Rutter v Break Thru People Solutions
[2023] NSWPICPD 17
•14 April 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Rutter v Break Thru People Solutions [2023] NSWPICPD 17 |
APPELLANT: | Catherine Rutter |
RESPONDENT: | Break Thru People Solutions |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W1682/22 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 14 April 2023 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 13 May 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987 – proposed surgery – period of time between injury and reporting of lumbar spine symptoms – caution to use of clinical notes – adequacy of reasons – section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 78 of the Personal Injury Commission Rules 2021 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr G Horan, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr T Grimes, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr P Sweeney |
DATE OF Member’s DECISION: | 13 May 2022 |
INTRODUCTION AND BACKGROUND FACTS
This is an appeal from a Certificate of Determination of the Personal Injury Commission Workers Compensation Division issued on 13 May 2022.
The appellant, Catherine Rutter, was employed by the respondent, Break Thru People Solutions, as a bus driver/carer of disabled children.
On 10 May 2018 the appellant was involved in an incident whilst endeavouring to assist a large female patient into the van that she was driving. In her statement dated 8 July 2021 she described the events in the following terms:
“As the patient was on the stepping ladder about to get in the van, the patient’s legs suddenly gave way and [she] fell backwards. In an attempt to prevent the patient falling onto the ground, I tried to catch her and sustained injury to my neck, lower back and right shoulder.”[1]
[1] Application to Resolve a Dispute (ARD), p 1.
The respondent accepted the claim with respect to the appellant’s right shoulder and the appellant was paid compensation. She had surgery for right rotator cuff repair on 31January 2019 and again on 5September 2019.
In June 2020 the appellant was referred to Dr Charles New, orthopaedic and spinal surgeon. After some additional investigations, Dr New recommended surgery to the lumbar spine.
The respondent declined to fund the proposed surgery on the basis that the incident of 10May 2018 did not result in any injury to the lumbar spine. It followed the proposed surgery was not reasonably necessary as a result of an injury in the course of employment.
The contest was therefore whether the appellant was entitled to the cost of the proposed surgery. The Member found that the appellant had not established that she suffered an injury to her low back on 10 May 2018 and in the circumstances the insurer was not liable for the cost of the surgery.
It is to be noted that the initial Application to Resolve a Dispute included a claim by the appellant with respect to the cervical spine. That claim was not pursued and was deleted by the Member.
STATEMENT OF REASONS AND FINDINGS
In the following summary the references are to page references of the transcribed oral determination.
The Member heard submissions on 2 May 2022. He delivered oral reasons on 10 May 2022, confirmed in a written Certificate of Determination dated 13 May 2022.
The Member identified the proceedings as being for the cost of L4/5 and L5/S1 laminectomy and neurolysis proposed by Dr New.[2]
[2] Transcript of oral decision of 10 May 2022 (T), T2.18.
He summarised the appellant’s evidence and the clinical notes of the treating practitioners. He said that he did not intend to provide a comprehensive survey of the appellant’s history, evidence or the clinical history.[3] Rather he set out the salient points.
[3] T 4.8.
In June 2020, the appellant was referred to Dr New. Dr New arranged for a “battery of investigations including an MRI Scan of the lumbar spine”.[4] As a result of those investigations, Dr New recommended surgery to both the back and the neck.
[4] T 4.30.
The appellant said that she wished to undergo that surgery as soon as possible. She said in her statement evidence that she experienced difficulty washing her hair and fixing her bra strap because of neck and back pain. The Member recorded that the appellant said that she complained to Dr Abbas, a general practitioner at the HealthSmart Medical Centre, on 14 June 2018 of ongoing neck pain and that she saw Dr Abbas on 28 June 2018 about neck, shoulder and back pain. The Member quoted the appellant as having told the doctor that she was experiencing pain in both sites.
The appellant had attended the HealthSmart Medical Centre at Penrith for many years before her injury. The notes from that practice contained several references to neck pain prior to the injury commencing, as early as 29 July 2013. The clinical records included x-rays which showed degenerative spondylosis. The appellant was prescribed physiotherapy and analgesic and Dr Yi recorded that she had osteoarthritis.[5]
[5] T 6.15–20.
The injury on 10 May 2018 was recorded in the clinical notes as:
“Hurt her R shoulder today at work while preventing a client from falling who is about 100kg.”[6]
[6] ARD, p 110.
The appellant was referred for imaging of the right shoulder and prescribed Naprosyn. She was given a Workers Compensation Certificate stating injury to her right shoulder at work on 10 May 2018.
On 28 June 2018, the appellant saw Dr Abbas. As to this consultation the Member says:
“On 28 June 2018, [the appellant] saw Dr Abbas again complaining of anxiety. She also complained of right shoulder pain and pain on the left side, that is the left shoulder, which had come on in the last six weeks. Dr Abbas also recorded the following at that consultation under the heading Musculoskeletal:
‘Neck pain. Back pain. Bilateral shoulder pain. Bilateral hip pain. Bilateral knee pain. Right ankle pain. No foot pain. No painful toes. No injury.’”[7]
[7] T 7.7–12. See also ARD, p 112.
The Member recorded a further history of reference to the back on 19 November 2018, when the appellant “hurt left side of back in bus”.[8]
[8] T 7.31.
The Member referred to a further reference to back pain on 17 August 2021 as a reference to left sided back pain.[9]
[9] T 11.10.
Dr New’s history in his report dated 26 June 2020 was:
“This 60 year old woman used to work for Breakthrough Disability Care as a Support Worker and allegedly injured herself on 10th May 2018. She states that she was assisting a Down Syndrome patient who weighed 100 kg who slipped and fell and she had to catch the patient. In that incident she injured her neck, shoulder and lumbar spine.”[10]
[10] ARD, p 12, T8.33.
Dr New was noted to have recorded that the appellant said that since the time of injury she had suffered from “neck and back pain with right arm and right leg pain.”[11] Dr New said that the MRI demonstrated a broad based L5/S1 disc protrusion. Dr New’s opinion was that there was a relationship between the injury of 10 May 2018 and the condition to the back.
[11] T 9.10.
The Member recorded that Dr Casikar, neurosurgeon qualified for the respondent, had concluded that the appellant probably suffered multiple injuries in the incident of 10 May 2018 and that the effects of the shoulder injury were continuing. However, Dr Casikar “argued that the [appellant’s] back and neck were soft tissue injuries and were not the cause of her problem at the time that he saw her, some 2 years after the injury. He also thought that Dr New’s treatment was not reasonably necessary as a result of the injury”.[12]
[12] T 10.6–14.
The Member noted that Dr Giblin, an orthopaedic surgeon qualified for the appellant, appeared to relate the appellant’s symptomatology to the work injury.[13]
[13] T 10.20.
The Member dealt with the concluding words “no injury” after the heading “Musculoskeletal” in the entry in the clinical notes dated 28 June 2018 (see [18] above) as follows:
“Whatever construction is placed on those words, it is difficult to accept the conclusion that they do not apply to the entirety of the sentence to which he attaches the ‘no injury’ or, more accurately, the entirety of the paragraph to which he attaches the words ‘no injury’.”[14]
[14] T 10.29–34.
The alternative construction put by counsel for the appellant, that the words may have related to “no painful toes”, was regarded by the Member as generating “considerable doubt”.[15] The Member found support for his rejection of the “alternative construction” in the manner in which the Health Smart Medical Practice recorded its history of shoulder pain. He said that there was no reference “to many of the conditions referred to in this particular note.”
[15] T 11.4.
The Member said:
“The other reference to back pain is on the 17 August 2021. That is a reference to left sided back pain. It appears to relate to a recent event as the [appellant] was referred to x-rays for her ribs, fractured ribs. At that time the radiology confirmed rib fractures. Certainly, no investigations were ordered of the [appellant’s] back at that time.”[16]
[16] T 11.9–15.
Importantly, the Member says this:
“Thus, on my reading of the two years of clinical notes, or the history in the clinical notes, there are no references whatsoever to back pain or sciatica arising from the work injury of the 10 May 2018.
Indeed, there is no clear history of such [an] injury until the [appellant] sees Dr New some two years after the event. The certificates issued by the various medical practitioners, who have treated the [appellant] up to that time, as far as I can gather, do not refer at all to the lumbar spine. They appear to largely, probably exclusively, refer to the [appellant’s] right shoulder.”[17]
[17] T 11.16–26.
Having directed himself that caution needed to be exercised when considering and reaching conclusions on the basis of the histories contained in clinical notes and in medical reports, the Member set out his dispositive findings at page 12:
“… when there is a lengthy gap between a work incident and the first record of complaints resulting from [the] injury, the evidence must be weighed against the [appellant’s] evidence and, indeed, the other evidence in the case. Here the gap is a period of probably two years. The unreliability of memory over such a time span is notorious. In this case there are multiple references from multiple doctors who make no mention of back pain or sciatica associated with the subject injury over that two year period. The opinion of the medical practitioners at the Healthsmart medical centre as far as it can be gleaned from medical certificates is that the [appellant] suffered an injury to her right shoulder in the incident.
Even should I be wrong in my characterisation of the two notes to which I was referred by Mr Horan [counsel for the appellant] they are, at best, highly ambiguous. Those entries occur many weeks after the injury. They are inconsistent with a causal nexus between the incident and a back injury. It was open to the [appellant] to cure the ambiguity by obtaining opinion evidence from the medical practice. The failure to do so must be weighed with the other factors in assessing the probabilities.”[18]
[18] T 12.11–32.
In a concluding passage at page 13, the Member said:
“On balance, however, given the long interval between injury and unequivocal complaint of back pain, I am not persuaded that the evidence establishes that the [appellant] suffered an injury to her low back on 10 May 2018. Her evidence is not consistent with the clinical history and not reliable.”[19]
[19] T 13.12–17.
CERTIFICATE OF DETERMINATION
The Certificate of Determination issued on 13 May 2022 provided as follows:
“1. Amend the Application to Resolve a Dispute to delete references to cervical spine wherever it appears.
2. Find that the [appellant] has not established on the balance of probabilities that she suffered an injury to her lumbar spine on 10 May 2018.
3. The [appellant] has not proven that the need for lumbar spinal surgery proposed by Dr New results from the incident of 10 May 2018.
4. Award for the respondent.”
GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal:
“(a) the Member erred in finding there had been a long interval between injury and unequivocal complaint of back pain;
(b) the Member erred in his use of the clinical notes and did not exercise the caution he had noted should be exercised [when] dealing with histories in clinical notes and failed to address [the appellant’s] submission;
(c) the Member erred in failing to provide adequate, proper or sufficient reasons as to the evidence of Dr New, and erred in giving no adequate, proper or sufficient reasons for his apparent rejection of the expert medical evidence of Dr New.”
ON THE PAPERS
The parties submit that the appeal can be dealt with “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 submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied and intend to deal with the matter accordingly.
THRESHOLD MATTERS
The parties agree that the appeal was lodged within 28 days of the decision dated 10 May 2022.
The appellant claims an amount in the order of $20,000 with respect to the surgery. The respondent concedes that the appeal would exceed 20% of the decision appealed against, as no compensation was awarded.
The appeal meets the monetary threshold stipulated by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Northern NSW Local Health Network v Heggie,[20] Sackville AJA said:
[20] [2013] NSWCA 255; 12 DDCR 95.
“71. … as Roche DP pointed out in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, at [20], the observations of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) need to be borne in mind, particularly (I would add) where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline. Allsop J said, in relation to the application of the principle in Warren v Coombes, (at [28]) that:
in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.
72. A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17, 161 CLR 513, at 518 to 519, per Mason and Deane JJ.”
DISCUSSION
Ground One: The Member erred in finding there had been a long interval between injury and unequivocal complaint of back pain
Appellant’s submissions
The appellant makes general submissions in paragraphs [9]–[24] in support of the appeal overall. I summarise the general submissions in the following paragraphs.
The appellant points out that the MRI dated 22 July 2020 identified a broad based L5/S1 foraminal disc protrusion in contact with the under surface of the L5 nerve root causing moderate grade L5/S1 foraminal stenosis.
Dr New consulted with the appellant on at least four occasions between 25 June 2020 and February 2021. In the report of 25 June 2020 to Dr Abbas, Dr New provided an accurate description of the accident and stated that the appellant had suffered from (relevantly) back pain with right arm and right leg pain since the accident.
It was a significant part of the appellant’s case that Dr New obtained a history of no previous episodes of back symptoms or back pain. The appellant submitted to the Member that the history of an absence of back complaints before the accident was one of the most significant assumptions relied upon by Dr New in providing his opinion that there was a causal nexus between the back condition and the accident on 10 May 2018. The clinical note from the general practitioner included a complaint to Dr Abbas during the consultation on 28 June 2018 of widespread musculoskeletal pain including back pain. This note supported and corroborated the appellant’s evidence and Dr New’s factual assumption of back pain since the accident.
The appellant submits Dr New was reliant on a history of no previous back symptoms. There were five bases or reasons for Dr New supporting a causal nexus between the accident and the back condition which resulted in radicular injury and canal sciatica:
“firstly, lumbar condition as disclosed on MRI scan findings important (disc protrusion contacting R L5 nerve root); secondly history of no previous low back pain or sciatica; thirdly, that the [appellant] was holding down a full time job prior to the accident on 10 May 2018 when injured; fourthly, the mechanism of injury was consistent with the injury; and fifthly, the active L5 radiculopathy as demonstrated on electrophysiological testing was important; and thus the work accident was the main contributing factor to the lumbar condition, and Dr New disagreed with the insurer’s position that this was a purely degenerative process.”[21]
[21] Appellant’s submissions, [19].
The appellant submitted that the clinical note of 28 June 2018 by the GP recording “back pain” was consistent with her evidence and the history provided to and relied upon by Dr New. The appellant’s ultimate submission about the clinical notes was that the entry by Dr Abbas of 28 June 2018 of “back pain” corroborated the appellant’s evidence and supported the assumptions relied upon by Dr New in providing his opinion that there was a causal nexus between the back condition and the accident of 10 May 2018.
The appellant submits in support of Ground One:
“the Member erred in finding there had been a long interval between injury and unequivocal complaint of back pain. The evidence was the interval was some 7 weeks between the work accident on 10 May 2018 and the complaint to the general practitioner Dr Abbas on 28 June 2018 of back pain. The Member had in mind a much longer period of time … of years rather than weeks, and was in error in making this finding. It is factually incorrect and erroneous.”[22]
[22] Appellant’s submissions, [25].
Respondent’s submissions
The respondent directs attention to the jurisdiction under s 352(5) of the 1998 Act and to the decision of Roche DP in Raulston v Toll Pty Limited.[23] The respondent’s submission is that Ground One fails to identify any error of fact, law or discretion that affected the Member’s decision as required by s 352(5).
[23] [2011] NSWWCCPD 25, [17]–[31].
There is a lengthy quotation from Whiteley Muir & Zwanenberg Limited v Kerr.[24]
[24] (1966) 39 ALJR 505, 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Limited [1996] HCA 140; 140 ALR 227).
There is then a further quotation from Allsop J (as his Honour then was) in Branir Pty Limited v Owston Nominees (No 2) Pty Limited.[25]
[25] [2001] FCA 1833.
The respondent then submits:
“9. It is clear on reading page 10.25 of the transcript of the Member’s decision, that he made a finding of fact that this clinical note did not record back symptoms.
10. The Member’s decision was a finding of fact open to him on the available evidence and clearly not ‘wrong’.”
Consideration
In my view the appellant has failed to demonstrate error on the part of the Member. The contentious clinical note of 28 June 2018 was fully considered by the Member who reached the conclusion that the reference to back pain in that note was not sufficient to persuade him that it was a more or less contemporaneous record of back pain caused by the incident of 10 May 2018. I do not disagree with the Member’s analysis.
The Member’s conclusion that “there are no references whatsoever to back pain or sciatica arising from the work injury of the 10 May 2018”[26] (my emphasis), is correct. The Member’s point, so it seems to me, is that whatever significance may be attached to the words “back pain” in the clinical note of 28 June 2018, that did not suffice to connect the back pain then recorded to the work injury of 10 May 2018. That, in my view, was a conclusion well open to the Member.
[26] T 11.16–19.
It follows that on the evidence accepted by the Member, there was no record in the clinical notes of any attribution of back pain or sciatica arising from the work injury on 10 May 2018. The deficiency was the absence of any indication that the recorded “back pain” was the result of the injury on 10 May 2018.
The Member was correct in his observation that the appellant consulted with her general practitioner either in person or by telephone on multiple occasions between 10 May 2018 and the first consultation with Dr New on 25 June 2020. On none of those consultations was there any reference to back pain arising from the events of 10 May 2018.
Dr New accepted that in the incident the appellant injured her neck, shoulder and lumbar spine. But that was to do no more than accept what he was told at the consultation. The Member, contrary to the appellant’s statement evidence, concluded that the appellant did not injure her lumbar spine in the incident of 10 May 2018, notwithstanding that the note of 28 June 2018 included the words “back pain”.
In my view, the appellant has failed to demonstrate error of fact law or discretion. Ground One of the appeal is rejected.
Ground Two: The Member erred in his use of the clinical notes and did not exercise the caution he had noted should be exercised [when] dealing with histories in clinical notes and failed to address [the appellant’s] submission
Appellant’s submissions
The appellant submits that the clinical note of Dr Abbas of 28 June 2018 expressly states that the appellant complained of back pain. The Member appears to have expected that the clinical note should also have disclosed a complaint by the appellant of a nexus between the back pain that she reported to her GP and the accident. The appellant submits that is too high a bar and the nexus Dr New relied upon was a temporal relationship between the accident and the onset of back pain.
The appellant’s submission at the arbitration was that the clinical note dated 28 June 2018, the month following the work accident wherein she complained of back pain, broadly supported the history she had provided to Dr New as to the onset of back pain and that Dr New’s history taken from the appellant in that regard was broadly accurate. The Member did not address this submission at all in his reasons.
Respondent’s submissions
The respondent says that it is clear on reading the transcript at T 10.25 that the Member made a finding of fact that this clinical note did not record back symptoms as at 28 June 2018. At T 11.15, the Member made a finding of fact that there was no clear history of back pain until the appellant saw Dr New some two years after the event. The respondent further submits that it is clear on reading T 11.20 that the Member made a finding of fact that the certificate of capacity did not record back symptoms at all. The respondent notes that this finding has not been disputed by the appellant.
The appellant did not dispute the Member’s finding at T 12.25 that the clinical note relied on by the applicant were “weeks after the alleged injury”. The Member found as a fact that the clinical notes did not support the nexus between the incident and the back injury. The Member’s finding at T 12.30 that the appellant did not produce any medical report to clarify the ambiguity contained in the clinical notes is not disputed and has not been remedied even at the level of the appeal.
The submission is that there is no error of law fact or discretion in the approach taken by the Member when deciding this issue and the appeal on this ground should fail.
Consideration
The respondent’s submissions on this point should be accepted.
The Member set out at T 7.10 the note of the 28 June 2018 “under the heading Musculoskeletal: Neck pain, back pain. Bilateral shoulder pain. Bilateral hip pain. Bilateral knee pain, right ankle pain. No foot pain no painful toes. No injury.”
The Member was of the view that the concluding words to the note of 28 June 2018, “no injury”, referred to the whole of the sentence and the body parts mentioned. That was an available reading of the note.
The appellant’s complaints of pain in those parts of the body as recorded on 28 June 2018 could not be attributed to any particular incident or injury. This available reading of the note appears to me to be directly contrary to the appellant’s claim. The note is being read as saying the complaint of pain was not attributable to an injury. Such a reading of the note may not be shared by others but that does not mean it was in error. The passage quoted from Branir Pty Ltd v Owston Nominees (No 2)[27] at paragraph [40] makes plain that even were I to have a preference for a different view to that held by the Member that would not be sufficient to establish error.
[27] [2001] FCA 1833.
More importantly, the Member was correct when he says at T 11.15–20 that there were no references to back pain or sciatica arising from the work injury of 10 May 2018. He was also correct in his observation that the certificates by the various medical practitioners did not refer at all to the lumbar spine. They appear to largely and exclusively refer to the appellant’s right shoulder.[28]
[28] T 11.25.
The Member directed himself that he needed to exercise caution when considering the histories contained in clinical notes and medical reports. The appellant does not point to any matter from the Statement of Reasons indicative of a failure by the Member to proceed with the caution which he reminded himself was required. The Member was careful to record accurately what the notes said and to analyse their content having regard to the parties’ submissions.
I do not detect any error on the part of the Member in his utilisation of the clinical notes and medical reports. In my view the Member directed himself correctly, to exercise caution. There is no evidence that he failed to proceed accordingly.
Ground Three: The Member erred in failing to provide adequate, proper or sufficient reasons as to the evidence of Dr New, and erred in giving no adequate, proper or sufficient reasons for his apparent rejection of the expert medical evidence of Dr New
Appellant’s submissions
The appellant submits that the Member includes a recitation of the medical report evidence of Dr New, but did not otherwise deal with Dr New’s evidence which was the main medical evidence relied upon by the appellant from the treating specialist.
The Member did not address the submission by the appellant that the complaint of back pain to the GP on 28 June 2018 generally was in accordance with the history relied upon by Dr New that since the accident the appellant had suffered back pain. The nexus Dr New relied upon was a temporal relationship between the accident and the onset of back pain which the clinical notes broadly supported and corroborated. The Member gave no reasons for his apparent rejection of the medical evidence of Dr New.
Respondent’s submissions
The respondent refers to Liverpool City Council v Trovato,[29] Snow Confectionary Pty Limited v Askin[30] and to Kosovic v Star City Pty Limited,[31] being cases determined by the Workers Compensation Commission. The respondent also refers to Soulemezis v Dudley (Holdings) Pty Limited.[32]
[29] [2004] NSWWCCPD 15 (Trovato).
[30] [2004] NSWWCCPD 56.
[31] [2010] NSWWCCPD 107.
[32] (1987) 10 NSWLR 247.
The respondent does not refer to s 294(2) of the 1998 Act nor to the requirements of r 78 of the Personal Injury Commission Rules 2021 (the Rules).
The respondent submits that the Member rejected Dr New’s opinion because:
(a) there was no clear history of injury until the appellant saw Dr New some 2 years after the event;[33]
(b) Dr New did not appear to have a relevant history,[34] and
(c) the Member rejected the history obtained in Dr New’s reports on the basis of the long interval between injury and unequivocal complaint of back pain.[35]
[33] T 11.20.
[34] T 13.5.
[35] T 13.10.
His conclusion was that the “evidence is not consistent with clinical history and not reliable”.
Consideration
The difficulty the appellant faces is that the Member rejected the history she gave to Dr New. The Member found that the appellant did not sustain injury to the lumbar spine on 10 May 2018. The Member did not dispute Dr New’s medical diagnosis or therapeutic recommendations.
The submission that the Member merely recited Dr New’s medical reports but did not deal with Dr New’s evidence does not recognise that because the Member found there was no injury to the back that difficulty was insuperable.
Dr New’s view on causation could not be sustained in circumstances where the appellant had failed to persuade the Member that the low back symptoms were attributable to the events of 10 May 2018. The conclusion drawn at T 13.17 that the appellant’s evidence was not consistent with the clinical history and not reliable meant that the opinion as to causation expressed by Dr New (if indeed he expressed an opinion as to causation, as distinct from merely recording the history given to him by the appellant) could not be accepted.
The assertion that Dr New accepted a nexus between the accident and the onset of back pain could not be used to establish the appellant’s case on causation because the Member did not accept that the connection was made out.
In Trovato the Deputy President applied rule 73 of the Workers Compensation Commission Rules 2003 which is essentially in the same terms as the present rule 78(2). She said[36] “An Arbitrator need not set out lengthy written reasons to comply with the Act and the Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes.”
[36] [2004] NSWWCCPD 15 [57]
Furthermore, I am satisfied that the Member complied with s 294(2) of the 1998 Act and r 78 of the Rules. The requirement to provide reasons is an obligation with respect to the reasons for the determination (s 294(2) of the 1998 Act).
The requirement of r 78 is that the reasons for the ultimate determination be briefly stated.
The Member plainly referred to the evidence and made findings on the material question of fact, namely, whether or not the appellant’s symptoms in the low back in respect of which Dr New made the therapeutic recommendation were caused by the incident of 10 May 2018. In relying upon the clinical notes to reject the evidence of the appellant, he directed himself as to the correct authorities requiring caution when relying upon clinical notes[37] and demonstrated the reasoning process that he applied in reaching the conclusion adverse to the appellant.
[37] See T 12.1–10.
In my view, the reasons provided by the Member were adequate to explain to the appellant why her claim for the cost of the surgery had not prevailed.
I reject Ground Three of the appeal.
CONCLUSION
The appeal has not succeeded.
DECISION
The Certificate of Determination dated 13 May 2022 is confirmed.
Geoffrey Parker SC
Acting Deputy President
14 April 2023
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