Ram v Pubcorp Pty Ltd - [2024] NSWPICPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ram v Pubcorp Pty Ltd [2024] NSWPICPD 1
APPELLANT:	Alvin Ram
RESPONDENT:	Pubcorp Pty Ltd
INSURER:	Hotel Employers Mutual Limited
FILE NUMBER:	A1-W5819/22
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC
DATE OF APPEAL DECISION:	8 January 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 18 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – consideration of evidence – calling of applicant to give oral evidence – difference between credibility of witness’s evidence and reliability of witness’s evidence – held that there is a distinction between credibility of witness’s evidence and reliability of witness’s evidence
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Barter, counsel
LHD Lawyers
Respondent:
Mr T Grimes, counsel
McCabes Lawyers
DECISION UNDER APPEAL
PRINCIPAL MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	18 November 2022

INTRODUCTION

The appellant (Mr Ram) was employed by the respondent (Pubcorp Pty Ltd) as a gardener/handyman at Warwick Farm between 19 December 2018 and August 2019.
On 21 June 2019, the appellant slipped and fell whilst carrying out his work duties. He lodged an incident report on the day but this was not before the Member.
On or about 13 November 2019 the appellant lodged a claim for workers compensation.[1] In that claim, the appellant stated that he had injured his back and legs in the incident on 21 June 2019 and also by virtue of heavy lifting work that he was required to undertake in July 2019.
[1] Application to Resolve a Dispute (ARD), pp 5–13.
The appellant resigned on 15 August 2019.
The respondent accepted liability in relation to that claim for injuries to the appellant’s back and payments were made to him under the Workers Compensation Act 1987 (the 1987 Act). This included a payment for medical expenses for back surgery being an L5/S1 discectomy on 25 March 2020[2] and a left L4/L5 lumbar discectomy and decompression on 26 March 2021.[3]
[2] ARD, p 180.
[3] ARD, p 193.
On 21 September 2021, the appellant made a claim for further medical expenses in the amount of $16,868.76 in relation to a proposed anterior cervical discectomy and cervical fusion at C5/6, being surgery recommended by the appellant’s treating neurosurgeon, Dr Darwish.[4] In that further claim, the appellant alleged that he had suffered injuries to his neck (and right shoulder) as a result of “a frank incident where the worker fell down a slope in the course of undertaking his duties, and physical nature and conditions of his employment”. The frank incident referred to the fall on 21 June 2019.[5]
[4] ARD, p 29.
[5] In the ARD, the appellant inserted the date of injury of 16 June 2019. However, all of the material put before the Member indicates the injury occurred on 21 June 2019 and the case proceeded on that basis. No application was made to amend the date of injury. However, I take it to be a typographical error.
On 16 March 2022, the respondent denied liability.[6] The respondent disputed that the appellant had suffered any injury to his neck during the course of his employment (within the meaning of s 4 of the 1987 Act). It stated that, if there was an injury, the appellant’s employment was not the main contributing factor to it (s 4(b) of the 1987 Act). The respondent denied that the appellant’s employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of any disease injury in the appellant’s cervical spine or right shoulder (s 4(b)(ii) of the 1987 Act). Finally, the respondent stated that if there was any compensable injury, the claimed medical or related treatment was not reasonably necessary (ss 59 and 60 of the 1987 Act).
[6] ARD, pp 14–19.
A review was sought and undertaken, but the respondent maintained its denial of liability.[7]
[7] ARD, pp 42–6.
On 8 September 2022, the appellant filed an Application to Resolve a Dispute (ARD).
As part of the ARD, the appellant filed a statement by the appellant dated 21 March 2022 which set out the salient factual matters in his application, including statements as to the onset of his neck pain and when he reported that to his manager and doctors.[8]
[8] ARD, pp 1–4.
The matter was heard by the Member on 7 November 2022. During that hearing, the parties agreed that the application should be amended to delete reference to the appellant’s upper extremities as no relief was sought in respect of those body parts during the proceedings.
Of more significance, for the purposes of this appeal, was that counsel for the appellant sought leave for the appellant to give oral evidence. The Member refused that application on the grounds that there was no contention that the appellant needed to address any omission or ambiguity in his written statement.
On 18 November 2022, a Certificate of Determination, with an accompanying statement of reasons,[9] was issued by the Member in the following terms:
“1.     Amend the application herein by deleting reference to the upper extremities wherever that terms appears.
2.      The [appellant] has not established that the need for surgery of the cervical spine proposed by Dr Darwish results from injury on 21 June 2019 or from the nature of this work on and prior to 15 August 2019.
3.      Award for the respondent.”
[9] Ram v Pubcorp Pty Ltd [2022] NSWPIC 643 (reasons).
The appellant has appealed that determination on four grounds:
(a)    Ground One: The Member erred in failing to exercise his discretion in favour of allowing the appellant to give oral evidence.
(b)    Ground Two: The Member erred in law by rejecting the written evidence of the appellant without the reasons for rejecting that evidence being put to him.
(c)    Ground Three: The Member erred in conflating the absence of recorded complaints with the absence of complaints.
(d)    Ground Four: The Member erred in fact by concluding that there was a significant lapse of time between the claimed date of injury and the appellant’s first complaints of neck pain.

ON THE PAPERS

I have read the material in this matter including the material that was before the Member and the written submissions of both parties. I have read and considered the Member’s statement of reasons. Both parties submit that it is appropriate for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
Pursuant to s 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act), I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.

THRESHOLD MATTERS

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

PRINCIPLES ON APPEAL

In terms of the ambit of the appeal, the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[10] that by reason of s 352(5) of the 1998 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. There can be no appellate intervention without a finding that there has been error.
[10] [2022] NSWCA 138, [11].
The nature of an appeal was enunciated by Roche DP in Raulston v Toll Pty Ltd.[11] In that matter, the general principles applicable to appeals under s 352 were helpfully summarised, including that, by reference to Whiteley Muir & Zwanenberg Ltd v Kerr,[12] whilst an arbitrator (now member) may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[13] which is dealt with in more detail later in this decision.

THE EVIDENCE

[11] [2011] NSWWCCPD 25; 10 DDCR 156.

[12] (1966) 39 ALJR 505, 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).

[13] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).

Certificates of Capacity

The Worker’s Injury Claim Form dated 13 November 2019, lodged by the appellant, described the slip and fall on 21 June 2019 and stated that he injured his hip, back and leg. It also described heavy lifting on 23 and 24 July 2019. The appellant described the body parts affected as his back and legs.[14]
[14] ARD, p 7.
The Certificate of Capacity dated 22 July 2021, completed by Dr Chandra Gounder, the appellant’s GP, refers to the injuries described in the original Worker’s Injury Claim Form but also includes “pain in his neck with numbness in his arms due to disc bulge”.[15]
[15] ARD, p 108.
The Certificates of Capacity dated 10 August 2021,[16] 21 September 2019,[17] 1 October 2021,[18] 7 October 2021,[19] 2 November 2021,[20] 25 November 2021,[21] 26 December 2021,[22] 17 January 2022,[23] 14 February 2022,[24] 14 March 2022[25] and 4 April 2022[26] all completed by Dr Gounder, similarly refer to the original back injury but in each certificate the following comment is added: “pain in his neck and rt shoulder due to the fall and compensating posuture [sic] due to back pains MRI showed buristis [sic] and tendinitis with joint effusion on her [sic] rt shoulder.”[27]
[16] ARD, p 113.
[17] ARD, p 123.
[18] ARD, p 118.
[19] ARD, p 128.
[20] ARD, p 133.
[21] ARD, p 138.
[22] ARD, p 143.
[23] ARD, p 148.
[24] ARD, p 153.
[25] ARD, pp 158, 163.
[26] ARD, p 168.
[27] ARD, p 113.

Radiological reports

A radiological report from I-Med Radiology, signed by Dr Mark Cohen, dated 19 August 2019 reported a narrowing of the C5/6 disc space, consistent with disc degeneration.[28]
[28] ARD, p 26; Reply to Application to Resolve a Dispute (reply), p 1.
A report from Southwest Radiology dated 26 August 2019 reported on a CT scan of the cervical spine noting early spondylotic changes at the C5/C6 level.[29]
[29] ARD, pp 27, 219, 295; reply, p 2.
Other imaging reports in October 2019,[30] 26 May 2020,[31] 15 July 2020,[32] 19 August 2020,[33] 10 September 2020[34] and 14 October 2020[35] were all directed to the lumbar spine.
[30] ARD, p 73.
[31] ARD, pp 74–5, 82.
[32] ARD, p 76.
[33] ARD, pp 77–9, 81.
[34] ARD, p 80.
[35] ARD, pp 83–4, 224–5.
An MRI report ordered by Dr Darwish was produced by Rayscan Imaging on 14 July 2021.[36] It reported findings in relation to the cervical spine which, in relation to the C5/6, stated: “Diffuse disc bulge with left and right para-foraminal components with high-grade foraminal stenosis on the left and low-grade foraminal stenosis on the right with possible root impingement. Mild cord flattening.” This report also reported on the lumbar spine.
[36] ARD, pp 94–5, 222–3; reply pp, 4–5.
The other radiological reports contained in the materials before the Member referred only to the lumbar spine and in one case, the right shoulder.

GP clinical notes

The clinical notes of Busby First Care Medical Centre for the appellant were before the Member. They covered the period from 21 November 2016 to 2 September 2020.[37]
[37] ARD, pp 236–300; reply, pp 6–70.
An entry on 20 May 2019 records the appellant complaining of pain in his lower back following heavy lifting for more than a week,[38] and at the consultation on 17 June 2019 the notes record that the appellant complained of back and leg pain.[39]
[38] ARD, p 246.
[39] ARD, p 246.
Noting that the frank injury referring to the fall occurred on 21 June 2019, all of the entries in relation to the injury at work, after that date and up to the last entry on 2 September 2020, refer only to complaints of back, leg and achilles pain. There was a discussion about radiological reports of the cervical spine on 23 and 28 August 2019, but the clinical notes contain no complaints of neck pain by the appellant preceding or postdating those scans.
On 9 July 2019, the clinical notes record that the appellant complained that he had had pain in both achilles tendons and his back on either side for three to four weeks, noting “cramps all muscles” and “doing heavy physical job”.[40]
[40] ARD, p 247.
On 14 July 2019, the appellant complained of pain in the right achilles tendon and lower lumbar area.[41]
[41] ARD, p 248.
On 18 July 2019 the results of the X-ray of the lumbar spine were discussed. On 1 August 2019 the appellant complained of lower back pain, leg and heel pain, achilles tendonitis and was advised of the results of X-ray reports.[42]
[42] ARD, p 249.
On 23 August 2019 the appellant’s GP discussed the X-ray reports in relation to this cervical, thoracic and lumbar spine results in detail. At that time, however, the appellant complained only of pain in his back and had mild tenderness on his whole back.[43] On 28 August 2019 the appellant’s GP discussed the CT of the cervical spine results with him and noted that the appellant had cervical spondylosis and discussed supportive measures. In addition, there was a discussion in relation to the CT of the appellant’s thoracic spine and lower back.[44]
[43] ARD, p 249.
[44] ARD, p 250.
On 4 September 2019, the appellant complained of pain radiating to both his legs and tenderness in the mid and lower back.[45] On 13 September 2019 the appellant again complained of pain in his lower back and both achilles areas. It was noted that since 26 July 2019 the appellant had been complaining of pain in his lower back with radiation to both legs with more pain in both achilles areas.[46]
[45] ARD, p 250.
[46] ARD, p 251.

Medical Reports

A report was obtained from Mr David Loe, registered psychologist, dated 20 May 2021. In that report, Mr Loe described the appellant as experiencing chronic pain in his lower back which gave rise to psychological symptoms. There is no reference to any neck pain in that report.[47]
[47] ARD, pp 88–9.
The appellant’s treating neurosurgeon is Dr Balsam Darwish. There are a number of reports from Dr Darwish. There is no mention of any neck pain or shoulder pain in his reports dated 14 October 2019,[48] 21 October 2019,[49] 21 January 2020,[50] 11 February 2020,[51] 22 April 2020,[52] 18 May 2020,[53] 28 May 2020,[54] 2 July 2020,[55] 24 August 2020,[56] 12 October 2020,[57] 20 October 2020,[58] 21 January 2021,[59] 9 March 2021,[60] 22 April 2021[61] and 31 May 2021.[62]
[48] ARD, p 173.
[49] ARD, p 176.
[50] ARD, p 178.
[51] ARD, p 179.
[52] ARD, p 180.
[53] ARD, p 181.
[54] ARD, p 182.
[55] ARD, p 184.
[56] ARD, p 185.
[57] ARD, p 186.
[58] ARD, p 188.
[59] ARD, p 190.
[60] ARD, p 192.
[61] ARD, p 193.
[62] ARD, p 194.
The first report noting complaints of pain in the neck is that of 5 July 2021.[63]
[63] ARD, p 195.
Thereafter, in his reports dated 19 July 2021, 22 July 2021, 23 August 2021 and 21 September 2021[64] Dr Darwish noted complaints of neck pain. In the report of 22 July 2021, Dr Darwish notes that the appellant told him that he injured his neck during the same fall when he fell off a slope The report states:
“At that time he had back and leg pain and was distracted by the leg pain and he did not focus on the neck pain. He did not lodge a claim at that time for the neck but he is confident that the injury occurred at the same time, which I agree with.”
[64] ARD, pp 196, 198, 200, 203.
In his report of 3 August 2021, Dr Darwish notes that the appellant complained of pain in the right shoulder.[65]
[65] ARD, p 199.
In a report addressed to the respondent’s insurer dated 27 September 2021, Dr Darwish diagnosed a C5/C6 disc prolapse with left C6 radiculopathy. Dr Darwish opined that the changes in the cervical spine “are most likely degenerative in nature aggravated by the nature of his employment and the work-related injury on 16 June 2019.”[66]
[66] ARD, pp 30–1.
In a further report dated 29 August 2022, this time addressed to the appellant’s legal representative, Dr Darwish referred to multiple consultations, surgeries and treatments between August 2019 and 31 May 2021 during which there were no complaints of pain in relation to the neck.[67] Dr Darwish noted that the appellant first complained of neck pain and stiffness during a review on 5 July 2021.[68] He noted that thereafter, on 19 and 22 July 2021, the appellant also complained of neck pain and on 3 August 2021, he complained of right shoulder pain.[69] Dr Darwish noted that complaints of both neck and shoulder pain, in addition to his continuing lower back pain, were made in all following consultations.[70]
[67] ARD, pp 98–102.
[68] ARD, p 103.
[69] ARD, p 103.
[70] ARD, p 104.
In that same report, however, Dr Darwish stated the onset of neck pain radiating to both upper limbs occurred “over the following few months” after the initial injury to the back. However, I note that that conclusion is inconsistent with the recitation of the many reviews between August 2019 and 31 May 2021 where no complaints of neck pain were made: see paragraph [39] above.
Dr Darwish concludes that the C5/C6 disc protrusion and foraminal stenosis is degenerative in nature but was aggravated by the appellant’s employment with the respondent and further opines that his employment was the main cause of the neck pain and arm symptoms.[71]
[71] ARD, p 105.
In his reports from October 2021 to April 2022, Dr Darwish records the appellant’s complaints of neck pain.[72]
[72] ARD, pp 206–211, 213.
There are several reports from Dr James Bodel, orthopaedic surgeon retained by the appellant’s legal representative. One was obtained in relation to the original claim for injuries to the back. It is relevant in that it describes the contemporaneous medical appointments with the frank injury on 21 June 2019 and the assessment of Dr Darwish which led to the surgery in March 2020 and notably there is no allegation of any injury to the neck arising as at June or July 2019, nor were there any complaints of pain in the neck region to the treating or assessing medical practitioners at that time.
In his report dated 29 September 2020, Dr Bodel identified that the body parts injured by the appellant during the course of his employment with the respondent were the back and referred pain to the right leg, with some tendonitis in the ankles.[73]
[73] ARD, p 54.
In his report dated 22 June 2022, Dr Bodel noted that the appellant was, at that time, complaining that he had neck and right shoulder girdle pain and mild left shoulder girdle pain. On examination, Dr Bodel found that there were complaints of tenderness in the trapezius muscle at the back of the neck on the right and guarding in that area, together with a reduced range of neck flexion, extension and rotation, with the most restricted rotation to the left.[74] Dr Bodel gave a diagnosis of a disc prolapse at C5/6, together with a rotator cuff injury to the right shoulder and a disc prolapse at the lumbosacral junction. He also found soft tissue injury to the thoracic spine. Dr Bodel opined that the work event was the primary contributing factor to the appellant’s ongoing complaints and agreed that a C5/6 discectomy was reasonable and necessary treatment for the injury to the neck.[75]
[74] ARD, p 60.
[75] ARD, p 62.

I note that Dr Bodel has referred to an incorrect test. In Woolstar Pty Ltd v Viapiana,[76] Snell DP noted:
"This passage from Dr Coughlan’s opinion misquotes the relevant test in s 60 of the 1987 Act, which is that treatment be ‘reasonably necessary’ (as opposed to ‘reasonable and necessary’). It has been held that a test of ‘reasonable and necessary’ would impose a higher requirement than that found in s 60, see Diab v NRMA Ltd [2014] NSWWCCPD 72; 16 DDCR 54, [70].”
[76] [2023] NSWPICPD 74, footnote to [95].
In a further report dated 20 July 2022, Dr Bodel confirmed that the appellant made no mention of any injury to his neck when he was originally assessed on 29 September 2020. Further, he noted that after having reviewed the complete set of local doctor’s notes, there was no reference at any stage to a complaint about neck pain.[77] Dr Bodel concluded that:
“There is no medical evidence in the contemporaneous documentation that he was ever complaining about his neck and only his mid-back and lower back and the history that I have therefore recorded, I believe, is accurate.
Undoubtedly, the type of fall that he had could have injured his neck but there does not appear to have been any reference to it in the material that you have provided here today.
There is a strong probability therefore that the need for the surgery as outlined by Dr Darwish is causally related to the injury, although the material that you have provided does not confirm that.”[78]
[77] ARD, p 68.
[78] ARD, p 69.
The appellant was referred by his GP to Dr Chandra Dave, orthopaedic surgeon, who reported on 7 January 2022 that the appellant was getting significant symptoms in his neck but that report said nothing about causation.[79]
[79] ARD, p 86.
Dr Powell, orthopaedic surgeon, was qualified by the insurer and provided a number of reports. In his first report dated 14 October 2019,[80] Dr Powell opined that the appellant’s lower lumbar spine injury was as a result of his work-related injuries and that the bilateral achilles tendonitis was an aggravation of an underlying pre-existing degenerative process.
[80] Reply, pp 71–81.
In his supplementary report dated 21 November 2019, Dr Powell reviewed the MRI scan and clinical notes and maintained his diagnosis that the appellant’s lower back symptoms derived from employment related injuries and work. Notably in this report Dr Powell stated:
“I found Mr Ram a very genuine and motivated individual who was frustrated by his ongoing lower back symptoms and associated incapacity. … It was difficult to extract all the necessary information from Mr Ram and he found it difficult to provide a detailed and sequential history and this may explain the lack of emphasis expressed to his treating doctors particularly in relation to the reported fall. Nevertheless, I believe Mr Ram is genuine and I am satisfied that his lower back condition is related to his employment.”[81]
[81] Reply, p 84.
The report contained no mention of any complaints of neck pain made by the appellant to Dr Powell.
A further report was provided from Dr Powell on 29 January 2021.[82] This report supported the surgery of L4/L5 discectomy and decompression of the L5 roots. Upon examination and after taking a history from the appellant, Dr Powell made no reference to any complaint of pain in the neck or upper limbs made by the appellant.
[82] Reply, pp 88–97.
On 15 February 2022 Dr Powell provided further report.[83] In relation to the appellant’s neck and upper limb pain, Dr Powell opined that the appellant was suffering from some underlying multilevel cervical spondylosis and rotator cuff pathology.[84] In terms of causation, Dr Powell noted that he had seen the appellant on two prior occasions, that he regarded him as a straightforward person who was not inclined to exaggeration, and that the appellant had never made any mention of any injury to his neck or right shoulder. Dr Powell concluded that there was insufficient evidence to find that the appellant’s employment was a substantial contributing factor to the neck or shoulder injury, either primarily or by way of aggravation of a pre-existing degenerative pathology.[85]
[83] Reply, pp 98–107.
[84] Reply, p 102.
[85] Reply, p 105.

THE MEMBER’S DETERMINATION AND REASONS

The Member identified that the issue in the proceedings was whether or not the appellant’s employment with the respondent was causally connected to the current symptomatology in his cervical spine, thereby giving rise to an entitlement to medical expenses for the proposed C5/C6 anterior cervical discectomy and fusion.[86]
[86] Reasons, [2], [3].
The Member made reference to the application by counsel for the appellant to be called to give oral evidence. The Member declined that application on the basis that there was no suggestion that the proposed oral evidence was required to address any omission or ambiguity in the appellant’s written statement.[87] The Member accepted the submission of counsel for the respondent that it was unnecessary to cross examine the appellant before making a submission that the appellant's evidence was unreliable, relying on Whelan v Stowe Australia Pty Limited.[88] Whilst the Member held that a finding that a witness is untruthful should generally only be made where the witness has been cross examined so that he has the opportunity to defend himself, the Member concluded that the appellant’s truthfulness was not under consideration, but rather the reliability of his recollection.[89]
[87] Reasons, [9]–[10].
[88] [2021] NSWPICPD 36 (Whelan), [134].
[89] Reasons, [86].
The Member summarised the submissions of each of the parties. The respondent submitted that the absence of any reference in the contemporaneous records about neck pain or a history of neck injury is inconsistent with the appellant’s written statement in which he asserted that he had injured his neck during the course of his employment with the respondent. The Member summarised the appellant’s case as a contention that the appellant’s account of the onset of his neck pain should be accepted because there was no evidence that contradicted the appellant’s assertion.[90]
[90] Reasons, [13], [15].
The Member identified the relevant sections of the appellant’s signed statement dated 21 March 2022 in which the appellant contended that he had injured his neck, amongst other body parts, by virtue of the hard labour duties that he was required to carry out as well as the slip and fall on 21 June 2019. The Member noted that the appellant’s statement alleged that his whole body was in pain and that he told Dr Darwish exactly what happened and what his injuries were.
Thereafter, the Member analysed the various reports of Dr Bodel, Dr Darwish and Dr Powell. In doing so, the Member extracted relevant parts of those reports. The Member noted the contents of the appellant’s Injury Claim Form in which the only identified injuries were to the appellant’s back, hip and legs.[91] The Member then undertook an analysis of the clinical notes of Busby First Care Medical Centre and extracted various passages from those clinical notes. In so doing, the Member identified that it was not until August 2021 that the clinical notes made any reference to the appellant complaining of neck pain.[92] The Member referred back to the reports of Dr Darwish noting that the first report of any neck pain was in his report of 5 July 2021.
[91] Reasons, [53], [54].
[92] Reasons, [55]–[72].
The Member then identified the controversy between the medical evidence, noting that Dr Powell took the view that the appellant’s neck pain was explained by multi-level degenerative changes in the cervical spine. On the other hand, Dr Darwish thought that the degenerative changes had been exacerbated or aggravated by the nature of the appellant's work with the respondent and the fall in June 2019.
The Member referred to the authorities that hold that the histories contained in medico-legal reports should be treated with caution: Fitzgibbon v The Waterways Authority[93] and Davis v Council of the City of Wagga Wagga.[94]
[93] [2003] NSWCA 294 (Fitzgibbon).
[94] [2004] NSWCA 34 (Davis).
The Member also cited Azzopardi v Tasman UEB Industries Limited[95] as authority for the proposition that the absence of relatively contemporaneous complaints of symptoms in a document or medical record makes it more difficult to be confident of causal nexus.[96]
[95] (1985) 4 NSWLR 139 (Azzopardi).
[96] Reasons, [79].
The Member found that it was difficult to reconcile the absence of any record of neck pain over a period of some two years in any of the clinical notes or reports recorded by medical practitioners who had examined the appellant, with the appellant’s evidence.[97]
[97] Reasons, [81].
The Member addressed the issue of the X-ray of the cervical spine on 19 August 2019 and the CT scan of the cervical spine on 26 August 2019 by noting that there was no evidence as to why the chiropractor had referred the appellant for these radiological images, and further, that there was nothing in the clinical notes of the appellant’s GP which referred to any neck symptoms over the next two years.[98] The Member found that it would be surprising if the appellant did have neck pain, that he had inadvertently omitted to make reference to it when being examined by Drs Bodel or Powell between 2019 and 2021.[99]
[98] Reasons, [82].
[99] Reasons, [84].
The Member concluded that the appellant had not proven that he sustained a cervical injury arising out of or in the course of his employment, relying on the absence of any recorded complaint of neck injury in either the clinical medical records or in the appellant’s Injury Claim Form. Further, the Member found that the absence of any complaint over a period of two years suggested the absence of a causal nexus between any injury and the need for the proposed surgery. On that basis, the Member made an award for the respondent.[100]
[100] Reasons, [88], [90].

SUBMISSIONS

In relation to Ground One, the appellant contends that the Member erred in failing to exercise his discretion in favour of allowing the appellant to give oral evidence. The appellant argued that the proposition posited at [81] of the reasons, being that the Member found it difficult to reconcile the absence of any record of a complaint of neck pain over a period of some two years with the appellant’s evidence that he did experience neck symptoms at the time of the frank injury, is a proposition that should have been put to the appellant orally, to have his reliability as a witness tested.[101]
[101] Appellant's submissions on Appeal Against Decision of Member dated 14 December 2022 (appeal submissions), [11]–[12].
In Ground Two, the appellant submits that the Member erred in law by rejecting the written evidence of the appellant without the reasons for rejecting that evidence being put to him. The appellant submits that there is no difference between the concepts of credibility and reliability. The appellant refers to statements made by Dr Powell in his reports of 14 October 2019, 21 November 2019 and 29 January 2021 that the appellant was compliant and cooperative with no suggestion of overreaction or exaggeration. The appellant argues that given that the appellant's evidence was unchallenged, the Member should have accepted his evidence in relation to his assertion that he injured his neck during the course of his employment with the respondent.
The appellant relies on the decision in Cruceanu v Vix Technology (Aust) Limited[102] and Ali v Nationwide News Pty Limited[103] as authority for the proposition that where factual evidence is not cross examined upon, prima facie, it should be accepted.
[102] [2020] NSWCA 203.
[103] [2008] NSWCA 183 (Nationwide News).
In respect of the statement in Nationwide News, that unchallenged evidence ought not necessarily be accepted where there is a credible body of evidence of a substantial character in direct contradiction of the non-cross examined evidence, the appellant argues that there was no contradictory evidence of any alternative injury, incident or event that would account for the cervical spine pathology.
The appellant submits that if the Member had accepted the unchallenged written evidence of the appellant he would have found that the appellant started to suffer pain in his neck by reason of the nature of the heavy work with the respondent and the frank injury on 21 June 2019.
In Ground Three of the appeal, the appellant contends that the Member erred in conflating the absence of recorded complaints with the absence of complaints. The appellant argues that the Member should have accepted that the appellant told Dr Powell about his neck pain but Dr Powell did not record it. The appellant submits that the Member should not have rejected the unchallenged evidence of the appellant on this point and again submits that there was no competing or alternative cause of injury.
In Ground Four of the appeal, the appellant contends that the Member erred by concluding that there had been a significant lapse of time between the claimed date of injury and the appellant’s first complaints of neck pain. The appellant argues that in the appellant’s written statement, he states that he complained of neck pain to his manager in June 2019 and he was not challenged on that evidence. Further, the appellant referred to the fact that a cervical X-ray was undertaken on 19 August 2019 and a CT scan of the cervical spine on 26 August 2019 and submitted that this corroborated the appellant’s complaint of neck pain at or about that time.
The appellant’s further submissions on appeal make reference to the transcript. The appellant submits that the only way for the Member to have assessed the appellant’s credit would have been through oral evidence. The appellant argues that the Member failed to apply the rule that adverse credit inferences should not be made unless the witness was cross examined on the issue. The appellant submits that the Member erred by incorrectly differentiating reliability from credibility. The appellant’s submission is that those two concepts are synonymous.[104]
[104] Appellant’s further submissions on Appeal Against Decision of Member dated 19 January 2023 (further appeal submissions), [4], [6].
The respondent submits, in relation to Ground One, that the Member was correct to decline the application to call oral evidence from the appellant. It says that the discretion was correctly exercised due to the failure to comply with r 34 of the Personal Injury Commission Rules 2021 (the 2021 Rules) and Procedural Direction PIC3 – Documents and late documents.[105]
[105] Respondent’s submissions dated 20 January 2023 (respondent’s submissions), [2]–[13].
In relation to Ground Two, the respondent submits that the Commission was not obliged to accept the appellant’s evidence, even though he was not the subject of cross examination, because the appellant’s statement was contradicted by a credible body of substantial evidence. In that regard, the respondent relied on the decisions in Whelan and Nationwide News. The respondent submits that the Member provided clear reasoning for rejecting the appellant’s allegation of injury to the neck and submits that there was no error of law.[106]
[106] Respondent’s submissions, [14]–[20].
In relation to Ground Three, the respondent submits that the Member provided clear reasoning and did not engage in an error in relation to the absence of complaints.
In relation to Ground Four, the respondent submits that the Member engaged in a detailed analysis of the medical evidence and engaged in no error in finding that there was a significant lapse of time between the alleged date of injury and the appellant's complaints of neck pain.
In its submissions in reply to the appellant’s further submissions,[107] the respondent contends that the appellant proceeded with his case relying on the witness statement in its form and content, without any corroborative report from his treating doctors confirming that the appellant reported the neck symptoms to him as contended by the appellant in his statement.
[107] Respondent’s submissions in reply to the appellant’s further submissions, dated 6 February 2023.
The respondent submits that that it was open to counsel for the appellant to engage in a full rebuttal of the respondent’s submissions on the inconsistencies between the appellant’s statement and the medical evidence but largely elected not to do so.

CONSIDERATION

In order for the appeal to succeed, I must be persuaded that the Member was in error, as is required by s 352(5) of the 1998 Act. Further, I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Owston Nominees:[108]
“24. What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.”
[108] Owston Nominees, [24]–[25], [28].
I have considered the material before the Member in accordance with the principles in Owston Nominees.

Ground One: The Member erred in failing to exercise his discretion in favour of allowing the appellant to give oral evidence

I find no error in the decision of the Member to decline the application to call the appellant to give oral evidence.
When asked, counsel for the appellant advised that the oral evidence of the appellant would be as to the existence or otherwise of neck problems prior to the accepted injury, and the continuity of neck problems following that injury.[109] The Member advised that unless there was something truly specific that had been overlooked or that the appellant needed to elaborate on something, the Member would not grant leave to allow the oral evidence. Counsel for the appellant made no such submission.[110]
[109] Transcript of proceedings 7 November 2022 (T), 4.14–17.
[110] T 4.29–6.6.
The refusal of the Member to allow oral evidence was made on the ground that there was no contention put forward by counsel for the appellant, that the additional oral evidence was required to address any omission or ambiguity in his written statement. In the circumstances, that was a proper reason open and available to the Member and the decision did not engage in any error of law or fact.
The appellant’s argument is based on the contention that the appellant’s credit was called into question and accordingly, the appellant was entitled to be given the opportunity to be cross examined on his credit.[111]
[111] T 3.16–31.
This followed from the exchange during the hearing when counsel for the respondent was questioned by the Member as to whether he could accept his submissions that the appellant’s evidence was completely unreliable in circumstances where the respondent had opposed the application to call the appellant to be cross examined.[112]
[112] T 25.11–26.
Although, during the hearing, counsel for the respondent argued that the appellant’s credit was in issue,[113] when considered objectively, the argument being propounded by the respondent during the hearing was, in reality, that the preponderance of the documentary and medical evidence was contrary to the appellant’s assertion that he suffered an injury to his neck in 2019 as a result of his employment with the respondent. The respondent argued that the appellant ought not be accepted because of the lack of any corroborative evidence to support his claim and that the weight of the evidence was such that the Commission would not accept the appellant.[114] In that regard the respondent relied on the decision in Whelan.[115] There was no allegation that the appellant was being untruthful.
[113] T 34.33.
[114] T 6.6–10, 25.11–12.
[115] T 32.28–33.1.

In that circumstance, I take the view that the respondent’s argument was directed to the reliability of the appellant’s statement, not his credit as a witness.
I reject the appellant’s contention that credibility and reliability are synonymous.[116] They are not the same. Credibility is directed to a person’s truthfulness, including whether that person believes that they are telling the truth. On the other hand, the reliability of evidence is directed to the accuracy of the witness’s evidence. In that regard, the determination of whether evidence is accurate involves a consideration of a number of factors including whether the witness has accurately observed or recalled the matter in issue. It follows therefore that a person, against whom an adverse credit finding has been made cannot give reliable evidence on the point on which he/she is found to lack credit (or sometimes generally). However, it does not follow that the absence of an adverse credit finding means that the Commission is bound to accept that witness’s evidence. Put simply, a credible witness may give unreliable evidence. Further, some parts of a witness's evidence can be rejected and other parts accepted, depending on the nature of the reliability finding.
[116] Appellant’s further appeal submissions, [4].
As it was, there was no finding made by the Member that the appellant lacked credit. The Member adopted the approach that it was not the truthfulness of the appellant but the reliability of his recollection that was at issue.[117]
[117] Reasons, [86].
It is not necessary for me to address the respondent’s submissions on this appeal point in detail because no part of the Member’s decision to decline the application to call oral evidence from the appellant was based upon a failure to comply with r 34 of the 2021 Rules or to adhere to Procedural Direction PIC 3. The Member’s decision on this point was limited to the fact that there was no suggestion that the appellant, if called, would give additional or different evidence from that contained in his written statement. In my view, the statement made by the Member during the hearing that calling every witness where there was a credit issue would undermine the Commission’s procedure was a general remark, not one specific to the 2021 Rules or Procedural Directions. Having said that, I accept that the Rules and Procedural Directions about the manner in which proceedings are heard and determined in the Commission may have informed that general remark.
I find that Ground One has not been made out.

Ground Two: The Member erred in law by rejecting the written evidence of the appellant without the reasons for rejecting that evidence being put to him

The appellant’s submissions in relation to this ground bear much similarity with those made in respect of Ground One.
For the reasons set out at paragraphs [93] to [94] above, I reject the submission that there is no difference between the concepts of credibility and reliability.
Further, I reject the contention that the Member engaged in an error of law by finding that the appellant’s version of events ought not be accepted without reasons being put to him. The principle in Nationwide News at [112] is clear. It relies on the earlier decision of Bulstrode v Trimble[118] where Newton J held that it was plainly not the law that a judge or jury was bound to accept unchallenged evidence where there was substantial evidence to the contrary.
[118] [1970] V.R. 840, 849.
This principle has been adopted in this Commission in Whelan and, as noted above, the respondent made it clear during the hearing that this principle was being relied upon in its case.[119]
[119] T 32.28–33.24.
True it is that Dr Powell opined that the appellant did not engage in exaggeration during the course of his examinations. However, as stated above, it is not the truthfulness of the appellant that was in issue, it was the reliability of his recollection.
The exercise in which the Member engaged was not attended by any error. The Member considered all of the material he had before him and weighed that against the appellant’s statement that he injured his neck during the course of his employment with the respondent and that he made contemporaneous complaints to that effect.
The materials relied upon by the Member included:
(a)    the Worker’s Injury Claim Form dated 13 November 2019 which contained no reference to any injury to the neck;[120]
(b)    the clinical records of Busby First Care Medical Centre in which there were no complaints of neck pain until 10 August 2021 but which did include the referral for the X-ray and CT scan of the cervical spine in August 2019;[121]
(c)    the medical reports of Dr Darwish, the appellant’s treating neurosurgeon, in which the first complaint of neck pain was recorded in his report of 5 July 2021;[122]
(d)    the medical reports of Dr Bodel, the orthopaedic surgeon qualified by the appellant, who first saw the appellant on 29 September 2020 and made reports concluding with his report dated 20 July 2022.[123] Significantly, the Member referred to the fact that Dr Bodel had gone through all of the GP notes and had seen no reference to any complaints of neck pain including in relation to the cervical X-ray and CT scan. The Member extracted that part of Dr Bodel’s report in which he stated that:
“To answer your specific question, therefore I would indicate that the above information does not assist in causally linking an injury to the neck to the ‘frank incident’ on 21 June 2019. It is probable that it is connected but there is no contemporaneous documentation which makes that link.”
The Member noted that Dr Bodel expressed the opinion that the appellant could have injured is neck in the fall of June 2019,[124] and
(e)    the reports of Dr Powell, orthopaedic surgeon qualified by the insurer who provided reports dated 14 October 2019,[125] 21 November 2019[126] and 29 January 2021,[127] none of which contained any reference to complaints made by the appellant in respect of his neck. The Member noted that in his report of 15 February 2022,[128] Dr Powell concluded that there was insufficient evidence to find that the appellant’s employment was a substantial contributing factor to the neck or shoulder injury either primarily or by way of aggravation of a pre-existing degenerative pathology.[129]
[120] ARD, p 7; reasons, [53], [54].
[121] ARD, pp 236–406; reply pp, 6–70; reasons, [35], [55]–[72].
[122] ARD, pp 173–195; reasons [38]–[44], [73]–[75].
[123] ARD, pp 50–69.
[124] Reasons, [26]–[37].
[125] Reply, pp 71–81.
[126] Reply, p 84.
[127] Reply, pp 88–97.
[128] Reply, p 105.
[129] Reasons, [45]–[52].
As such, when the Member concluded that he preferred the evidence of Dr Powell (because it was more consistent with the entirety of the medical record) over that of the appellant’s recollection, that was a conclusion that was open and available to the Member. There was no error of fact or law in the Member’s analysis, consideration or reasoning which would engage appellate intervention.
Further, I reject the appellant’s submission that there was no contradictory evidence of any alternative injury, incident or event that would account for the cervical spine pathology. In his report dated 15 February 2022,[130] Dr Powell opined that the cause of the appellant’s cervical symptoms was underlying multi-level cervical spondylosis, and in his respect of his upper limb symptoms that these were the result of rotator cuff pathology.[131]
[130] Reply, pp 98–107.
[131] Reply, p 102.
This is supported by the X-ray report dated 19 August 2019 which reported a narrowing of the C5/6 disc space, consistent with disc degeneration;[132] and the CT scan dated 26 August 2019 which found early spondylitic changes at the C5/C6 level.[133]
[132] ARD, p 26; reply, p 1.
[133] ARD, pp 27, 219, 295; reply, p 2.
Dr Darwish agreed with the diagnosis of degenerative change to explain the neck symptoms but added that he thought it had been aggravated by the nature of the appellant’s work with the respondent and the fall in June 2019.
For these reasons, I find that Ground Two has not been made out.

Ground Three: The Member erred in conflating the absence of recorded complaints with the absence of complaints

This ground is again directed to an alleged error on the part of the Member in not accepting the unchallenged evidence of the appellant.
The appellant’s contention is that the Member should have accepted the appellant’s evidence that he told his manager about neck pain on 21 June 2019. However, the appellant’s statement does not say that in terms. Rather, the appellant’s statement says that he experienced pain in his whole back and neck after 5–6 months of hard labour and only saw his doctor.[134] The statement says that the appellant injured his back, neck, right hip and right ankle and heel in the fall on 21 June 2019 and it states that he “always told my manager I was in a lot of pain”.[135] The statement says he saw his doctors at that time.[136] The appellant says that after doing some unloading on 26 July 2019, his whole back, neck and shoulders were sore and painful.[137] The statement says that he requested leave but that was rejected by the manager.[138]
[134] ARD, p 1, [5].
[135] ARD, p 1, [7].
[136] ARD, p 2, [8].
[137] ARD, p 2, [14].
[138] ARD, pp 2–3, [15]–[16].
The appellant’s contention is that the Member should have accepted the appellant’s evidence that he told his doctors about his neck injury. However, the appellant’s statement says that he told Dr Gounder “exactly what happened” and she completed his workers compensation certificate.[139]
[139] ARD, p 3, [20].
The appellant’s statement says that he told Dr Darwish “exactly what happened”.[140]
[140] ARD, p 3, [22].
Finally, the appellant’s statement says that he told Dr Powell “exactly what happened and what injuries I had, including my neck …”.[141]
[141] ARD, p 4, [27].
The statement was prepared for the purposes of an application where the issue in dispute was the causal link between the appellant’s employment with the respondent and the onset of his neck symptomatology. Accordingly, in respect of the statements about what the appellant told Dr Gounder and Dr Darwish, the appellant saying that he told them “exactly what happened” does not of itself convey that he explicitly told them of his neck injury and/or neck pain. In relation to the appellant’s statement as to what he told Dr Powell, he does say that he told him about an injury to his neck but does not say in which of the consultations he said this. The Member balanced the appellant’s statement against what those medical practitioners recorded in their clinical notes and reports, in his reasoning.
In conducting his analysis of the contemporaneous evidence, the Member noted that the Worker’s Injury Claim Form dated 13 November 2019 referred only to an injury to the back, hip and legs.[142]
[142] ARD, p 7; reasons, [53]–[54].
The Member carefully considered the content of the clinical records of the appellant’s GP in respect of those consultations where complaints of pain were made. That analysis commences with the consultation with Dr Gounder on 20 May 2019 in which she recorded the appellant’s complaint of pains in his lower back after lifting heavy weights for more than a week.[143] The Member then went through the clinical records through to 2 September 2020 in which there were no complaints of neck pain.[144] The Member set out that there were no complaints of neck pain until 10 August 2021.[145]
[143] Reasons, [55].
[144] Reasons, [56]–[71].
[145] Reasons, [72].
Similarly, the Member did a thorough analysis of the reports of Dr Darwish and Dr Powell, as described in paragraphs [103(c)] and [103(e)] respectively above.
The Member referred to the principles in Fitzgibbon and Davis about treating medical records with caution.[146] He also referred to Azzopardi for the proposition that the presence or absence of a relatively contemporaneous complaint of symptoms has generally been regarded as an important measure of the occurrence and the nature of the injury. Further, the Member referred to Coote v Kelly; Northam v Kelly[147] to the effect that there is a logical underpinning for the reluctance to accept the evidence of a witness where there is inconsistency between that evidence and contemporaneous documentary records, even if the witness’s evidence is not otherwise impugned.
[146] Reasons, [78].
[147] [2016] NSWSC 1447, [100]–[102].
I find that the Member correctly informed himself of the appropriate legal principles and tests; that he conducted a proper analysis of the contemporaneous records. I find no error in fact or law in the Member not accepting the appellant’s evidence but instead preferring the version of events laid out in the contemporaneous documentation.
For the reasons set out in paragraph [105] above, I reject the appellant’s submission that the Member should not have found that there was no competing or alternative cause of injury.
I find that Ground Three has not been made out.

Ground Four: The Member erred in fact by concluding that there was a significant lapse of time between the claimed date of injury and the appellant’s first complaints of neck pain

The appellant alleges that the Member was in error in the findings he made in paragraph [88] of the reasons, and in particular, the finding that there was an absence of a complaint over a period of almost two years.
The appellant alleges that the Member erred in not accepting the unchallenged evidence of the appellant that he complained of neck pain to his manager in June 2019 and that the Member ought to have also taken into account the fact that the appellant was referred for a cervical X-ray and cervical CT scan in August 2019, as this is corroborative of the appellant making a complaint of neck pain at or about that time.
In relation to the appellant’s statement concerning what he said to his manager, I refer to paragraph [110] above.
In relation to the radiological investigations of the cervical spine undertaken in August 2019 the Member did take them into account but noted that there was no evidence as to why the chiropractor had referred the appellant for these radiological images, and also noted that there was no reference at all in the clinical notes of the appellant’s treating doctor which referred to any neck symptoms prior to that referral nor were there any complaints of neck pain recorded over the next two years.[148]
[148] Reasons, [82].
As set out above, the Member engaged in the consideration of the Worker’s Injury Claim Form and all of the contemporaneous clinical notes and reports. The factual finding that there had been an absence of a complaint of neck pain over a period of almost two years was one which was available on the materials and indeed, I find that the preponderance of the evidence supported the Member’s finding in this regard.

CONCLUSION

I find that all grounds of the appeal are not made out.
Accordingly, the appeal is dismissed.

DECISION

The Certificate of Determination dated 18 November 2022 is confirmed.

Kylie Nomchong SC

ACTING DEPUTY PRESIDENT

8 January 2024