to ongoing symptoms especially with his right ankle pain and the left ankle”. I note that Dr Lam had earlier in that correspondence noted Mr Perri’s complaint of left ankle pain “over the past six weeks”.
A copy of a report dated 7 September 2012 sent by Dr Lam to Dr Melek, noted that Dr Lam had advised Mr Perri “that it is important that he is able to lose at least 40 kg in order to reduce the load on the ankle”. Dr Lam expressed the view that such weight loss could be achieved with bariatric surgery. Dr Lam advised that steps be taken to obtain approval from the workers compensation insurer to undergo that surgery.
The evidence of Dr Loi is found in a number of reports tendered on behalf of Mr Perri. Dr Loi recorded that Mr Perri had “gained a substantial amount of weight” since his injury and that different methods of weight loss had been attempted without any success. Dr Loi noted that Mr Perri had started to develop medical related co-morbidities including sleep apnoea, insulin resistance which, as stated by Dr Loi, was “affecting his self-confidence and is most likely jeopardising Mr Perri’s recovery from the foot surgery”. That history was taken at a first consultation which occurred in March 2012. Dr Loi advised bariatric surgery and requested approval of such procedure of the workers compensation insurer. In a report dated 2 April 2012, Dr Loi recorded the following:
“I think it is reasonable to suggest that since before his weight gain he was a fit, healthy person fluctuating between 95-100 kgs of weight and he has gained about 30 kgs over the last year or two after his traumatic experience and inability to exercise after his foot surgery etc. I will do a more detailed letter to the insurance company later on and hopefully will be able to get him through the line for workers’ compensation support for his bariatric surgery”.
Dr Loi addressed a further letter to the insurer dated 10 April 2012 in which it was stated that Dr Loi believed “that the current metabolic issue of his obesity has been significantly contributed to by his initial foot injury and hence I support his claim for the obesity surgery to be under the umbrella of his current workers’ compensation claim”.
The insurer put a question to Dr Loi as to whether “in [Dr Loi’s] opinion are there any non-work related factors affecting this claim?” to which Dr Loi replied:
“At this stage I believe that his injury has substantially contributed to his weight gain that has been shown during the previous past year since his injury. However we are aware that obesity related problems are partly genetic plus also environmental as well but these contributions can not be accurately quantified at this stage. From the history I obtained I could not find any other factors that have substantially contributed to his obesity besides possibly depression. Depression could also be related to this especially with his loss of work and also the traumatic injury that was sustained during his work as well. Either way all of these conditions have been linked and related to his initial foot injury.”
In evidence there was an operation report provided by Dr Loi dated 8 March 2013, which recorded the conduct of a laparoscopic sleeve gastrectomy carried out on 5 March 2013.
Mr Perri relied upon the opinion of Dr Anthony Greenberg, general and gastro-intestinal surgeon, who provided a report dated 10 April 2014, which had been requested by Mr Perri’s solicitors for the purposes of this claim. Dr Greenberg recorded that Mr Perri, before his foot injury, was a very active person who exercised regularly and ate a normal diet and did not have a problem with being overweight. After the injury Mr Perri reported that his lifestyle became “very sedentary”. Mr Perri also reported feeling depressed, anti-social and withdrawn. Dr Greenberg also recorded that, when in his twenties, Mr Perri was 80–85 kg. Before the accident Mr Perri was 95–100 kg and following the accident his weight increased to 130 kg. His height was stated to be 170 cm. Dr Greenberg expressed the opinion that Mr Perri’s right foot injury was a contributing factor to his excessive weight gain. Whole person impairment relating to the bariatric surgery was assessed by Dr Greenberg at 26 per cent.
The balance of the medical evidence relied upon by Mr Perri related to his orthopaedic injuries. It is not proposed to summarise those matters which are no longer disputed. However, I note in passing that Dr Medhat Guirgis, orthopaedic surgeon, who was qualified to provide an opinion for the purposes of this litigation assessed that the orthopaedic disabilities had resulted in 24 per cent whole person impairment.
There was, in evidence before the Arbitrator, an enormous volume of documents which had been produced to the Commission by various medical practitioners. Among those documents is a copy of correspondence sent by Associate Professor Terry Diamond to Dr Phillip Taplin. It is there recorded that Mr Perri attended for consultation on 12 January 2012. Professor Diamond noted that Mr Perri “has a genetic pre-disposition to obesity with his mother being overweight and having diabetes”. It is further noted in that correspondence that Mr Perri had gained “22 kg over the past 12 months following a right ankle injury requiring ORIF. [Mr Perri] has no clinical signs to suggest an underlying cause for obesity.” Professor Diamond recorded Mr Perri’s weight at that time as being 123 kg. It was also recorded that Mr Perri had been referred to Dr Loi to discuss “the benefits of laparoscopic gastric sleeve surgery”.
The respondent relied upon the evidence of Dr Phil Truskett, surgeon, who had been qualified to provide an opinion for the purposes of this litigation. Dr Truskett’s report dated 23 April 2012 related to an examination which took place on that date. Dr Truskett recorded Mr Perri’s history of injury and subsequent treatment. He stated at page 3 of that report that he had been “asked… to focus on Mr Perri’s weight gain”. Mr Perri reported to that practitioner that he had put on approximately 30 kg in weight and that prior to his accident he had weighed 95–100 kg. Dr Truskett records that Mr Perri, on the date of examination, weighs 125 kg. Mr Perri stated to Dr Truskett that the weight gain was “due to a lack of activity”. Mr Perri denied increased food intake. The advice concerning bariatric surgery was noted in that report.
Dr Truskett recorded the following matters concerning Mr Perri’s weight gain:
“Due to his relative inactivity he believes that his foot injury has been the cause of him gaining weight.
I note that prior to his accident Mr Perri weighed 100 kgs. This placed him in the obesity class II with a BMI of 35.4kg/m². He was therefore morbidly obese prior to his accident.
It is therefore likely that his obesity is constitutional and unrelated necessarily to inactivity. It is more likely that his food intake, although he describes it as being normal, is contributing significantly to his weight gain. It is often stated that weight gain relates to 70% caloric intake and 30% lack of exercise. It is therefore my opinion that his weight gain is not substantially contributed to by his work injury and is therefore not considered compensable.”
Dr Truskett, in response to a question put by the insurer seeking advice as to “whether [Mr Perri] has suffered an aggravation or acceleration of the injury/condition?” replied:
“Mr Perri’s obesity is pre-existing. It is progressive. The work injury may have limited his activity but is not the substantial contributing cause of his weight gain.”
Later in that report Dr Truskett stated that Mr Perri’s “progressive weight gain is constitutional and not work related.”
The respondent tendered in evidence a copy of correspondence dated 8 January 2015 forwarded by the insurer to Mr Perri. That correspondence enclosed a notice declining liability with respect to Mr Perri’s “claim for obesity” which was issued pursuant to s 74 of the 1998 Act. The covering letter stated as follows:
“After careful consideration, we write to advise you that liability of [sic] obesity has been declined. Please be advised that obesity allegedly related to your right ankle injury has been declined under Section 4 of the Workers Compensation Act 1987.”

The medical assessment made by Dr Berry in his MAC issued on 6 July 2015 was treated as being in evidence before the Arbitrator. Reliance was placed upon that material by the respondent. I note that Dr Berry’s assessment has been noted above (at [6]–[8]).

Submissions before the Arbitrator

Before the commencement of submissions put by counsel appearing on behalf of Mr Perri, Mr Page, the Arbitrator stated that the issue for determination before her was: “whether the claim for lump sum compensation in respect of the upper digestive tract is causally related to the injury to the ankle.” That statement by the Arbitrator was accepted by counsel for Mr Perri as being correct. Counsel then summarised the evidence relating to the injury and its consequences so far as physical activity was concerned. Counsel placed particular emphasis upon the views expressed by Dr Lam which are noted at [23] above.
In the course of argument at this point, the Arbitrator suggested to counsel that the question was “whether the weight gain is said to be causally related to the ankle…” (at T8). The Arbitrator observed that “the initial thing I have to determine is whether that, if [weight gain] occurred, is [sic, it is] a consequence of the ankle injury, never mind the request for surgery.”
Counsel’s response to these observations was as follows (at T8–9):
“There are two aspects to that. The first aspect is, if he puts on the weight, as I’ve suggested, and needs the bariatric surgery to cure that, that’s one aspect, and that’s caused by the inactivity. The other point – and it is live from the medical evidence – is that, as a treatment regime for the surgery on the ankle, he needs to lose weight and, therefore, the bariatric surgery is the most appropriate mechanism for the loss of weight. So there are the two prongs; it is the two‑pronged approach.”
Counsel proceeded to argue that the evidence established that, following the bariatric surgery in March 2013, Mr Perri had lost 30 kg in body weight by July of that year. It was argued that as “a direct consequence of the gastric surgery”, Mr Perri had lost that weight.
It was further argued that the evidence of Dr Loi supports the proposition that the weight gain occurred following the work injury by reason of inability to exercise and that Mr Perri’s obesity had been significantly contributed to by his initial foot injury.
Counsel proceeded to address the views expressed by Dr Berry in his MAC. It was argued that, given the deficiencies suggested by counsel concerning history as recorded, little weight would be given to the views expressed by that practitioner concerning the bariatric surgery. Notwithstanding the criticism of Dr Berry’s opinion, counsel suggested that there was some support for the proposition that “weight reduction will assist [Mr Perri] because of his injury”. The general thrust of counsel’s argument is to be found at T27 where it was put:
“… had it not been for the injury necessitating the inactivity caused by the surgery, this man would have been at work and would have maintained his weight at the 95 to 100 kilograms, which he’d been doing for years before.”
Counsel concluded by submitting that it was more probable than not that the weight gain was a consequence of the injury and not the consequence of “some other lifestyle choice that seems to have permeated this case unnecessarily.”
Counsel appearing on behalf of the respondent, Mr Morgan, stated that to succeed in the claim brought by Mr Perri, he would need to establish that “there was a substantial increase in weight and that substantial increase in weight was occasioned by the physical injury”. Reliance was placed upon the evidence of Dr Truskett and Dr Berry. It was argued that Mr Perri had failed to discharge the onus of “satisfying [the Commission] of the relevant causal connection between the bariatric surgery that is performed, the increase in weight, and the work accident”.
It was suggested that the evidence presented by Mr Perri was deficient given that there was nothing tendered in evidence from a general practitioner which establishes the pre-injury weight. It was emphasised by counsel that there was no material found in the voluminous records which had been tendered in evidence that addressed the question of Mr Perri’s pre-accident body weight. The state of the evidence was also criticised on the basis that there had been no “statements from any family members with respect of levels of activity and the like pre- and post-injury…”. There were no photographs of Mr Perri which demonstrated his pre-injury state. Counsel argued that even upon an acceptance of Mr Perri’s evidence as to his pre- injury weight, the evidence of both Dr Truskett and Dr Berry establish that Mr Perri was morbidly obese as at the date of the accident. It was suggested by counsel that, upon acceptance of Dr Truskett’s and Dr Berry’s view, the relevant surgery was required by Mr Perri before the subject injury. It was further argued that the evidence was not sufficient to establish the “inactivity” which was said to cause the increase in weight. It seemed to be argued by counsel that the Arbitrator would not be satisfied that there was “relevant causal nexus between the surgery that was performed and the need for that surgery, in particular, and this injury, which is accepted, to [Mr Perri’s] right ankle.”
In reply, Mr Page argued that Mr Perri’s evidence has been consistent “the whole time” and that there was no need for corroborative evidence. The Arbitrator responded by suggesting that the respondent’s argument related to the question of the onus of proof but there had been no suggestion that there was “any problem with [Mr Perri’s] statements.”

THE ARBITRATOR’S DECISION

At the commencement of the Arbitrator’s Statement of Reasons, the following is recorded (at T41):
“…the only issue is whether [Mr Perri’s] claim for a consequential injury [sic] resulting from the undisputed injury to his right ankle on 19 February 2011 – whether the consequential injury [sic] claimed as upper digestive system can be said to be causally related to that injury.”
The Arbitrator accepted the evidence of Dr Lam concerning Mr Perri’s report that he had put on about 28 kg since the subject injury and Dr Lam’s view that this excess weight will “significantly slow down his recovery as it will place a load on his right foot”. The Arbitrator proceeded to summarise the evidence of Dr Loi and that of Mr Perri as found in his statement dated 27 February 2015. The evidence of Dr Greenberg, Dr Truskett and Dr Berry was also summarised by the Arbitrator.
When addressing the question of pre and post injury body weight, the Arbitrator (at T49) stated that she accepted that Mr Perri’s immobility on crutches and then whilst wearing an ankle boot for some time would “lead to some inactivity”. The observation was then made by the Arbitrator there was “absolutely no evidence from [Mr Perri] that he attempted any other form of exercise that was non-weight bearing such as swimming or exercise in a gymnasium that did not involve weight bearing to address his weight problem”.
The Arbitrator stated: “I also accept on his own evidence that [Mr Perri] was significantly overweight prior to his injury”. Reference was made by the Arbitrator to the evidence of Dr Berry concerning Mr Perri’s wife and brother-in-law who had each had weight reduction surgery. Dr Berry, it was observed by the Arbitrator, considered that there was an indication of a “lifestyle problem in the family”. In assessing the evidence of Dr Berry, Dr Truskett and Dr Greenberg, the Arbitrator observed that those practitioners did not appear to be “cognisant of the report of Dr Diamond who had made reference to the genetic predisposition to obesity, noting [Mr Perri’s] mother was also overweight and had diabetes”.
The Arbitrator accepted the arguments advanced by Mr Page on behalf of Mr Perri that the test as to causation required the adoption of a “common sense approach”. The Arbitrator then observed that:
“It would be, however, somewhat simplistic to say, in terms of the causation argument, that injury, inability to move or exercise, weight gain, gastric surgery are all connected.”
It appears to have been accepted by the Arbitrator that the gastric surgery had probably assisted Mr Perri in a general sense in controlling his weight. It also seems to have been accepted that Mr Perri was significantly overweight before the injury.
The Arbitrator found (at T51) that:
“The amount of weight that [Mr Perri] gained it would seem to me could not be solely attributed to a lack of activity. More significantly, as I have said, however, is that there is an absolute lack of evidence as to what steps, perhaps if [Mr Perri] took steps, to lose weight by some other means and was unsuccessful, no evidence from his family, no photographic evidence, nothing of this nature that would assist me”.
The Arbitrator further accepted that Mr Perri’s ankle injury and the period of inactivity would lead “most individuals to put on some weight but, to put on the amount that he did, I do not believe that [Mr Perri ] has established was solely due to the ankle injury” (at T51).
The Arbitrator proceeded to state her conclusion having regard to the evidence summarised by her as follows:
“The weight of medical evidence though from both Dr Truskett and Dr Berry is that this weight was a combination of either lifestyle, genetic, other factors than the lack of exercise consequent upon an ankle injury. In those circumstances I find that the applicant has failed to persuade me on the balance of probabilities that the injury [sic] to his upper digestive tract is as a consequence of his ankle injury.”

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Whilst Mr Perri relies upon 10 grounds challenging the Arbitrator’s decision, it was made clear at the hearing of the appeal that his fundamental complaint was, as stated in ground one, that:
“The arbitraor [sic] erred in fact in finding that the injury [sic] to the appellant’s upper digestive tract was not causally related to the injury to the ankle.”
The relevant finding made by the Arbitrator is noted at [55] above.
There is to be found in the Arbitrator’s reasoning an emphasis upon the question of causation of Mr Perri’s alleged post-injury increase in body weight. That question, whilst very relevant, is one that is distinct from the question in dispute, being whether the injury received in February 2011 resulted in the digestive tract whole person impairment.
That emphasis by the Arbitrator is not surprising having regard to the manner in which the relevant whole person impairment claim was made on behalf of Mr Perri (noted at [4] above), the manner in which the claim was particularised in the Application to Resolve a Dispute (noted at [5] above), and the general tenor of submissions put on his behalf before the Arbitrator.
At the commencement of the hearing of the appeal, discussion took place concerning the arguments advanced before the Arbitrator and particular attention was given to the “two pronged approach” which was put on behalf of Mr Perri (noted at [39] above). As may be discerned from the content of the transcript of proceedings before the Arbitrator, and as confirmed by Mr Page at the hearing of the appeal, the argument that “… as a treatment regime for the surgery for the ankle, he needs to lose weight and, therefore, the bariatric surgery is the most appropriate mechanism for the loss of weight” was not developed in argument before her.
As stated by Mr Page before the Arbitrator, there was evidence which supported the proposition noted immediately above. It is my view that, had evidence in support of that proposition been accepted, it would have been arguable that any whole person impairment suffered following conduct of the bariatric procedure was, in terms of s 66 of the 1987 Act, compensable.
Counsel for the respondent, Mr Morgan, fairly and properly acknowledged that the argument had been raised before the Arbitrator, albeit it had not been amplified by reference to the evidence.
Mr Page sought to supplement the written submissions provided in support of the appeal with argument in support of the proposition noted at [61] above founded upon evidence, not expressly referred to before the Arbitrator, in support, it seems, of the first ground of appeal (noted at [71] below).
No objection to those matters being articulated by Mr Page was taken by Mr Morgan, however it was made clear that the respondent reserved the right to argue that such submissions should not be taken into account on the appeal. In the circumstances, Mr Page was permitted to advance argument to which Mr Morgan replied. That course was adopted before argument was heard as to the cause of any weight gain and its relevance to causation of whole person impairment.
It was argued on behalf of Mr Perri that the expert medical evidence supported the proposition that, regardless of the cause of Mr Perri’s excessive weight, his recovery from the injury to his ankle would be advanced by loss of weight, which would follow the bariatric surgery advised by Dr Loi. Attention was drawn to statements made in the reports of Dr Lam and Dr Loi which, it was argued, demonstrated that it was desirable, to assist treatment and recovery, that Mr Perri reduced his weight. It follows, it was put, as a matter of common sense, that there was a causal nexus between the ankle injury and the whole person impairment which followed the bariatric surgery. The detail of such evidence said to be relevant is recorded in the transcript of the appeal hearing and need not, by reason of my conclusion concerning this particular question, be summarised.
In response, Mr Morgan asserted that, should Mr Perri be permitted to rely upon those arguments advanced for the first time on appeal, it would have the consequence that the respondent was denied natural justice. It was put that, although the primary submission had been made before the Arbitrator, there had been no reference to the evidence before the Arbitrator and, further, that the nature of the argument was at odds with the manner in which the claim had originally been made in correspondence, particularised in the Application to Resolve a Dispute, and with the manner in which Mr Perri’s case had been presented before the Arbitrator.
Counsel also put that to permit the additional argument, which seemed to be characterised by Mr Morgan as an attempt to raise a new point on appeal, the respondent would be prejudiced. Such prejudice was demonstrated, it was argued, by the fact that the respondent had prepared its defence without notice of the new allegation and had not had an opportunity to seek expert medical opinion on the subject.

Whether new argument should be taken into account on appeal

Notwithstanding the statement made by counsel before the Arbitrator concerning the alternative, or second “prong” argument, I am of the view that to allow the developed argument on appeal would, in effect, permit Mr Perri to raise a new matter on appeal. It is well settled that a party is bound by the conduct of his or her case; as was stated by McColl JA in Mamo v Surace [2014] NSWCA 58 (at [75]):
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (at 7–8) per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598.”
No argument was advanced by Mr Perri that exceptional circumstances existed which would permit the new arguments to be advanced on appeal. I am of the opinion that significant prejudice to the respondent would arise should such argument be permitted. In the circumstances, I conclude that the interests of justice dictate that Mr Perri not be permitted to raise these new arguments on appeal.

The grounds of appeal

The grounds relied upon are as follows:
“1.     The arbitraor [sic] erred in fact in finding that the injury to the appellant’s upper digestive tract was not causally related to the injury to the ankle.
2.      That the arbitrator erred in fact in finding that the appellant’s weight gain related to his lifestyle.
3.      That the arbitrator erred in fact in not finding that the appellant’s weight gain related to his lack of mobility following the ankle injury.
4.      That the arbitrator erred in finding that it would be simplistic in terms of causation that injury, inability to move or exercise, weight gain, gastric surgery are all connected (50.20).
5.      That the arbitrator erred in finding her decision could have been different as to causation in terms of inactivity had the applicant been a person with a pre-injury normal weight (50.30).
6.      That the arbitrator erred in suggesting that the applicant needs evidence other than his own statement as to his pre-injury weight (51.04).
7.      That the arbitrator erred in finding that there is no evidence of the applicant’s lifestyle, eating or factors such as this prior to the accident (51.05).
8.      That the arbitrator erred in stating that there was a need for evidence as to what steps the applicant took to loose [sic] weight and that such evidence would be of assistance (51.15 & 52.10).
9.      That the arbitrator erred in finding that the applicant had to establish that his weight gain was solely due to the ankle injury (51.26).
10.    That it was not open to the arbitrator to conclude that although inactivity could lead to a person putting on weight that it was not possible to put on as much weight as the applicant did because of inactivity (51.25).”
It may be seen that Mr Perri makes reference to “injury to [his] upper digestive tract”. I have earlier (at [55]) set out the Arbitrator’s conclusion which also makes reference to “injury to [Mr Perri’s] upper digestive tract”. It must be understood that Mr Perri’s claim is in respect of whole person impairment arising from the bariatric surgery. Any such whole person impairment, if proven, is not an injury in terms of s 4 of the 1998 Act, but rather is a “consequential condition” being a result of the injury in 2011 (see discussion by Roche DP in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and at [61]).
The question before the Arbitrator was one of fact concerning causation of the consequential condition, that is, did the whole person impairment result from the 2011 injury. Her finding noted at [55] above that the weight gain was caused by “a combination of either lifestyle genetic, other factors [rather] than the lack of exercise consequent upon an ankle injury” is challenged by Mr Perri.
To establish such error, those matters as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506) (Whitely Muir) must be made out, that is:
“… 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 trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”

Grounds one, two and three

Grounds one, two and three are addressed jointly in written submissions provided on behalf of Mr Perri (between [1] and [11] of submissions). These submissions include a summary of the evidence concerning the significant weight gain which occurred in a relatively short period after the subject accident. It is put (at [6] of submissions) that: “… the question is what is the most likely cause of that increase in such a short space of time?”
As argument is developed concerning these three grounds, it is apparent, as was argued on behalf of the respondent, that submissions put before the Arbitrator are being restated and that no error other than that suggested concerning the correctness of the finding is identified. The argument (at [11] of written submissions) that “[a]s a matter of common sense, which is the touchstone of causation, it is obvious that the reduction in mobility is a cause of the very significant weight gain” demonstrates this failure to identify relevant error. It is not suggested that error as stated by the Chief Justice in Whitely Muir was committed by the Arbitrator. The submissions merely seek to cavil with the Arbitrator’s factual conclusion. In my view those arguments do not make out grounds one, two or three.

Ground four

Ground four concerns the Arbitrator’s statement noted at [51] above. It is suggested that, in concluding it would be “simplistic”, in terms of causation, “that injury, inability to move or exercise, weight gain and gastric surgery are all connected”, the Arbitrator has erred.
I accept Mr Perri’s argument that the Arbitrator may not “disregard an issue of causation because they [sic] may appear to be simplistic” (at [12] of written submissions). However, I am not satisfied that the Arbitrator has impermissibly disregarded a relevant matter as suggested in this ground. The Arbitrator stated that she accepted Mr Perri’s submission “about taking a common sense approach to the issue of causation” (at T50.19). It was in that context that reference was made to the “simplistic” analysis of the question. I accept the respondent’s argument that such observation by the Arbitrator “did not deviate from the ‘common sense’ approach but simply suggested that it was not a straight forward question or step by step process and indicated the need for evidence to establish the causal link” (at [12] of respondent’s written submissions). No relevant error is made out. Ground four fails.

Ground five

Submissions in support of ground five make complaint that the Arbitrator has, in the absence of expert evidence, expressed a view that her decision as to causation may have been different if Mr Perri had been of normal weight pre-injury. The relevant passage from the Arbitrator’s reasons appears at T50.25–34 as follows:
“There is no doubt the gastric surgery has probably assisted Mr Perri in a general sense in controlling his weight, but he has to persuade me that it is causally related to the ankle injury. It seems to me that, as I said, I could accept certainly a degree of inactivity and, in a person with a pre-injury normal weight, the situation might be different, but it is clear, on his own evidence, that he was significantly overweight beforehand.”
It seems reasonably clear that the Arbitrator in the first sentence, where it is stated “…it is causally related”, was referring to the post-injury weight gain. Upon that assumption, the second sentence, which as transcribed is difficult to comprehend, appears to be an observation by the Arbitrator that, accepting that injury had resulted in “a degree of inactivity”, had Mr Perri been of normal weight pre-injury, “the situation might be different”. Those last mentioned words do not constitute a meaningful conclusion. I am not persuaded that any conclusion was reached that required the support of expert medical evidence. I note that it was not argued that the Arbitrator’s reasons were inadequate. Ground five fails.

Ground six

Ground six suggests error on the Arbitrator’s part in determining that Mr Perri was required to present evidence corroborating his evidence as to his pre-injury weight. The relevant statement in the Arbitrator’s reasoning is as follows (at T51.2):
“…there is also no evidence from the applicant as to his pre‑injury state in terms of his weight, other than his own statement”.
The difficulty with this complaint is that it seems that there was no dispute as to Mr Perri’s pre-injury weight. As noted at [50] above the Arbitrator accepted Mr Perri’s “own evidence” that he was “significantly overweight prior to his injury”. What was meant by the Arbitrator in the passage of her reasons quoted immediately above is unclear. However that statement cannot, in my view, be construed in the context of her reasons as a whole as being a statement that corroboration was required. Ground six is not made out.

Ground seven

The submission put in support of ground seven seeks to support the suggestion of error on the part of the Arbitrator in finding “there [was] no evidence of [Mr Perri’s] lifestyle, eating or factors such as this prior to the accident”. It is correctly noted in that submission that Dr Greenberg’s history did, in fact, include such detail of Mr Perri’s “lifestyle” pre-injury.
The difficulty with this ground is that no argument has been advanced as to the relevance of the Arbitrator’s suggested omission to take into account Dr Greenberg’s history, that is, there is no suggestion that any such error has affected the Arbitrator’s decision (I note that, as appears at T44, the Arbitrator had recorded the relevant part of Dr Greenberg’s evidence).
I have earlier recounted discussion at the hearing of the appeal concerning the apparent emphasis placed upon the question of causation of Mr Perri’s undoubted weight gain. Whilst the relevance of matters such as pre-injury lifestyle is, in my view, not apparent, no argument has been advanced that the Arbitrator had failed to take into account a matter relevant to the issue of causation. I am not persuaded that any relevant error is demonstrated by the suggested disregard by the Arbitrator of the history as recorded by Dr Greenberg.

Ground eight

The submission made in support of ground eight asserts that the Arbitrator, in taking into account the absence of evidence as to “steps [Mr Perri] took to lose weight”, had addressed the question of causation by taking into account an irrelevant consideration. It is clear that, if such complaint is made out, such might constitute error of law.
The relevant passages of the Arbitrator’s reasons are found at T51.13 as noted at [53] above and at T52.11 which is as follows:
“There is no evidence of [Mr Perri], as I said, attempting to lose the weight or what he did which might have some bearing on how I would assess all of the evidence. If, for example, he had said he had attempted to lose weight by certain exercises or a special diet and had not been successful, that might have changed the picture and, indeed, might have changed the medical opinions.”
The respondent argues that “weight control post injury” is “entirely relevant” given that the claim is brought in respect of a “consequential injury [sic]” (written submissions at [16]). It is asserted that the Arbitrator “needed to consider what occurred post injury to determine the cause of [Mr Perri’s] weight gain…”.
Mr Perri’s allegation was that, having ceased his duties as a concreter by reason of injury, and because of his post-injury incapacity and inactivity, he quickly gained weight. It is apparent that the Arbitrator had accepted that there was a significant weight gain post-injury given her statement in the course of her reasons earlier noted (at T51.13) that “the amount of weight that [Mr Perri] gained it would seem to me could not be solely attributed to a lack of activity”.
It is, in my opinion, not apparent what relevance post-injury weight loss efforts had to the question of causation of weight gain and, in turn, the question of causation of whole person impairment. I reject the respondent’s argument that such matters were relevant to the ultimate question of causation. It is clear that this matter was treated by the Arbitrator as being of some considerable significance in her deliberation of the question before her, and in so doing has, in my opinion, erred in taking into account an irrelevant consideration. That error has, I find, affected her decision. Ground eight is made out.

Ground nine

The submission put in support of ground nine asserts that Mr Perri “does not have to establish that the foot injury is the only cause of his substantial weight gain”. Submissions at the hearing of the appeal make it reasonably clear that the complaint made is that the Arbitrator applied the wrong test as to causation when it was stated that proof was necessary that the weight gain “was solely due to the ankle injury”. Those words appear in the following context (at T51.24):
“…I certainly accept the ankle injury and the period of inactivity and it would be natural for most individuals to put on some weight but, to put on the amount that he did, I do not believe that [Mr Perri] has established was solely due to the ankle injury.”
The respondent, in written submissions on this appeal, accepts that this ground “deals with the question of causation” (at submissions [17]) and that the Arbitrator had “acknowledged the appropriate test [to be applied] in relation to causation”. That appears to be a reference to the Arbitrator’s acceptance of Mr Page’s submission (noted at T50.19) that one takes a common sense approach to the issue of causation.
Mr Page had placed reliance on the decision of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 (March) in support of the submission concerning a question as to causation being answered by reference to common sense. That was a case concerning an allegation of negligence in which the question of causation of damage arose. Of relevance to the ground presently being considered, the following, concerning causation in the context of legal responsibility, was stated by Mason CJ (at 509):
“It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because ‘questions of cause and consequence are not the same for law as for philosophy and science’, as Windeyer J. pointed out in National Insurance Co. of New Zealand Ltd. v. Espagne [(1961) 105 CLR 569, at p 591]. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell [(1932) 147 LT 262 at p 264], per Lord Wright; Sherman v. Nymboida Collieries Pty. Ltd. [(1963) 109 CLR 580 at pp 590–591], per Windeyer J.”
The decision in March was considered by Allsop P (as his Honour then was) in his leading judgment in Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 (2 September 2011) where the Court was concerned with the concept of causation arising from proper construction of the terms of particular legislation. His Honour (with whom Basten and Young JJA agreed) stated (at [66]):
“In Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Mason CJ, Dawson J, Gaudron J and McHugh J stated that the Trade Practices Act, s 82(1) (the equivalent of the Fair Trading Act, s 68(1)) should be understood as taking up the common law practical or common sense concept of causation discussed in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506. One aspect of that case which remains uncontentious is that causation in terms of legal responsibility does not require the impugned cause to be the sole cause; it must be a cause: March v Stramare at 509. The same obtains in respect of the causation question embedded in the phrase ‘by conduct’ in the provision under consideration: Henville v Walker [2001] HCA 52; 206 CLR 459 at 469 [14] (Gleeson CJ), 480 [59]–[60] (Gaudron J), 493–494 [106]–[109] (McHugh J), 509 [163] (Hayne J) and 507 [153] (Gummow J, agreeing with McHugh J and Hayne J).” (emphasis added)
The respondent submits that the “comments made by the Arbitrator reflect her general conclusion that [causation had not been established]”. Reference is made to that conclusion of the Arbitrator noted at [55] above.
I reject the respondent’s suggestion that the Arbitrator was in some manner alluding to insufficiency of evidence in Mr Perri’s case. Reference by the Arbitrator to failure to establish that the weight gain was “solely due to the ankle injury” demonstrates, in my view, that the Arbitrator has applied a wrong test and has asked the wrong question concerning the issue of causation. That approach has led to error of law and I am of the opinion that such error has affected the Arbitrator’s decision. Ground nine is made out.

Ground ten

This ground challenges the correctness of statements made in that portion of the Arbitrator’s reasons that have been addressed in relation to ground nine. It is not clear as to what additional relevant error is suggested, however, given my conclusion that ground nine is made out, it is unnecessary to consider this ground. That is so given my conclusion that a wrong test was applied, which fact was demonstrated by the totality of the Arbitrator’s statements in the relevant passage of her decision.

CONCLUSION

Grounds eight and nine have been upheld on this appeal and the Arbitrator’s decision must be revoked. It remains to be determined as to what should be the appropriate order concerning future conduct of the proceedings: s 352(7) of the 1998 Act.
Given the circumstance that, in the interests of justice, there was a need to limit the range of argument on appeal, I have reached the view that it is not appropriate that a new decision be made in place of the Arbitrator’s decision on this appeal. The appropriate course, to enable ventilation of relevant issues,which might include the relevance or otherwise of the talem qualem principle (as discussed by Spigelman CJ in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 at [40]), is to remit the matter to another Arbitrator for redetermination. Appropriate orders appear below.

ORDERS

The award found in [1] of the Certificate of Determination dated 13 August 2015 is revoked.
The orders made in [2] and [3] of the Certificate of Determination dated 13 August 2015 are confirmed.
The matter is remitted for redetermination by another Arbitrator.

Kevin O'Grady
Deputy President

15 December 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE