Skoko v Charles Sturt University - [2024] NSWPICPD 59

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Skoko v Charles Sturt University [2024] NSWPICPD 59
APPELLANT:	Hazbo Skoko
RESPONDENT:	Charles Sturt University
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4873/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	12 September 2024
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Amended Certificate of Determination dated 11 October 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Causation, no causal link between stress and aggravation of lower digestive tract condition – fresh evidence on appeal not permitted – academic material without expert assistance not permitted – EMI (Australia) Limited v Bes [1970] 2 NSWR 238; Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190 applied – section 352 of the Workplace Injury Management and Workers Compensation Act1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Mr B Stringer, solicitor
Moray & Agnew Lawyers
DECISION UNDER APPEAL:	Skoko v Charles Sturt University [2023] NSWPIC 589
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	11 October 2023

INTRODUCTION

The appeal is from an Amended Certificate of Determination dated 11 October 2023.
The appellant, Mr Skoko, sustained injury to the right knee in the course of employment with the respondent, Charles Sturt University, on 28 August 2017. In this matter he claimed a 23% permanent impairment of the lower digestive tract as a condition consequential upon the original injury. The respondent disputed that claim.
The Commission made the following determination:
“The Commission determines:
1.     An award for the respondent for the claim made by the [appellant] that he has suffered a consequential condition affecting his lower digestive tract as a result of the injury to his right knee on 28 August 2017.
The Commission orders:
2.     The matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury:                 28 August 2017
Body Parts:right lower extremity (knee)
left lower extremity (knee) as a consequential condition
scarring (Temski)
Method of Assessment: whole person impairment
3.     The following documents are to be forwarded to the Medical Assessor:
(a)Application to Resolve a Dispute with attachments;
(b)Reply with attachments, and
(c)A copy of this Decision.”
The appellant challenges the award for the respondent.
The appellant was legally represented before the Member but represents himself on the appeal. The appellant has presented the substance of the appeal without technicality.
For the reasons that follow, the appeal is rejected. The determination of the Member is confirmed.

THE MEMBER’S STATEMENT OF REASONS

The Member, with the agreement of the parties, identified the issue in dispute as:
“whether the [appellant] has suffered a consequential condition affecting his lower digestive system as a result of the injury sustained on 28 August 2017.”[1]
[1] Skoko v Charles Sturt University [2023] NSWPIC 589 (reasons), [7].
The respondent accepted liability for the injury to the right knee.
On 4 June 2021, Member Beilby found a consequential injury to the left knee.
The appellant underwent total knee replacements on 20 June 2020 (right knee) and in July
2021 (left knee). On 14 December 2021 a revision procedure on the right knee was performed.
The appellant’s evidence was provided by statements dated 25 November 2020[2] and 30June 2023.[3] The Member noted that the appellant said that he had been diagnosed with ulcerative colitis (UC) in or around 2003 and that he was diagnosed with Crohn’s disease in or about 2018. He said:
“In his statement dated 30 June 2023, Mr Skoko states that in 2019 he was feeling so stressed and anxious about his injuries that it began to affect his physical state and mental health. He states that he reported this to Dr Wettstein, the specialist who has treated him for colitis and Crohn’s disease, and that Dr Wettstein confirmed that his condition was becoming worse.”[4]
[2] Application to Resolve a Dispute (ARD), p 1.
[3] ARD, p 31.
[4] Reasons, [14].
The Member summarised the evidence of Dr Vivekanandarajah, consultant gastroenterologist, and Dr Wettstein who took over the appellant’s treatment in 2015.
Dr Wettstein in his report dated 11 July 2022 noted that:
“Hazbo feels that his recent flare-up was aggravated by the psychosocial stressors and medical treatment related to his re-do knee surgery.”[5]
[5] ARD, p 292.
Dr Ghaly, a consultant gastroenterologist, in a report dated 9 February 2023, diagnosed Mr Skoko as having chronically active steroid dependent Crohn’s colitis.[6]
[6] ARD, p 300.
Orthopaedic specialist Dr Klar opined, in a report dated 25 November 2021:
“In my opinion, the stress created by the acrimonious manner in which [the workers compensation insurer has] approached Mr Skoko’s case has potentially caused exacerbations of his Crohn’s disease with a flare-up noted in 2019 requiring around 3 months of oral steroids to bring the flare under control. When he has more symptoms from his Crohn’s disease he requires more oral steroid which makes his osteoporosis worse. In my mind these factors are all linked and all likely to have played a role in what has transpired for the right knee replacement.”[7]
[7] ARD, p 290.
The psychologist, Dean Oxley, on 3 May 2022 found the appellant to be suffering moderate depression, extremely severe anxiety and severe stress on the Depression Anxiety and Stress Scales (DASS). Mr Skoko had experienced strong feelings of suicidal ideation.[8]
[8] ARD, p 75.
There were differing views from the qualified gastroenterological specialists. Dr Frommer provided a medicolegal report to the appellant’s lawyers dated 5 December 2022.[9] Dr Sethi, provided reports to the respondent’s solicitors dated 28 September 2022, 24 November 2022, 16 January 2023 and 26 April 2023.[10]
[9] ARD, p 35.
[10] Reply to Application to Resolve a Dispute, pp 31–44, 55–61.
In paragraphs [29]–[35] of the reasons the Member summarised the opinion of Dr Frommer. He said:
“33.   Dr Frommer writes that the medical literature suggests that there may be a causative link between psychological stress and subsequent flareups or deterioration of IBD but the evidence for this is not strong. He refers to nine studies which he could locate ‘of varying methods, quality and conclusions’, with three studies finding a causative link and another study with a link in the long-term.
34.    Dr Frommer does opine that it is well-established that irritable bowel syndrome (IBS) can worsen with psychological stress and that an article he found suggests that a quarter of IBD [patients] reported symptoms compatible with IBS, which suggests that some patients might have both conditions. Dr Frommer concludes that Mr Skoko ‘may therefore have both IBS as well as IBD and the link that he alleges between his flare-ups or for deterioration may have a component of IBS.’
35.    Dr Frommer then writes:
‘I believe that the primary contributing factor to the current injury/condition and ongoing gut symptoms is his pre-existing IBD but that the fall led to the psychological stress which may have caused exacerbations of his symptoms.’”
I interpolate that IBD is an acronym for Inflammatory Bowel Disease.
The Member quotes the following from Dr Sethi:
“He has had several exacerbations of Crohn’s disease which predated his work injury. Given this, it is highly unreasonable, on the balance of probabilities, to blame his work injury for causing exacerbation of Crohn’s disease. I note that Crohn’s disease is well described in the medical and scientific literature to be a relapsing and remitting disease. That is to say that the natural history of Crohn’s disease involves intermittent exacerbations.
There is no scientific evidence that emotional stress causes a worsening of Crohn’s disease. This has never been proven or established in any scientific trial. The overwhelming majority of medical and scientific opinion is that there is no causative link between stress and Crohn’s disease.”[11]
[11] Reasons, [38].
The Member noted that Dr Sethi rejected Dr Klar’s opinion on the basis that Dr Klar was an orthopaedic specialist and the opinion was outside Dr Klar’s field of expertise.[12] The Member quoted from Dr Sethi’s report of 24 November 2022: “In other words, his Crohn’s disease has flared of its own accord.”
[12] Reasons, [39].
Dealing with Dr Wettstein’s comment of 11 July 2022 quoted above [13], Dr Sethi said the comment by Dr Wettstein “merely [reflected] Mr Skoko’s subjective opinion and is not backed up by any scientific or clinical evidence.”[13]
[13] Reasons, [41].
The Member observed that Dr Sethi’s response to the opinion of Dr Frommer was that “only three of nine studies showed a possible link between psychological stress and subsequent exacerbations of IBD”, which Dr Sethi regarded as constituting extremely weak evidence. Dr Sethi regarded such evidence as contradictory to widespread established medical and scientific opinion. Furthermore Dr Sethi did not consider that Mr Skoko had IBS.[14]
[14] Reasons, [43]–[44].
After summarising the submissions of the parties, the Member quoted Moon v Conmah Pty Limited[15] and cited a portion of the decision of Kirby P in Kooragang Cement Pty Ltd v Bates[16] at [463]–[464]. He then said:
“The issue to be determined in this dispute is whether the aggravation of Mr Skoko’s gastrointestinal condition since 2017 results from the effects of the work injury which Mr Skoko sustained to his right knee on 28 August 2017.”[17]
[15] [2009] NSWWCCPD 134.
[16] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[17] Reasons, [56].
After referring to the medical history, the Member said this:[18]
“67.   However, there does not appear to be any medical material around the time of the colonoscopy and endoscopy in 2019 which identifies a link between psychological distress being experienced by Mr Skoko and the exacerbation of his gastrointestinal condition other than a reference to a ‘depressed mood’ in the endoscopy report.
68.    The next colonoscopy and endoscopy in April 2021 are conducted when Dr Wettstein identifies a minor flare-up, but there is no reference to a link between psychological distress being experienced by Mr Skoko and the exacerbation of his gastrointestinal condition in the material from Dr Wettstein. This flare-up does coincide with the litigation involving the claim for a consequential condition affecting the left knee and the need for surgery on that knee, and Dr Klar is prepared to opine in November 2021 that the difficulties experienced by Mr Skoko with his workers compensation has potentially caused exacerbation of his Crohn’s disease.
69.    It is only at the time of the next flare-up in mid-2022 that Dr Wettstein refers to the aggravation of the gastrointestinal condition by psychosocial stressors being related to the work injury. However, that is not an opinion volunteered by Dr Wettstein in the colonoscopy report dated 11 July 2022, but merely a record of what Mr Skoko believed was the cause of that most recent flare-up.”
[18] Reasons, [67]-[69].
The Member concluded that Dr Wettstein did not provide an opinion “as to whether psychological distress which Mr Skoko has experienced may have exacerbated his condition”. At reasons [70] the Member says that an opinion on this point from Dr Wettstein would likely have been very helpful in the determination of the dispute because Dr Wettstein has been treating and monitoring Mr Skoko’s gastrointestinal condition for over eight years.
The Member says:
“72. In the absence of an opinion from Dr Wettstein, Mr Skoko is left very much to rely upon the opinion of Dr Frommer. However, I find that the opinion provided by Dr Frommer is weak and tentative and I find that I cannot rely upon that opinion with any confidence.
73. Dr Frommer concedes that gastroenterologists rarely regard psychological stress as precipitating causes for flareups for the deterioration of IBD. He refers to three studies with ‘a link’ between psychological stress and subsequent exacerbation of IBD but makes no attempt to identify those studies or to provide any further details of what is contained in those studies. He refers to a total of nine studies ‘of varying methods, quality and conclusions’ but [makes] no attempt to engage in his own interrogation of the studies to identify which studies should be preferred.”
The Member says that Dr Frommer, having been provided with medical material since 2014, did not engage in his own analysis of the development of Mr Skoko’s gastrointestinal condition over the ensuing years.
In rejecting Dr Frommer’s opinion the Member says:
“76. Dr Frommer also does not provide his own scientific reasoning from his own clinical experience or from a consideration of studies which he refers to as to how there is a causal connection between psychological stress and the flare-up of symptoms associated with Mr Skoko’s gastrointestinal condition.
77. While I accept that Mr Skoko has experienced psychological stress due to the effects of the injury he sustained to his right knee on 28 August 2017, I have concluded that Mr Skoko has failed to establish on the balance of probabilities that this psychological stress has led to an exacerbation of his gastrointestinal condition because of the deficiencies and weakness in the opinion from Dr Frommer and the lack of any support for such a causal connection in the material from Dr W[e]ttstein.”
The Member notes the appellant’s submission that “there is well established authority that a court or tribunal can evaluate all of the evidence to determine that a possible causal connection can be established on the balance of probabilities”:[19] EMI (Australia) Limited v Bes;[20] Fernandez v Tubemakers of Australia Limited.[21]
[19] Reasons, [78].
[20] [1970] 2 NSWR 238, [242].
[21] [1975] 2 NSWLR 190 (Fernandez), [197].
He directs himself by reference to paragraph [200] of the latter as follows:
“In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause.”
The Member says:
“From my evaluation of the evidence, I do not consider that the psychological stress which Mr Skoko claims he has experienced as a result of the injury to his right knee is ‘sufficiently close’ (Fernandez) to the flare-ups of his gastrointestinal condition to reach a conclusion that this psychological stress as a possible cause of some or all of those flare-ups since 28 August 2017 is the actual cause of the aggravation of his gastrointestinal condition.”[22]
[22] Reasons, [82].
Later the Member repeats his opinion as follows:
“88. I reiterate that I accept that Mr Skoko has experienced psychological stress due to the effects of the injury he sustained to his right knee on 28 August 2017, but the evidence which I have referred to is not ‘sufficiently close’ to conclude on the balance of probabilities that this psychological stress is the actual cause of the aggravation of his gastrointestinal condition.
89. I also prefer the opinion provided by Dr Sethi over the opinion provided by Dr Frommer.”
After referring to Wiki v Atlantis Relocations (NSW) Pty Limited,[23] the Member then summarises the reasons for which he prefers Dr Sethi’s opinion. He accepts the following:
“92.   Dr Sethi states that there is no scientific trial which proves or establishes that emotional stress causes a worsening of Crohn’s disease. That is a conclusion which I accept when Dr Frommer does not provide any details of the studies which [he] has located that would allow Dr Sethi to respond to this.
93.    Dr Sethi also provides reasons as to why he does not consider that Mr Skoko has IBS, which is in contrast to what amounts to no more than speculation by Dr Frommer of a possible cause for the flare-ups which Mr Skoko has experienced since 2017.
94.    I have set out my reasons as to why I do not consider that the evidence relied upon by Mr Skoko is sufficient to establish on the balance of probabilities that he has suffered a consequential condition affecting his gastrointestinal condition as a result of the injury he sustained to his right knee on 28 August 2017.”
[23] [2004] NSWCA 174; 60 NSWLR 127, [62].
In the event there was an award for the respondent on the claim.

THRESHOLD MATTERS

The respondent accepts that the appeal was lodged within 28 days of the decision appealed against and that there are no threshold issues.

ON THE PAPERS

The parties agree that it is appropriate that the appeal be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act2020, together with 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 that 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 conference or formal hearing.

NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Two subsections are particularly relevant, namely:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
And:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
I provide a fuller explication of the operation of these two provisions in the course of considering the appeal.

GROUNDS OF APPEAL

The appellant is conducting the appeal in person and has set out his reasons for submitting that the determination of the Member should be reversed without identifying explicitly grounds of appeal.
I have summarised the appellant’s submissions/grounds of appeal for disputing the Member’s determination correcting some obvious grammatical errors. The appellant has provided three groups of submissions which for ease of reference I have summarised under headings.

Submissions in chief

The appellant submits the decision was based on a lack of recent clinical, longitudinal and experimental studies providing strong evidence on how stress causes the aggravation of UC and Crohn’s disease. The appellant attaches a chronology and abstracts from 16 scientific articles.
The appellant submits that the opinion of Dr Sethi in the report of 16 January 2023 was “speculative”, “subjective” and “unprofessionally presented”.
The appellant draws attention to the Member’s determination at paragraphs [37]–[44] and [91]–[93] and says that in those paragraphs the Member made “material mistakes”, namely:
(a)    “From reading [Dr Sethi’s report dated 16 January 2023], then repeated main points on 24 April 2023 it is hard not to conclude that the Independent Reviewer Dr Sethi has not been informed what [this] claim [is] about. In addition, from the report [it] is not hard to conclude that the reviewer is not differentiating Ulcerative Colitis (UC) from Crohn’s Disease (CD), stating that ‘CD is not causing UC’.”
(b)    “[It is] clear that stress related to accepted liabilities injuries is causing aggravation of the [appellant’s] IBD.”
(c)    Dr Sethi continues to state incorrectly that the appellant “does not have UC. He has Crohn’s which is pre-existing”. “Furthermore, he is not consulting the clinical evidence that [the appellant has] been diagnosed with the UC then with the Crohn’s. In the report he wrongly claimed that [the appellant has] had Crohn’s from 1981, instead [of] UC.”
(d)    Dr Sethi does not cite any of the literature sources and clinical studies to support his opinion.
(e)    Dr Sethi does not elaborate on how the intermittent exacerbations of Crohn’s disease are caused.
(f)    Dr Sethi did not consider the psychological diagnosis of the treating psychiatry specialists and independent reviewers, namely Dr Oxley whose report was presented to the Member and Dr Modem and another reviewer whose reports were held by the insurer and not presented to the Member.

The appellant submits that the method of assessment by the Member at reasons [67], [68], [69], [70], [71], [86] and [87] is questionable. He submits that the Member was in error in his assessment of the treating doctors’ material as he submits they were not supposed to elaborate on the link between stress and aggravation of the UC and Crohn’s disease. The Member took account of only those non-elaborating reports (Dr Wettstein’s) but did not take into consideration for the determination the reports of Dr Vivekanandarajah and Dr Klar, and in particular a report by Dr Ghaly dated 9 February 2023.
The Member failed to take account of the respondent reviewer’s report on prognosis and the reasons for the respondent to medically retire the appellant. The appellant refers to the letter from Dr Tang which says that he suffered significant physical injuries which in turn have caused significant medical issues.

Submissions following receipt of the transcript

Following receipt of the transcript, the appellant lodged a further document headed “Additional comments to the transcript prepared for PIC of NSW before John Isaksen (Member)”.
Much of this document involves a consideration of the method in which counsel for each of the parties advanced their client’s case(s) before the Member.
The appellant submits:
“As I have addressed in my initial Objections and consequent submissions of the Amended Submission, several misunderstanding, incorrect and disputation and have provided an Annotated literature reviews of several hundreds of confirmatory of my claim scientific refereed journal articles and clinical studies results of the stress (due to injury and consequent 5 surgeries) related aggravation of my illness, here I will only address few characteristics of the ‘proceedings arena’.” (As written)
The appellant says:
“I am neither a practising Gastro nor Legal expert, but I do know first-hand about Crohn’s and Colitis, in addition to what I have experienced and learnt for the last almost 6, 5 years dealing with insurance agencies, IMEs, solicitors, surgeons etc.”
Thereafter the appellant records briefly his academic qualifications and his qualifications as a professional researcher and submits:
“All of the above give me rights to have an opinion about what I have researched for over 40 years, as a professional researcher in different area, my personal issues as Ulcerative Colitis and Crohn’s disease. Dismissing it over an unknowledgeable, speculative, subjective, written for a purpose report is, at least unacceptable.” (As written)
The balance of the document then refers to different submissions made by the parties’ representatives to the Member. I have read the material. The commentary does not in my view address error of fact, law or discretion on the part of the Member. Furthermore, the attacks on Dr Sethi’s integrity are both inappropriate and unhelpful.

Respondent’s submissions

The respondent notes that the appellant seeks to rely upon excerpts from various studies (Attachment 1 to the appeal) and submits that leave for this evidence to be given on appeal should not be granted as the evidence was available to the appellant before the proceedings concerned and the failure to grant leave will not cause substantial injustice in the case.
The respondent submits with respect to the latter:
“(a)    There is no evidence the studies concerned were put before, or otherwise considered by, any of the medical experts who reported in the matter.
(b)     The excerpts of studies in the form provided and without accompanying comment from a suitably qualified expert are of limited or no probative value.
(c)     No substantive explanation has been provided as to why the fresh evidence was not in the proceedings before the Member.”
The respondent quotes from Raulston v Toll Pty Limited;[24] Northern NSW Local Health Network v Heggie[25] and Workers Compensation Nominal Insurer v Hill[26] as authority for the proposition that “an argument the Member should have reached an alternative conclusion based upon the same evidence is not an available basis for an appeal.”
[24] [2011] NSWWCCPD 25 (Raulston).
[25] [2013] NSWCA 255, [72].
[26] [2020] NSWCA 54.
The respondent submits the discussion from paragraphs [15]–[44] of the reasons contains no error in accounting for the medical evidence before the Commission. The respondent says that it is clear from paragraph [45] of the reasons that the Member considered submissions by the appellant alleging the correlation between the flare-ups of the appellant’s inflammatory bowel condition with stressful events. As to that:
“The Member correctly recorded (Statement of Reasons, [47]) counsel for the appellant’s concession that the ‘highest I can put that is that the possibility that stress has aggravated his condition’ (transcript page 10, line 23) and ‘we’re still in the realm of possibility’ (transcript page 10, line 32).”[27]
[27] Respondent’s submissions, [22].
The Member made no error of fact, law or discretion in consideration of the evidence before him “save for perhaps one questionable conclusion, at [62], that ‘Mr Skoko’s gastrointestinal condition was relatively inactive between 2014 and the work injury in 2017’.”[28]
[28] Respondent’s submissions, [23], quoting reasons, [62].
It is apparent from the evidence that there was cause for the appellant to undergo further diagnostic studies and treatment for his condition in 2015 culminating in a general report from Dr Wettstein on 14 December 2015,[29] confirming the appellant’s condition was prone to flare-ups, which would require medical treatment and continuing maintenance therapy.
[29] ARD, p 256.
If the conclusion expressed at [62] of the reasons did constitute an error of fact, that would not vitiate the decision because the alternative finding (i.e. that there was a flare-up in the appellant’s condition between 2014 and 2017) would strengthen the Member’s ultimate conclusions.
Finally, the respondent submits:
“The reasons given by the Member for his decision to prefer Dr Sethi’s conclusions over those of Dr Frommer are consistent with the appellant’s own concession as to the weakness in Dr Frommer’s report, and so do not disclose any error of fact, law or discretion.”[30]
[30] Respondent’s submissions, [26].

Appellant’s submissions in reply to the respondent’s submissions

The appellant responds to the respondent’s submissions in Part A. This I take to be a reference to the respondent’s submissions with respect to the opposition to permitting new evidence to be adduced.
The appellant submits in support of the receipt of the new evidence that the Member’s decision was based on a wrong expert’s report that “denied the existence of the evidence (which further provide the reason why the evidence was not on the table), but not on Appellant available evidence.” (As written)
The appellant submits:
“The Member’s decision, which is based on a wrong (erroneous Dr Sethi) Expert’s report, indeed constitute erroneous Decision. As obvious fact is that the evidence of the link of stress (caused by the injury and related treatment as well as consequences of it) has been in existence from the early 90s at least). That’s why the Appellant sought the wrong Decision to be corrected by the Appeal (Attachment # 1) and to reverse the Member’s Decision in favour of the Appellant.”[31] (As written)
[31] Appellant’s submissions in reply, Part A, [2].
Further he submits that “the concept of ‘the decision based on error is erroneous’ be further explored in the general principles of decision-making and error analysis, decision theory, cognitive bias and/or risk management.”[32]
[32] Appellant’s submissions in reply, Part A, [3].
The Member acknowledged the possibility of causation between stress and aggravation of Crohn’s disease/ulcerative colitis but did not make the right decision. The appellant says he has the expertise to answer the respondent’s submission that “excerpts of studies in the form provided and without accompanying comment from a suitable qualified expert are of limited or no probative [value]”.
The appellant submits that Dr Sethi’s report dismisses the existence of the studies.
The appellant submits the respondent’s arguments in paragraphs [8] and [9] (in respect of why leave should not be granted to admit the new evidence) should be dismissed in their entirety.
Under the heading of “Part B” the appellant addresses the balance of the respondent’s submissions on appeal.
The appellant submits that being unrepresented and not following the form in which the appeal is usually presented should not preclude him from securing his rights and the correct decision of the President.
“In addition, the Appeal evidently is not seeking a new hearing but to correct the Member’s Decision and grant the Appellant’s Appeal as the new evidence was provided [to] support the Appeal.”[33]
[33] Appellant’s submissions in reply, Part B, [5].
The appellant attacks the report of Dr Sethi in various ways, claiming it to be “incorrect, unprofessional, speculative” and says that the Member was in error in basing his conclusions on the acceptance of Dr Sethi’s report.
The respondent’s reference to the appellant’s submissions before the Member is submitted by the appellant to be a “clever misinterpretation taken out of the context of the [appellant’s] submissions.”[34]
[34] Appellant’s submissions in reply, Part B, [10].
The appellant repeats his submission that Dr Sethi’s report is “completely wrong, unprofessional, which rejected existence of any study, full of mistakes and speculation, unknowledgeable mixing Crohn and Ulcerative Colitis etc … and as such [the] report should be dismissed and take [Dr] Frommer’s report, which at least quoted some studies although did not provide references.”[35]

CONSIDERATION

[35] Appellant’s submissions in reply, Part B, [11].

Nature of the appeal

I have set out the text of s 352(5) of the 1998 Act above. In essence the appeal is limited to the identification and correction of error of fact, law or discretion. If no error on the part of the Member is demonstrated the appeal must fail.
The respondent in its submissions has quoted the relevant authorities with respect to the jurisdiction provided under s 352(5).
In Raulston Deputy President Roche said the following:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir&Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 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) are relevant.”[36]
[36] Raulston, [19].
Thereafter the Deputy President sets out the three subparagraphs noted by the respondent at paragraph [16] of its submissions.
By way of amplification, the Deputy President quoted from Branir Pty Limited v Owston Nominees (No 2) Pty Limited[37] as follows:
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[37] [2001] FCA 1833, [28].
The essence of the appellant’s complaint is that in the present matter, the Member was in error in accepting the evidence of Dr Sethi in preference to the evidence of Dr Frommer. As I understand the appellant’s complaint, the error is demonstrated because the opinion of Dr Sethi is falsified by the scientific literature he seeks to rely upon in support of the appeal.

Leave to rely on additional evidence in the form of the material at Attachment 1: s 352(6) of the 1998 Act

Section 352(6) provides that fresh evidence or evidence in addition to or in substitution for the evidence before the Member cannot be relied upon in the appeal unless leave is granted by the Presidential Member. However, leave is not to be granted unless the Commission is satisfied “that the evidence concerned was not available to the party and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Section 352(6) thus contemplates two categories of evidence, namely:
(a) evidence that was not available to the party and could not have reasonably been obtained by the party before the proceedings were heard by the Member, and
(b) evidence such that a failure to grant leave would cause a substantial injustice in the case.
The matter was heard before the Member on 5 October 2023. The latest of the abstracted articles appears to be study number 3 which was published on 22 June 2023. It follows that the appellant does not apparently satisfy the first category of case within s 352(6). The appellant has not advanced any submission to the effect that he does.
The appellant’s submissions in reply to the respondent’s submissions are based on the proposition that the scientific material in the attachment, if received, would necessarily lead to a conclusion in favour of the appellant.
I take those submissions as advanced on the basis of the second tranche of s 352(6), that a failure to grant leave would cause substantial injustice in the case.
In this context, “substantial injustice” requires the appellant to demonstrate that if the material is admitted into evidence there would be a different result. In Chep Australia Ltd v Strickland[38] Barrett JA (Basten and Macfarlan JJA agreeing) said:
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[38] [2013] NSWCA 351; 12 DDCR 501, 509.
I would not grant leave to rely on the material in Attachment 1 for the reasons that follow.
Firstly, the Commission is not scientifically qualified at either the Member or Presidential level to assess the academic material without expert assistance: Strinic v Singh.[39]
[39] [2009] NSWCA 15, [57], [64]–[65].
Secondly, the extracted material is mere abstracts of the scientific articles.
Thirdly, there is no substantial miscarriage because the Member had the benefit of Dr Frommer’s observation about the weight of the scientific discourse and Dr Sethi’s opinion that there is no literature establishing the relevant causal connection. The two specialist gastroenterologist’s evidence was that the scientific discourse gave rise to a possibility of a causal connection.
Fourthly, the appellant needed to establish that if the material in Attachment 1 were taken into account, there would necessarily be a different outcome. In my view, even if that material were otherwise admissible, the evidence would go no higher than a conclusion that there is a possible link between psychological stress and the appellant’s gastrointestinal condition.

DETERMINATION

The appellant’s primary challenge is to the Member’s reliance on Dr Sethi’s evidence. Putting to one side the ad hominem attacks, the appellant’s complaint is that Dr Sethi’s opinion cannot be accepted having regard to the additional material in Attachment 1. The appellant’s submission is that the opinion of Dr Sethi lacked “recent clinical, longitudinal, and experimental studies on the strong evidence on how the stress causes the aggravation of UC and Crohn’s disease”. As I have declined to grant leave to rely on this material, this challenge to the Member’s decision fails.
The appellant’s submission that the treating doctors were not required to elaborate on the link between the stress and the aggravation of UC and Crohn’s disease is ambiguous. However, that is of no consequence; the point made by the Member was that there was no evidence from the treating doctors making good the claimed causal link.
Furthermore, the appellant’s submission that the Member did not deal with or have regard to the evidence of each of the medical witnesses is incorrect. The Member’s summary of the medical evidence at reasons [15] to [44] is comprehensive. His findings having regard to the medical evidence at paragraphs [57] to [77] are analytical and based on the evidence presented to the Member.
Although the appellant has focused his attack on the Member’s acceptance of the evidence of Dr Sethi, the critical problem with the appellant’s case before the Member is made clear in paragraph [77] of the reasons, namely “the deficiencies and weakness in the opinion from Dr Frommer and the lack of any support for such a causal connection in the material from Dr W[e]ttstein”.
This weakness is not overcome by Dr Ghaly’s report dated 9 February 2023,[40] as to which the Member said:
“There is a report from Dr Ghaly, consultant gastroenterologist, dated 9 February 2023 which diagnoses Mr Skoko as having chronically active steroid dependent Crohn’s colitis.”[41]
[40] ARD, p 299.
[41] Reasons, [25].
There is no expression of opinion on the part of Dr Ghaly that periods of stress and anxiety were causally relevant to the deterioration in the symptoms. The passage at page 2, paragraph [2] is consistent with coincidence or correlation between stress and increased symptoms. Dr Ghaly does not express a considered opinion on causation. But even if he had, the Member was plainly cognisant of the report’s content and notwithstanding, preferred the opinion of Dr Sethi. No error has been demonstrated in so doing.
The report of Dr Tang dated 4 October 2022[42] does not take the matter further. The appellant was medically retired on the basis of Dr Tang’s conclusion that he was not able to perform all the inherent requirements of his role as a lecturer and researcher.
[42] ARD, p 44.
There was no error on the part of the Member in relation to Dr Tang’s report. The report does not address the issue of the causal relationship between the psychological impact of the 2017 injury to the right knee and the appellant’s gastric ill health. Dr Tang says the pharmacotherapeutic regime would cause side effects. He says “[l]ong term use of codeine would cause chronic constipation and this would in turn cause worsening of his colitis” but this is a physical response to the medication quite different from the case the appellant sought to make before the Member.

CONCLUSION

The appellant has failed to establish error on the part of the Member. The appeal is dismissed and the Amended Certificate of Determination dated 11 October 2023 is confirmed.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

12 September 2024