Proops v MSS Security Pty Limited - [2024] NSWPICPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Proops v MSS Security Pty Limited [2024] NSWPICPD 45
APPELLANT:	Aaron Proops
RESPONDENT:	MSS Security Pty Limited
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-W2688/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	9 August 2024
ORDERS MADE ON APPEAL:	1. Appeal allowed. 2. Certificate of Determination dated 2 August 2023 is revoked. 3. Award for the appellant in respect of the claim for injury to the cervical spine. 4. The respondent is to pay the appellant’s expenses pursuant to s 60 of the Workers Compensation Act 1987. 5. The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and scarring arising out of the injury on 5 May 2015. 6. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Applications to Admit Late Documents dated 9 June 2023 and 29 June 2023 and attachments.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – whether worker sustained injury to his cervical spine in addition to injuring both upper extremities when he slipped and fell on wet decking – assessment of statement and medical evidence – medical expenses pursuant to section 60 of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Carroll & O’Dea Lawyers
Respondent:
Ms L Goodman, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL:	Proops v MSS Security Pty Limited [2023] NSWPIC 384
MEMBER:	Ms D Benk
DATE OF MEMBER’S DECISION:	2 August 2023

INTRODUCTION

The appeal is from a Certificate of Determination dated 2 August 2023.
The issue before the Member was whether the appellant had sustained a frank or consequential condition (injury) to the cervical spine as a result of an accident on 5 May 2015.
The Member determined that matter adversely to the appellant. The Certificate of Determination provided:
“1.     Award for the respondent in respect of the claim for injury to the cervical spine.
2.     The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder) and scarring arising out of injury on 5 May 2015.
3.     That the Medical Assessor is to be provided with the following:
(a)the Application to Resolve a Dispute and attachments;
(b)Reply and attachments, and
(c)Applications to Admit Late Documents dated 15 June 2023 and 29 June 2023 and attachments.”
The appeal is against the whole of the Certificate of Determination.
For the reasons that follow, the appeal as to Ground 1 is upheld.

BACKGROUND AND MEMBER’S FINDINGS

The appellant, Mr Proops, was employed by the respondent, MSS Security Pty Limited, as a concierge. He sustained injury on 5 May 2015 when he slipped and fell on wet decking at the Finger Wharf in Woolloomooloo. The fact of the accident having occurred was not in dispute.
The respondent accepted the claim in relation to the left shoulder, right ankle and subsequently right shoulder. The latter was accepted as a consequential injury. The injury to the right ankle resolved.
The claim with respect to the cervical spine was rejected on the basis that injury to that part of the body was not received in the course of employment as required by s 4 of the Workers Compensation Act1987 (the 1987 Act) and the employment was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act.
The Member summarised the evidence.
She noted from Mr Proops’ statement of 22 February 2023 that Mr Proops recorded that he slipped and fell landing heavily on his left elbow, twisting his right ankle. Mr Proops said he felt immediate pain to the left shoulder, right ankle and neck. Mr Proops attended his general practitioner and said that his “main focus” at the initial consultation was on the right ankle and left shoulder. Mr Proops said that the neck pain passed after a few days.
Mr Proops said that he told his general practitioner that his neck was painful. However there was no note in the GP’s records of this complaint.
The Member quoted with apparent acceptance[1] from Mr Proops’ statement the following:
“… cervical spine became a problem again in about April 2021 when I developed shooting pains in ‘my neck as well as numbness in my right arm, shoulder and neck. The pain was like a stabbing pain in my lower neck and I feel I have limited neck movement’.
… I confirm that I did injure my neck initially in the accident and the neck pain vanished after a few days. However, the neck pain returned with some level of severity after I was more reliant on my right shoulder after the left shoulder operations and I was dependent on my right arm for all my lifting, driving and my other work duties. This placed more pressure on my neck as well as my shoulder. My significant neck pain commenced about six months after my right shoulder pain started.”[2]
[1] Proops v MSS Security Pty Limited [2023] NSWPIC 384 (reasons), [73].
[2] Reasons, [11].
The Member noted that the incident notification form dated 5 May 2015 and the claim form signed and dated 15 May 2015 recorded injuries to the left shoulder and right ankle only.
The Member summarised the medical evidence at length. The principal evidence relied upon by the appellant comprised a series of reports from Dr J Brian Stephenson, orthopaedic surgeon.
The Member noted that there was some inconsistency in the history of injury recorded by Dr Stephenson in his report of 14 April 2022. In the claimant’s details section of the report, Dr Stephenson recorded injury “to the left shoulder and right ankle”, but under the history of injury Dr Stephenson recorded:
“As concierge, he slipped on wet decking at the Finger Wharf, Woolloomooloo causing injury to neck and both shoulders.”[3]
[3] Application to Resolve a Dispute (ARD), p 43.
The Member said of this note:
“The intervening paragraphs do not explain what happened to the right ankle nor how the neck was incorporated into the claim in the absence of its initial acknowledgement as being part of the injuries recorded.”[4]
[4] Reasons, [15].
The Member then recorded a more extensive quotation from Dr Stephenson’s report, under a further heading “History of Injury”. This paragraph of Dr Stephenson’s report referred to the left shoulder and right ankle.
The Member said of the more extensive notation:
“It is unclear why there are two ‘History of Injury’ paragraphs in the same medicolegal report and why they are inconsistent.”
Dr Stephenson assessed Mr Proops as having a 7% whole person impairment as a result of the cervical spine injury.
The Member set out from Dr Stephenson’s report of 30 May 2023 the doctor’s response to specific questions asked of him, in particular:
“(1) What is your diagnosis for the cervical spine injury?
The diagnosis is that of musculoligamentous sprain to the cervical spine resulting from the fall on wet decking. As he went down, he injured both shoulders and the cervical spine.
(2) Did our client sustain a direct injury to his cervical spine in the subject accident?
Yes and I note there is agreement from Dr Yu in that regard as a pain specialist and also an acknowledgement by Dr Simon Tan, Associate Professor, that there should be a neurological assessment which relates to the neck.

(3) …
(4) Your opinion on whether the cervical spine injury was exacerbated, accelerated or aggravated as a result of secondary impact of one or more of his other injuries? Please explain your answer.
Whilst that is a consideration, in my opinion, it was an injury per se, that is, a direct injury to the cervical spine in the subject accident.”[5]
[5] Application to Admit Late Documents (AALD) dated 9 Jun 2023 (referred to by the Member as 15 June 2023), p 7.

The Member quoted from the report of Dr Howard De Torres dated 29 June 2022. Dr De Torres noted in part of the passage quoted by the Member:
“He has also developed what appears to be a whiplash injury to his neck as a result of the fall, and to this end he has had two facet injections for the pain.”[6]
[6] ARD, p 55.
The appellant was referred to Dr Rahme, treating orthopaedic surgeon, and by Dr Rahme to Dr Moses.
Dr Moses, who saw the appellant on six occasions, reported in his report of 17 December 2015, “examination of his cervical spine is unremarkable”.[7] The Member said there was no record of any attention to the neck by Dr Moses.
[7] ARD, p 65.
The appellant was treated by A/Prof Simon Tan. On 21 August 2019 A/Prof Tan said “[the appellant] has a lot of paraspinal and neck irritation related to the altered use and I would like Tom to provide some deep tissue work. I am confident this should settle.”[8]
[8] ARD, p 85.
On 21 April 2021 the Member noted that A/Prof Tan reported, in part: “I still believe there is a contributing factor from his neck and I understand Tom directs management in this region.”[9]
[9] ARD, p 99.
The reference to “Tom” is to the physiotherapist, Mr Lombardo.
The appellant was examined by Dr Kuo on 18 February 2020. He reported that on examination “[c]ervical spine demonstrated a good range of movement”.[10]
[10] ARD, p 102.
Dr James Yu referred Mr Proops for an MRI of his cervical spine to “delineate the possible pain generators contributing to his neck pain and shoulder pain”.[11]
[11] ARD, p 122.
The Member quoted from Dr Yu’s report of 12 January 2022 as follows:
“Neck pain possibly due to multilevel cervical facetogenic and discogenic issues most prominent at C5/6 and C6/7 mixed with musculoligamentous issues
…
The nature of his injury on 5 May 2015 falling and slipping on a decking could have caused direct injury to his cervical spine. The incident could have triggered the facetogenic and discogenic issues that we can see in Mr Proops’ most recent MRI, which continued to deteriorate. We usually do not see these early changes in his age group.”[12]
[12] ARD, p 126.
She noted the certificates of capacity which were directed to the left shoulder, right foot and right ankle.
She considered the very extensive medical records from the Bass Hill Medical Centre, noting in essence there that there was no reference to neck pain or neck treatment.
The Member then summarised the reports of Dr Machart dated 3 May 2022, 30 September 2022 and “5 June 2022 [sic, 2023]”.
She quoted from 3 May 2022 the following passage:
“Mr Proops developed pain at the base of the neck about 12 months ago. There was no additional injury. This was diagnosed by the physiotherapist as disc pathology. He had an MRI. He had physiotherapy and nerve blocks which did not help.”[13]
[13] Reply to Application to Resolve a Dispute (reply), p 18.
Dr Machart’s diagnosis in respect of the cervical spine was:
“Pain, part of chronic pain syndrome, in presence of mild, age-related spondylosis. No connection to the injury of 05/05/2015 anatomically or pathologically identified.”[14]
[14] Reply, p 20.
Dr Machart on 30 September 2022 said that he did not agree with Dr Yu’s proposed facet blocks at C5/6 and C6/7 level, making the observation, “I am not in agreement that 4 separate facet joints were injured in the mechanism of injury as described.”[15]
[15] Reply, p 25.
The Member quoted from the 5 June 2023 report as follows:
“There was no evidence of cervical spine injury, none reported or documented as contemporaneous evidence.
There is no connection between the injury to the shoulder and the cervical spine pathology. The … notion of overuse is not part of evidence-based medicine ...
There was no specific injury identified. I do not know why the cervical spine was investigated. This was not a feature of injury. It is difficult to consider the investigation of the cervical spine as reflecting the injury.
Bone scan conducted 6/9/2022 was for the purposes of assessment of neck pain or upper limb pain, possibly of C5/6 and C6/7. Injury was not mentioned. Mild discovertebral changes were identified at C6/7.
…
None of the investigations were suggestive of injury to the neck, and none was evident in the narrative or the contemporaneous evidence.”[16]
[16] AALD dated 29 June 2023, pp 4–5.
The Member set out in summary fashion the parties’ submissions which need not be noted at this time.
Her dispositive findings were set out in paragraphs [64]–[82].
She said:
“On the basis of the evidence, I find that the [appellant] did not sustain an injury to the neck in the slip and fall incident on 5 May 2015. I make this finding on the basis of the information contained in the claim form and notification of incident which identified areas of injury as the right ankle and left shoulder completed all within three weeks of the injury.”[17]
[17] Reasons, [64].
She then went on to consider whether or not the appellant had suffered a consequential condition to his cervical spine.
After quoting various authorities, including Kooragang Cement Pty Limited v Bates,[18] she concluded:
“I note the submissions and specifically the focus on the lack of treatment immediately following the claimed incident. In my view the absence of treatment is not fatal to the [appellant’s] claim of the presence of a consequential condition … There is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not in issue … I emphasise at this stage, that I have no reason to doubt the [appellant’s] credibility.”[19] (citations omitted)
[18] (1994) 35 NSWLR 452, 461G, 462E, 463–464.
[19] Reasons, [73].
The Member then directed herself: “When making this assessment, I also have to undertake a common sense evaluation of the causal chain of events”.[20]
[20] Reasons, [74].
Having rejected the appellant’s argument that the insurer had paid for physiotherapy and that this represented an admission of liability, she said:
“As regards the weight to be given to Dr Stephenson’s report, I must find that his findings are based on an incorrect history, in that he was of the view that the [appellant] had sustained a frank injury to the neck on 5 May 2015. This is not so on the evidence before me. It follows findings that flow from that assumption are incorrect. His report does not refer to the claim form, clinical notes or incident reports. This finding does not assist the [appellant] as Dr Stephenson specifically excludes a consequential condition in his supplementary report, maintaining symptoms arise solely from the fall on 5 May 2015.
The [appellant] stressed that the radiological findings in the neck were reported to be greater than general findings in his age group. As indicated in [Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23], my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition. In any event, no reason is offered as to why such findings may be greater than that present in [a] man of his age group.”[21] (emphasis added)
[21] Reasons, [76]–[77].
The Member said:
“If the [appellant] had developed symptoms as a result of shoulder interventions and surgery, I would have expected that there be some record of complaint to these specialists. On the evidence before me, I cannot find there have been consistent complaints with regards to the neck/cervical spine throughout the years.”[22]
[22] Reasons, [78].
The Member noted that the evidence shows that between 2015 and 2019 there were no complaints of neck symptoms. The complaint in 2019 (four years after the fall) did not identify the cause of the symptoms nor did it record a history of the onset of symptoms. It is not until 2021 that the symptoms are “recorded, radiological investigations undertaken” but no clear diagnosis or cause for the symptoms has been identified.[23]
[23] Reasons, [80].
The Member found:
“Overall, I cannot find that the [appellant] has a consequential condition to the cervical spine as a result of his workplace injury on 5 May 2015. This is because there is no complaint in the clinical records of symptoms in 2015, 2016, 2017, 2018. There is a complaint of pain in 2019 but no real investigation or treatment is rendered and further there is a failure at that point to reference those symptoms to any workplace injury or intervention arising from that injury. A deterioration is noted in 2021 at which time treatment is rendered but again no record of mechanism of injury or complaint is identified with ongoing intervention recommended by neurosurgeon Dr Mobbs to clarify the pain generator but which did not take place. At the time of my Determination, there has been no firm diagnosis established and the treating evidence before me is silent on the relationship of any neck/cervical spine symptoms to the original injury. I find that there is no consistent complaint of symptoms. The causal chain has not been established or satisfied. Dr Stephenson specifically excludes consequential injury/condition and Dr Machart is of the same view, but comes to his conclusion using a different rationale.
Applying the common sense test, as I must do, I cannot find on the basis of the extensive medical evidence and special intervention described above, that the chain of causation has been satisfied through the lens of the common sense test, and so cannot find the symptoms in the cervical spine are consequential to the work injury, on the balance of probabilities. For this reason I must find in favour of the respondent.”[24]
[24] Reasons, [81]–[82].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter on the papers without holding any formal conference or hearing. I note that the parties are in agreement with this course.

THRESHOLD MATTERS

The respondent accepts that the appeal was lodged within 28 days of the decision and accordingly was lodged in time. Furthermore, the respondent accepts that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

NATURE OF THE APPEAL

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. “The appeal is not a review or new hearing.”
The jurisdiction additionally provided includes:
“(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).”

GROUNDS OF APPEAL

The appellant relies on four grounds of appeal, namely:
Ground 1 – Error of fact in finding an absence of causation of pathology in the cervical spine referable to a frank injury occurring on 5 May 2015 (or, in the alternative to find a consequential injury to same).
Ground 2 – Error of law in failing to apply a correct legal test for consequential injuries.
Ground 3 – Error of law in failing to determine s 60 medical claim.
Ground 4 – Error of law in failing to give adequate reasons.

GROUND 1

Appellant’s submissions

The appellant refers to the passage at paragraph [64] of the reasons dismissing the frank injury with the observation that the paragraph dismissed the finding of frank injury “with virtually no reasoning.”
The appellant observes that the Member, having outlined much of the evidence, “simply dismisses” the contention of frank injury “on the basis the neck was not referred to in the contemporaneous claim documents.”
The appellant submits:
“There was no direct impact to the neck and it is natural that, despite feeling pain there immediately, that it would not be recorded in the account of the accident at that time. Indeed, his ‘main focus’ in the early days post injury (see para [27] of the statement) was on the right ankle and left shoulder. He did, however, in fact tell his doctor about the neck as well, as is his unchallenged evidence from that paragraph. It is unclear why this evidence was not accepted when, in para [73], the Member confirmed she had ‘no reason to doubt the [appellant’s] credibility’.”[25]
[25] Appellant’s submissions, [13].
The appellant then submits that paragraph [73] of the reasons is found in the discussion of the question of the consequential injury and that the balance of the reasons after paragraph [64] “must be regarded as pertaining to the case theory relating to the consequential injury, not the frank injury. Paragraph [73] is illogical.”[26]
[26] Appellant’s submissions, [15].
The basis of the alleged illogicality is that because the discussion is in respect of consequential injury there would be no evidence of contemporaneous complaint. This follows from the fact that consequential “by definition, occurs some time after the index injury.”
The appellant submits that the Member applied low weight to Dr Stephenson’s report at paragraph [76]. The basis of the Member’s reasoning was that she had found Dr Stephenson had an incorrect history of frank injury to the neck as there was no “evidence of such an injury” before her. The appellant submits that the Member’s conclusion in this regard is problematic for two reasons. “Firstly, there was such evidence, namely the uncontradicted evidence of the worker which she regarded as credible, and secondly, these reasons pertained to the question of consequential injury and, therefore, the existence of a frank injury was irrelevant.”[27]
[27] Appellant’s submissions, [16].
The appellant submits that at paragraph [81] of the reasons the Member muddles the concepts of frank and consequential injuries. The appellant submits:
“One would not expect to see complaint of injury in the clinical material until the consequential injury had manifest[ed] to a sufficient level of symptomatology to justify medical interest. The Member has, respectfully, clearly misdirected herself as to the sort of evidence which would be relevant to such a claim.”[28]
[28] Appellant’s submissions, [17].
The appellant makes detailed submissions in support of a finding of fact in his favour.
The essence of the appellant’s submission is that he “established a prima facie case of injury. Indeed, the happening of the accident itself was not controversial. His account of pain in the neck was regarded as credible, and yet disregarded. The criticism the Member levied at Dr Stephenson actually applies to Dr Machart. It is Dr Machart who gives an opinion tainted by an incorrect history. He says ‘Mr Proops developed pain at the base of the neck about 12 months ago. There is no additional injury.” (emphasis in original).[29]
[29] Appellant’s submissions, [18].

Respondent’s submissions

The respondent submits that the only evidence of injury to the neck in the slip and fall incident of 5 May 2015 was that of the appellant worker, contained in his statement dated 22February 2023, made almost eight years after the incident relied upon. This statement was inconsistent with the injury notification and the worker’s injury claim form. There was no explanation by the appellant worker as to why this was so.
Although the appellant worker stated that he had mentioned to his GP, Dr Al Aukidy at Bass Hill Medical Centre, that his neck was painful, there was no evidence before Member Benk from Dr Al Aukidy explaining the lack of recording of neck symptoms by the doctor. In addition, Member Benk found that Dr Stephenson’s opinion was based on an incorrect history, in that he had accepted, without question and without analysis, that the appellant worker had sustained a frank injury to his neck on 5 May 2015. Dr Stephenson had not referred to the claim form, clinical notes or incident report.
The respondent submits that the Member’s reasons for her findings and decision ought to be read as a whole and not compartmentalised as submitted by the appellant. That when read as a whole, the Member has given appropriate reasons for not accepting the opinion of Dr Stephenson. Member Benk looked to see if a chain of causation could be established between any symptoms in the appellant worker’s neck and the incident of 5 May 2015. She noted a deterioration in the appellant worker’s symptoms in 2021 at the time when treatment is rendered but noted again that there was no record of mechanism of injury or complaint. She made and specifically focused on the lack of treatment immediately following the claimed incident and “stated that the absence of treatment was not fatal to the appellant worker’s claim of consequential condition.”[30]
[30] Respondent’s submissions, [18].
The respondent submits that Member Benk noted that Dr Stephenson specifically excluded consequential injury/condition and Dr Machart was of the same view but came to his conclusion using a different rationale. She therefore found the causal chain had not been established or satisfied.
The respondent submits that the Member’s reasoning is not erroneous.
The respondent then directs attention to Raulston v Toll Pty Limited[31] in which Roche DP applied Whiteley Muir & Zwanenberg Limited v Kerr.[32]
[31] [2011] NSWWCCPD 25 (Raulston).
[32] (1996) 39 ALJR 505.
The essence of the material from Raulston is that the Member’s decision should not be interfered with unless it is shown to be wrong.

Appellant’s submissions in reply

The appellant submits that so far as the claim with respect to consequential injury is concerned, the Member did not grapple with the fact that because the injury is consequential in nature it is not something that would arise in close temporal proximity to the index injury.
The appellant directs attention to Container Terminals Australia Limited v Huseyin[33] and Mason v Demasi[34] emphasising the need to exercise caution when drawing conclusions on causation based on contemporaneous material contained in medical notes.
[33] [2008] NSWCA 320.
[34] [2009] NSWCA 227.
The appellant submits:
“The worker’s statement is not inconsistent with what was recorded earlier, contrary to what is stated at [paragraph [12] of the respondent’s submissions] – it simply reflects the totality of the claim, part of which had been omitted earlier for reasons already explained. And there is, contrary to what is submitted by the respondent, an explanation – namely focus on other body parts.”[35]
[35] Appellant’s submissions in reply, [4].

Consideration

For the reasons that follow the appellant’s challenge to the Member’s determination with respect to the frank injury to the neck on 5 May 2015 is upheld.
The Member’s apparent acceptance of the appellant’s statement evidence is decisively against her conclusion that there was no evidence of frank injury to the neck on 5 May 2015. The appellant’s evidence was that following the accident he had neck pain and that he reported to his general practitioner. The pain resolved within a few days. In that circumstance it is unsurprising that there was no treatment given.
The Member did not reject the appellant’s evidence. Indeed she says there was no issue as to his credibility. The Member did not find the evidence to be unreliable. It follows that there was evidence of injury to the neck on 5 May 2015.
The Member dismissed the frank injury claim on the basis that “the information contained in the claim form and notification of incident” identified areas of injury as the right ankle and the left shoulder. That was so, but the Member was required to engage with the appellant’s statement evidence and the very substantial medical support for a causal relationship between the events of 5 May 2015 and the neck injury.
Dr Stephenson’s evidence of 14 April 2022 was plainly premised on the symptom of neck pain then complained of being the result of the fall of 5 May 2015.
Dr Stephenson’s opinion is exemplified in the report dated 30 May 2023.
He summarised at length the evidence of Drs Tan and Yu and responds to the questions asked of him:
“(1) What is your diagnosis for the cervical spine injury?
The diagnosis is that of musculoligamentous sprain to the cervical spine resulting from the fall on wet decking. As he went down, he injured both shoulders and the cervical spine.
(2) Did our client sustain a direct injury to his cervical spine in the subject accident?
Yes and I note there is agreement from Dr Yu in that regard as a pain specialist and also an acknowledgement by Dr Simon Tan, Associate Professor, that there should be a neurological assessment which relates to the neck.”[36]
[36] AALD dated 9 June 2023, p 7.
The Member dismissed Dr Stephenson’s evidence on the basis that he had recorded an incorrect history.
Dr Stephenson had the appellant’s statement evidence which was before and apparently accepted by the Member. That made clear that the appellant said he had neck pain following the events of 5 May 2015. Dr Stephenson said the appellant had injured his neck at that time.
The appellant is correct when he submits that Dr Machart’s history is incorrect. Dr Machart proceeds on the basis that the neck pain presented itself 12 months before his consultation. He does not acknowledge that the appellant complained of neck pain at the time of the accident.
Dr Machart’s conclusion is based on the proposition that there was no evidence of cervical spine injury, none was reported or documented contemporaneously with the events of 5 May 2015. That conclusion is not consistent with the accepted evidence derived from the appellant’s statement.
Having found error, the jurisdiction in s 352(5) of the 1998 Act is engaged and I am required to correct the error. The question is whether I should remit the matter back to the Member or another member (s 352(7)), or determine the matter in accordance with s 352(6A).
For the reasons that follow, I propose to re-determine the matter in accordance with s 352(6A).
The appellant has submitted correctly that this course is open and there is no submission opposing this approach from the respondent.
All of the available evidence has presumably been adduced by each party.
The Member noted that neither party applied to adduce oral evidence or to cross examine any witness, including the appellant. It follows that the Member had no advantage over me in determining the matter on the documentary evidence.
The outcome of the determination of the issue before the Commission is binary, that is to say either the appellant did or did not sustain injury to the cervical spine on 5 May 2015.
By way of correcting the error, I find for the reasons that follow the appellant sustained injury to the cervical spine on 5 May 2015.
Firstly, I accept the statement evidence of the appellant that he did have neck pain at the time of the initial trauma. I acknowledge that the statement was prepared in February 2023, nearly eight years after the events, and that neither the claim form or the incident report record injury to the cervical spine. Notwithstanding, there is no reason to doubt the appellant’s evidence and I accept it.
Secondly, I accept the appellant’s submission that the absence of treatment notes is explained by the appellant’s evidence that the neck pain resolved shortly after the initial trauma.
Thirdly, I prefer the evidence of Dr Stephenson as to causation because it is based on the accepted history. As explained above, Dr Machart’s evidence is based on non-acceptance of the appellant’s statement evidence.
Fourthly, Dr Stephenson’s opinion as to causation is supported by other medical opinion. The passage quoted at [29] above, quoted by the Member from Dr Yu, supports the appellant’s case on causation as does Dr Yu’s opinion with respect to the imaging showing changes not expected in a man of the appellant’s age.
Dr Machart accepts the changes are present but does not agree they are related to the accident of 5 May 2015.[37] But I reject that opinion because Dr Machart does not accept the appellant’s history of neck injury on 5 May 2015.
[37] See report dated 3 May 2022, reply, p 17.
Fifthly, Dr De Torres in his report of 29 June 2022 at page 2 says Mr Proops “appears” to have sustained a whiplash injury to the neck as a result of the fall. And to this end he has had two facet injections for the pain.[38]
[38] ARD, p 55.
Sixthly, A/Prof Tan in his report of 21 August 2019 says the appellant “has a lot of paraspinal and neck irritation related to the altered use”.[39] In the report of 21 April 2021, A/Prof Tan said “I still believe there is a contributing factor from his neck …”.[40]
[39] ARD, p 85.
[40] ARD, p 99.
Seventhly, I accept the appellant’s statement that he told the GP about his neck pain. There is no explanation for the absence of a note in the GP’s records but this is not unusual. The absence of any note in the GP’s records would explain why the GP did not order an x-ray of the neck on 5 May 2015.
Eighthly, I accept the appellant’s submission that the incident report and the claim form would not be expected to make reference to the injury to the neck on the basis that the appellant says the neck symptoms resolved within three weeks.
Further, because the neck symptoms resolved shortly after the initial trauma, I discount Dr Moses’ findings on 17 December 2015 that the appellant had no neck pain nor paraesthesia in the arm and that examination of the cervical spine was unremarkable. Although I would have expected a note in the 2020 report by Dr Kuo, the absence of a reference to neck pain at that time is not determinative.
I accept the appellant’s submission that for the purpose of s 9A of the 1987 Act, the fall on 5 May 2015 was a substantial contributing factor to the injury to the appellant’s cervical spine condition.
I am satisfied that the Member’s determination is affected by error which requires correction. The Member’s determination is revoked. Furthermore, pursuant to s 352(6A) I substitute my finding in favour of the appellant.
Accordingly, there will be an award for the appellant with respect to the injury to the cervical spine.
I add that were it necessary, I would not disturb the Member’s finding with respect to consequential injury to the cervical spine. The evidence of Drs Stephenson and Machart is against a finding of consequential injury.

GROUND 2

Appellant’s submissions

The appellant submits that the factual errors demonstrated for the purpose of Ground 1 above suggest that the Member failed to engage with the legal tests required by the authorities. The submission is that “the preponderance of the evidence set out in Ground 1 simply does not gel with the tests so enunciated.”[41]
[41] Appellant’s submissions, [20].

Respondent’s submissions

The respondent submits that the Presidential Member would not be satisfied of the factual errors demonstrated for the purpose of Ground 1. Member Benk correctly identified the tests required for the finding of frank injury and/or consequential condition and specifically applied those tests to the evidence. For instance, requiring the establishment of a causal chain in the case of consequential condition.
The respondent submits the appellant worker has not established in what way “the preponderance of the evidence set out in Ground 1 simply does not gel with the tests so enunciated” and how this demonstrates error on the part the Member.

Appellant’s submissions in reply

The appellant submits that the preponderance of evidence is set out in his submissions in chief. The appellant makes the point “it does not suffice to set out evidence (which favours the worker) and then set out the test (which favours the worker) and then find for the respondent without proper reasoning.”

Consideration

In view of my findings with respect to Ground 1 of the appeal, it is unnecessary to determine Ground 2 of the appeal which, in any event, does not appear to represent any independent complaint with respect to the Member’s decision.

GROUND 3

Appellant’s submissions

The appellant submits that the Member misdirected herself at paragraph [62(a)] of the reasons. It is true that the only issue was whether the neck condition was compensable, but the appellant submits that “ignores the point that for the [m]ost part, the s 60 claim (excluding for the neck) was not controversial. An award should have been made (at least excluding the neck) even if the liability findings on the neck are correct. The appellant’s medical expenses must be compensable at least for the non-controversial body parts.”[42]
[42] Appellant’s submissions, [22].
It is submitted the Member failed to exercise jurisdiction in relation to the s 60 claim and she erred at law accordingly.

Respondent’s submissions

The respondent submits there was no dispute raised by the respondent in respect of s 60 expenses other than in respect of the cervical spine. The Commission therefore had no jurisdiction to enter an award in respect of such medical expenses.

Appellant’s submissions in reply

The appellant submits medical expenses were part of the proceedings and the ARD form records this (the box was ticked and the particular expenses of concern were set out in the body of the ARD. The treatment expenses include physiotherapy which is not ex facie limited to the neck). There is no attempt by the respondent to strike out the ARD as devoid of jurisdiction. “It is correct no submissions were made below. This is because it was not a controversial point …”.[43]
[43] Appellant’s submissions in reply, [12].

Consideration

I accept the respondent’s submissions. There was no controversy as to expenses not necessary or unreasonably incurred with respect to body parts other than the cervical spine. In the event, there will be an award for the appellant with respect to s 60 expenses, including the cervical spine.

GROUND 4

Appellant’s submissions

The appellant complains that this ground “ties together the above three grounds”. He then directs attention to the submissions made in respect to Grounds 1, 2 and 3.

Respondent’s submissions

The respondent submits that not only has the Member provided reasons for her findings, she provided cogent reasons for doing so.
The respondent submits that the Member’s reasons were clearly adequate and the reasons for her preference for one case over the other was apparent.

Appellant’s submissions in reply

The appellant in reply submits that “for the reasons set out in the submissions in chief, this requirement was not satisfied.”[44]
[44] Appellant’s submissions in reply, [15].

Consideration

Having regard to my findings with respect to Ground 1 of the appeal, it is unnecessary to determine this ground of appeal.

CONCLUSION

Ground 1 of the appeal is made out.
The Certificate of Determination dated 2 August 2023 is revoked. The Commission makes the following determination:
“(1)    Appeal allowed.
(2)     Certificate of Determination dated 2 August 2023 is revoked.
(3)     Award for the appellant in respect of the claim for injury to the cervical spine.
(4) The respondent is to pay the appellant’s expenses pursuant to s 60 of the Workers Compensation Act 1987.
(5)     The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder), left upper extremity (shoulder), cervical spine and scarring arising out of the injury on 5 May 2015.
(6)     That the Medical Assessor is to be provided with the following:
(a)Application to Resolve a Dispute and attachments;
(b)Reply and attachments, and
(c)Applications to Admit Late Documents dated 9 June 2023 and 29 June 2023 and attachments.”

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

9 August 2024