Smith v Reln (Manufacturing) Pty Limited - [2020] NSWWCCPD 29

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Smith v Reln (Manufacturing) Pty Limited [2020] NSWWCCPD 29
APPELLANT:	Jo-Anne Smith
RESPONDENT:	Reln (Manufacturing) Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-3475/19
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	17 October 2019
DATE OF APPEAL DECISION:	19 May 2020
SUBJECT MATTER OF DECISION:	Whether arbitrator correct to find that the appellant had not made out a case upon the evidence of having suffered cervical spinal cord injury or traumatic brain injury, and thus no injury to the central and peripheral nervous system of the cervical spine in the motor vehicle accident/journey injury which gave rise to her claim
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr F Bellissimo, solicitor
Bellissimo Lawyers
Respondent:
Ms E Blackman, solicitor
Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The name of the respondent, wherever it appears, is amended to read ‘Reln (Manufacturing) Pty Ltd’. 2. The Arbitrator’s Certificate of Determination of 17 October 2019 is confirmed.

INTRODUCTION AND BACKGROUND

This matter has a longer than usual history. The decision of Arbitrator Wynyard (the Arbitrator) against which the appellant worker presently appeals is the second decision of an arbitrator upon her claim. It follows the outcome of an appeal in an earlier proceeding (Matter No 1581/18) from Arbitrator Beilby’s (the first Arbitrator) decision to the Presidential level of the Commission.[1] The appeal was decided by Deputy President Wood. The matter was remitted for redetermination before Arbitrator Toohey, then discontinued by consent orders issued on 15 March 2019. Fresh proceedings were consequently brought in the present matter.
[1] Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51.
It was common ground that whilst employed by the respondent employer, the appellant on 17 April 2012 was involved in a serious motor vehicle accident in compensable circumstances: she was travelling to work at the time.
No other vehicle was involved. The appellant lost control of her vehicle and crashed at high speed into a tree.
She was conveyed by ambulance to Liverpool Hospital and admitted by reason of multiple injuries.
Certain compensation benefits were voluntarily paid but subsequently a dispute arose between the parties in relation to a claim by the appellant for weekly payments of compensation for a period and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of alleged whole person impairment as a result of the injury to the appellant’s:
(a)    cervical spine;
(b)    lumbar spine;
(c)    pelvis;
(d)    scarring;
(e)    right upper extremity, and
(f)    central and peripheral nervous system.
These claims were heard by the first Arbitrator on 29 May 2018. After a short period of reservation of decision, the first Arbitrator delivered oral reasons on 22 June 2018. The decision was dispository of the claim for weekly payments in a fashion accepted by the parties and of no further concern.
In relation to the s 66 claim, nothing turned or turns upon the allegations in respect of the pelvic injury or scarring, but as to the other injuries going to make up that claim, which remain material, the first Arbitrator held that the appellant had not made out a case of injury to her lumbar spine but had done so in respect of the alleged injury to the cervical spine and central and peripheral nervous system.
The respondent employer appealed and the appeal came before Wood DP. It was decided by her on 19 November 2018. Deputy President Wood allowed the appeal and remitted the matter for re-determination before a different arbitrator.
The basis of the decision of Wood DP was the inadequacy of the first Arbitrator’s reasons. There is no need to elaborate upon this. There was no appeal to the Court of Appeal from the decision and the appellant’s claim went back for re-determination as ordered.
The further hearing took place before Arbitrator Wynyard on 2 September 2019, and he delivered reserved reasons for judgment on 17 October 2019.[2]
[2] Smith v Rein Manufacturing Pty Ltd [2019] NSWWCC 336 (Reasons).
As will appear below, there was before the Arbitrator expert medical evidence from both parties that was not before the first Arbitrator or the Deputy President. That additional evidence was further reports from medical experts engaged by each party, whose earlier reports were before the first Arbitrator.
As indicated in para [1] above, the Arbitrator’s decision was adverse to the appellant and meant that she had no entitlement under s 66 of the 1987 Act.
That decision is challenged on this appeal.
I note that the documents that have been filed in the Commission (both at the arbitral level and on appeal) variously refer to the employer as “Reln (Manufacturing) Pty Ltd”, “Reln Manufacturing Pty Ltd” and “Reln Plastics Pty Ltd.” On 15 May 2020 the appellant made an application to amend the name of the respondent to ‘Reln (Manufacturing) Pty Ltd’, with the consent of the respondent. The amendment is made accordingly.

THRESHOLD MATTERS

So far as I can see, there is no dispute that the threshold requirements of s 352(3) and 352(4) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

ON THE PAPERS

The parties agree that this appeal may be dealt with “on the papers”. Having read the papers, and having regard to Practice Directions No 1 and 6, I am satisfied I have sufficient information to proceed ‘on the papers’ in accordance with section 354(6) of the 1998 Act.

FRESH OR NEW EVIDENCE

Neither party has tendered fresh or new evidence upon this appeal.

EVIDENCE

In his reasons, the Arbitrator dealt with the evidence in this fashion.
First, at para [15] of his reasons he set out, and I think quite clearly adopted, a detailed summary of the evidence made by Wood DP and set out in her reasons on the first appeal. So far as I can see, there was no new or fresh evidence admitted before her, so the summary was a summary of the evidence on the first arbitral hearing.
Then at paras [16]–[35] of his reasons, the Arbitrator summarised the additional expert medical evidence adduced by each party before him. The proceedings before him were fresh proceedings commenced as above mentioned upon the same claim that had been dealt with by Arbitrator Beilby and DP Wood.
For the respondent, that evidence was initially a report from Professor Kiernan dated 26 February 2019.[3] For the appellant, it was a report of Dr Teychenné dated 13 May 2019.[4] In response to that report there was, for the respondent, a further report from Professor Kiernan dated 8 August 2019.[5]
[3] Reply to Application to Resolve a Dispute (Reply), pp 27–29.
[4] Application to Resolve a Dispute (ARD), pp 51–54.
[5] Application to Admit Late Documents dated 26 August 2019 (AALD), pp 1–2.
As already mentioned, both of these medical experts had provided reports which were in evidence before the first Arbitrator, and thus in evidence before Wood DP.
To my mind, there could be no complaint about the way the Arbitrator addressed the evidence provided he discharged his obligation of taking proper account of it as he saw it, and not, for example, as a predecessor in decision-making in the proceeding had seen it. I mean by that that no difficulty arises from the fact that he set out and adopted Wood DP’s summary of the evidence as it previously stood in this case, so long as he was satisfied of its accuracy having considered the evidence independently. I think his setting out of the summary so as to leave no real doubt that he was adopting it, carries the conclusion that he regarded it as satisfactory, and having read the totality of the evidence I agree. There is no complaint by the appellant about this way of dealing with the evidence, and it may be noted that the Arbitrator’s approach is one often taken in these circumstances. To adopt a summary of a prior body of evidence which is accurate, to summarise additional evidence, and then proceed upon the basis of an evaluation of the new whole body of evidence, is a course frequently taken and which avoids a second restatement of the original evidence.
However, to give a sufficient indication of the evidence as it came to be before the Arbitrator for the purposes of allowing an understanding of the totality of it to a reader of these reasons, it is necessary that I give a summary of it.
As abovementioned, the motor vehicle accident in which the appellant was involved on 17 April 2012 was a serious one. Following it she said her memory or recollection was impaired and that the first thing she remembered was an event about two days later when she was questioned by a nurse in hospital, and she was thereafter confused for some days. This was evidence of post-traumatic amnesia. It was in the context of an allegation, amongst other things, of a closed head injury.
The appellant went on to describe continuing symptoms, relevantly headaches, slurring of speech and blurred vision.
She had a history of epilepsy, and said that she had not suffered a seizure for about ten years before the accident, but that about four months after the accident, seizures began again.
The appellant said that her memory continued to be bad and that she had undergone changes to her personality which involved anger, defensiveness, frustration, anxiety and negativity. She said that when she was in her twenties, she had had some psychiatric treatment for a personality disorder.
This brief summary does not exhaustively state the appellant’s evidence nor the full extent of her physical injuries. I have omitted the mention of injuries that were not in question, such as her pelvic injury, which was operated upon at Liverpool Hospital. No mention has been made of her low back injury, which went out of the proceedings as mentioned above, as a result of the first arbitration.
The evidence included clinical notes and records from the Ambulance Service and Liverpool Hospital.[6]
[6] ARD, pp 67–214.
The ambulance records revealed that the appellant was trapped for over 70 minutes, that her neck was placed in a cervical collar, that her Glasgow Coma Scale score was fluctuating, and that morphine was administered. (Again, this is not an exhaustive statement.)
The Liverpool Hospital Clinical Notes included radiological reports of x-rays and CT scans to various parts of the appellant’s body. Again, without exhaustively recounting them, it is relevant that CT scan of the brain and cervical spine showed a right moderately sized parietal subcutaneous haematoma and no other abnormality.
As to the appellant’s condition of epilepsy, she saw a treating neurologist, Dr David Rail, in May 2014, who furnished a report dated 30 June 2014.[7] She gave him a history of having recently suffered about 12 fits starting in May 2014. Dr Rail had not, prior to May 2014, seen the appellant for a long time. An earlier report of his of 24 January 2003[8] was consistent with the history he received in 2014. However, that 2014 history was not consistent with the appellant’s evidence in these proceedings of renewed onset of seizures in 2012, some months after her motor vehicle accident, nor with the frequency of them.
[7] ARD, p 217.
[8] ARD, p 215.
The medical evidence in report form included reports from the appellant’s general practitioner and an orthopaedic surgeon, Dr Bodel, in her case, which I do not think it is necessary to do more than mention. The nature of her claim for lump sum compensation under s 66 will be understood to make neurological evidence the critically relevant evidence, and for the appellant that was the evidence of Dr Teychenné both in the first arbitration and as supplemented in the second arbitration. This is particularly so, because Dr Bodel expressed no view on whether the appellant had suffered a closed head injury, aggravation or exacerbation of her epilepsy, or psychological problems as a result of the motor vehicle accident. He regarded these questions as being outside his expertise.
The abovementioned initial report of Dr Teychenné dated 24 March 2016[9] occupied ten pages and was followed by a separate report of the same date providing an assessment of percentage whole person impairment and a further report dated 9 February 2018[10] revising and increasing that assessment. The latter two reports do not go to the critical issue of the nature and extent of the effects upon the appellant of the motor vehicle accident in the context of her s 66 claim. The longer report of 24 March 2016 goes to that.
[9] ARD, pp 31–40.
[10] ARD, pp 46–50.
In it the doctor supports the appellant’s claim, expressing his conclusion in the second and third paras on page 10 of his report as follows:
“The distribution of sensory loss was consistent, in my clinical experience, with an incomplete cervical cord lesion. The weakly [sic] extensor left plantar response was quite consistent with an incomplete cervical cord lesion. The imbalance when standing on heels and toes and on heel to toe walk was quite consistent with an incomplete cervical cord lesion. The truncal ataxia was also not inconsistent in my experience with an incomplete cervical cord lesion. The decrease in coordination in the left hand when doing left rapid alternating movements was consistent with an incomplete cervical cord lesion. Thus, in my assessment Ms Smith had both a traumatic brain injury and an incomplete cervical cord lesion.
She had also had a probable exacerbation of her underlying seizure disorder where she had a history suggestive of complex partial seizure activity. Her stilted robotic gait and the wide based gait was consistent, in my experience, with an incomplete cervical cord lesion. The restriction in straight leg raising on the right side inducing sharp pain over the posterior right thigh at intensity 7/10 exacerbated by dorsiflexion of the right foot was also not inconsistent, in my experience, with an incomplete cervical cord lesion.”[11]
[11] ARD, p 40.
In the respondent’s case, in addition to the evidence of Professor Kiernan, the reports of two orthopaedic surgeons, Drs Breit and Rimmer, were advanced, but it was accepted for the respondent that two orthopaedic surgeons could not be relied upon and the evidence of Dr Breit was effectively abandoned. Thus, the respondent’s expert medical evidence comprised that of Drs Rimmer and Kiernan.
Only brief mention of the report of Dr Rimmer of 23 November 2016[12] need be made. Whilst he did not expressly decline to go into the areas Dr Bodel declined to deal with, the only real significance of his report is that he recorded, in his answer to one of the questions put to him, that upon his examination the appellant had made “… no mention of injury … to her cervical or lumbar spine region”: see page 5 of his report. However, he did not purport to express a neurological opinion and I think his report was properly not treated as significant to the issue before the second Arbitrator.
[12] Reply, pp 30–35.
On that, the evidence of Professor Kiernan was material and was put in three reports. The first, dated 10 November 2016, the second dated 14 May 2018 and the third dated 26 February 2019 preceded the second arbitration. A subsequent report of 8 August 2019 was before the Arbitrator.
Professor Kiernan in his first report recorded that he was given no history of loss of consciousness by the appellant and that she was not aware of a specific head injury or specific spinal cord injury. The history went on that the appellant had a pre-existing problem with epilepsy which had not troubled her for a long time until the onset of seizures about 15 months after the motor vehicle accident. The appellant told him that she continued to be seen by her treating neurologist, Dr Rail. Professor Kiernan noted the GCS score of 14 on admission to Liverpool Hospital and that cerebral CT scan was reported as normal.
He answered a number of questions put to him, the first of which was whether the appellant sustained an injury to the central and peripheral nervous system in the motor vehicle accident. On the strength of the history to him and the radiological investigation, he answered that question in the negative. However, he mentioned that “corroborating evidence” from Dr Rail “would be helpful, particularly the results of previous electroencephalography and results of structural imaging of the brain.”[13]
[13] Reply, p 21.
A further question was whether the appellant sustained a spinal cord lesion in the motor vehicle accident, and the doctor answered:
“On direct questioning, [the appellant] indicated that she did not sustain a spinal cord injury in the incident of 17 April 2012.”[14]
[14] Reply, p 22.
The doctor’s second report of 14 May 2018 was requested, judging from its content, because the solicitors for the respondent had received after his first report a number of reports and records. They are numbered 2–10 on pages 1 and 2 of his second report. It is apparent they were sent to him for comment. They included the reports of Dr Teychenné and the clinical records of Dr Rail.
He was asked some further questions, the first of which was whether the documents caused him to alter his previously expressed opinion. He answered in the negative. It is not necessary to rehearse the other questions and answers. It is sufficient to say that there was no comfort given to the appellant’s case and that in dealing with Dr Teychenné’s evidence, Professor Kiernan adhered to his opinion that there was no evidence of traumatic brain injury for the reasons he had earlier expressed.[15]
[15] Reply, pp 23–26.
Dr Teychenné’s further report of 13 May 2019 was also based upon a consideration of records submitted to him by the appellant’s solicitors, namely the Liverpool Hospital records, including the results of radiological investigations, the occupational therapy notes and records and the ambulance records. He summarised the content of those records in detail, and then at the foot of page 3 of his report, carrying over to the fourth and final page, expressed his opinion. The relevant passage seems to begin following the doctor’s comment that the Occupational Therapy Assessment indicated that the appellant had come out of post traumatic amnesia and was alert, not reporting memory change.
I think it is worthwhile setting out the whole of the passage in which Dr Teychenné expressed his opinion, because it was ultimately rejected by the Arbitrator, who preferred the views of Professor Kiernan, including the views he expressed in a final report commenting upon Dr Teychenné’s report of 13 May 2019. I will come to this report of Professor Kiernan.
The relevant passage of Dr Teychenné’s report of 13 May 2019 setting out his opinion is as follows:
“… She did not report any changes to memory, but this was in the acute period, that is, within three days after the impact. At the time of my assessment, the claimant had noted a significant memory deficit which she first noted two weeks after the accident. She also had episodes where she was missing time. This could last from half an hour to five hours and was probably consistent with partial seizure activity. She also had evidence of an executive deficit. She had difficulty working out how to change the wash cycle in the washing machine. She had been mentally ‘sharp’ prior to the accident and was able to carry out tasks such as changing the wash cycle on the washing machine without difficulty.
Her last memory prior to the accident was around 10.30 pm. The accident occurred about 10.40 pm. This would be consistent with a prolonged period of pre-traumatic amnesia and she probably had post traumatic amnesia of approximately two hours waking up in the hospital. She was confused when she woke up, which would be consistent with the traumatic brain injury. The evidence would indicate that she did have a traumatic brain injury. She does require an MRI scan of the brain looking for any evidence of macroscopic evidence of diffuse axonal injury. Diffuse axonal injury is however microscopic and not seen on macroscopic MRI of the brain.
At the time of my assessment she had a left hemicape decrease in pain, temperature and touch sensation, with a weakly [sic] extensor left plantar response and while I did not find any decrease in finger dexterity, she did have imbalance on heel-to-toe walk. She was unbalanced when standing on heels and toes and she had truncal ataxia. She had an unstable torso swaying back and forth when I was testing muscle power. She had decreased coordination in the left hand with a decrease in the left rapid alternating movements. She could not bring her feet together. They were 10 cm apart and she would fall back if pushed. She states that she had been a gymnast prior to the motor vehicle accident doing cartwheels.
I consider these clinical features were consistent with a spinal cord lesion and while I did not find any upper motor neuron muscle weakness, I would not be surprised if repeat examination demonstrated evidence of upper motor neuron weakness. She should have an MRI scan of the spinal cord to examine the macroscopic spinal cord; however, a normal macroscopic MRI scan of the spinal cord would not exclude a microscopic incomplete central cord lesion consistent with her spinothalamic sensory deficit.
Having reviewed the information supplied in my own report of 23 March 2016, I would accept that [the appellant] suffered:
·A closed head injury resulting in traumatic brain injury
·A probable injury to the cervical spine resulting in a spinothalamic sensory deficit.
There was some evidence of upper motor neuron involvement in that she had a weakly [sic] extensor left plantar response. Central imbalance, while it could be due to a traumatic brain injury, was more likely due to an incomplete cervical cord lesion.”[16]
[16] ARD, pp 53–54.

Professor Kiernan’s final report of 8 August 2019, commented on Dr Teychenné’s report of 13 May 2019. That commentary took the form of answers to three questions put to him. The first was whether Dr Teychenné‘s report caused any alteration to his previous opinion, and that was answered in the negative.
Questions 2 and 3 and their answers were as follows:
“2. We note Dr Teychenne indicates the [appellant] requires an MRI scan of the brain and spinal cord, but that these scans may not show any evidence of injury to the brain or spinal cord which would be microscopic. Please comment on whether you agree with Dr Teychenne’s opinion in this regard. Please specifically comment on whether the injuries diagnosed by Dr Teychenne would be identified on MRI scans.
In the report provided by Dr Teychenne, he opines that he ‘will not be surprised if repeat examination demonstrated evidence of upper motor neurone weakness’. It is not clear why he would make such a supposition. No supportive evidence is provided for such an opinion. When I examined Ms Smith some four years after the motor vehicle accident, there was no evidence of upper motor neurone abnormalities to suggest the presence of brain, nor spinal cord injury.
In terms of the injuries diagnosed by Dr Teychenne, namely traumatic brain injury and injury to the cervical spine resulting in spinothalamic sensory deficits, one would expect that both injuries would be identified on MRI scans.
3. Any other information considered relevant.
No further information.”[17]
[17] AALD, p 2.

THE ARBITRATOR’S REASONS

I indicated above at para [45] that the Arbitrator accepted the evidence of Professor Kiernan over the evidence of Dr Teychenné. He did so accepting the submissions put to him for the respondent (see para [73] of his reasons), but he explained in a detailed passage occupying paras [72]–[94] of his reasons, pages 16–18, why he did so and why he rejected the opinions of Dr Teychenné.
My brief summary of the Arbitrator’s reasoning is as follows.
The essential reasoning of the Arbitrator in rejecting the evidence of Dr Teychenné and preferring that of Professor Kiernan, involving as it did, an acceptance of the respondent’s submissions to him, lies in three broad considerations. First, he did not accept one of these matters of fact upon which the doctor relied, namely that the appellant’s fluctuating GCS score recorded by the ambulance officers at the scene of the motor vehicle accident preceded the administration of morphine. He said, correctly, at para [79] of his reasons that this was an assumption on the doctor’s part and noted that the doctor’s own view on when morphine was administered had itself fluctuated.[18] He accepted that the sequence of events happened as appearing in the para-medical records[19] and as set out in the chronology based upon it advanced for the respondent. This in turn led to the acceptance of the opinion of Professor Kiernan on this topic.[20]
[18] Reasons, [90].
[19] Reasons, [80].
[20] Reasons, [81].
Next, the Arbitrator thought that the language of Dr Teychenné’s opinion to the effect that following the injury an incomplete cervical cord lesion “would not be unlikely” was not sufficient to support a conclusion that there was such a connection according to the civil onus of proof (para [82]). He regarded the contents of the hospital notes and the results of radiological investigation as inconsistent with Dr Teychenné’s opinion but consistent with that of Professor Kiernan.
Thirdly, the Arbitrator took the view that Dr Teychenné’s opinion, I think undoubtedly correctly, was “very much reliant upon the accuracy of the history he was given by [the appellant]” and also reliant upon the physical examination he carried out himself.[21]. However, as the Arbitrator went on to recount, the appellant’s history was not consistent with contemporaneous records, and the clinical signs which Dr Teychenné found upon examination of the appellant were not replicated contemporaneously in other doctors’ records.
[21] Reasons, [84].
The detail of the Arbitrator’s analysis is well set out in his reasons under the heading “Discussion” on pages 16–18 and led to the conclusion articulated in para [94] thereof, as follows:
“94. I accept the opinion of Professor Kiernan. The motor vehicle accident did not cause any cervical spinal cord injury, nor any traumatic brain injury. There was accordingly no injury caused to the central and peripheral nervous system or the cervical spine.”

GROUNDS OF APPEAL

There are three grounds of appeal:
(a)    The Arbitrator erred in finding that no injury [sic, there was no injury] to the central and peripheral nerve system (Ground 1).
(b)    The Arbitrator erred in finding no injury to the cervical spine (Ground 2).
(c)    The Arbitrator erred in relation to the following:
(i)at para [73] the learned Arbitrator notes that he adopts Mr Dodd’s submissions;
(ii)at para [56] Arbitrator [sic] refers to Mr Morgan’s submissions that Wood DP had not expressed a view on the evidence;
(iii)at para [56] the Arbitrator says that Wood DP expressed views on the evidence;
(iv)with respect to the learned Arbitrator, this is not correct. Wood DP does not express views on the evidence and Arbitrator [sic] ought not try and glean a hint from the Deputy President, and
(v)the learned Arbitrator should not have had regard to any evidence but that before him (Ground 3).

SUBMISSIONS ON APPEAL

The submissions for the respondent raised what I think must be regarded as a preliminary matter to be dealt with before proceeding to a consideration of the substance of the appellant’s submissions in support of her grounds and the substance of the respondent’s submissions in answer to them. This is because the first submission for the respondent would, if acted upon, at least forestall that exercise. That first submission of the respondent put in paras [11]–[15] of its written submissions is that the formulation of the appellant’s appeal and submissions is bad in form. It does not comply with Practice Direction No 6 nor with a Direction given by the Registrar on 29 November 2019, that an amended appeal be filed. However, in para [16] of its written submissions, the respondent says that notwithstanding the initial position it takes, it will go on to answer the appellant’s submissions. In the balance of its written submissions it does so. In the circumstances, and for a reason that will become apparent, I propose to deal with the respondent’s initial submission by noting it as I have done, contenting myself with expressing a view, that is not concluded, that it appears to have real force, but that it is better to put it to one side and deal with the matter on the strength of the competing submissions of the parties in respect of the grounds of appeal. This is because they are there to be dealt with, because the appellant’s non-compliance with the Registrar’s Direction can be taken as an indication that the Grounds of Appeal and written submissions in support of them cannot be improved upon, and primarily for the reason which will become apparent after I have outlined my consideration of the submissions.

Ground 1

The appellant submits that the Arbitrator’s comment that “there is no independent recollection as to when [the appellant] started to experience epileptic episodes again”, said to have been made in paras [85] and [88] of his reasons, is incorrect by reference to the history recorded by the treating neurologist, Dr Rail. It is also put that it was incorrect to discount the evidence of Dr Teychenné because it relied upon the evidence of the appellant, and that the reality was that the respondent’s medical case in reliance upon Professor Kiernan was not inconsistent with the appellant’s case. (This I think is the essence of the appellant’s argument on this ground.)
In response, apart from a preliminary submission that the appellant’s written argument upon this ground is in breach not just of WCC Practice Direction No 6, but r 16.2 of the Workers Compensation Commission Rules 2011 and s 352(5) of the 1998 Act, the respondent puts that the appellant misquotes the Arbitrator, who said only at para [88] of his reasons, not both paras [85] and [88]:
“... There is no independent contemporaneous support for her estimate of either when she began to experience her epileptic fits again …”.
It is then pointed out that the Arbitrator’s approach was supported by the history recorded by Dr Rail and by the absence of any contemporaneous medical recording of epileptic seizures suffered by the appellant as she said she was suffering them in her evidentiary statement. The respondent’s submissions go on generally to challenge what was put for the appellant, in particular pointing out that what was put in respect of the opinion of Professor Kiernan is incorrect and a misstatement of his view.

Ground 2

The appellant submits that Dr Teychenné clearly found upper limb deficit in the appellant upon physical examination and that Professor Kiernan did the same, this being clearly indicative of cervical cord damage. The appellant further puts that there was no reason to doubt her evidence of her memory loss.
In response the respondent puts the same preliminary criticism of this ground as was made of Ground 1, and goes on to point out that what is put is not a correct interpretation of the evidence of Professor Kiernan. Further criticisms are made to the effect that no reason is advanced why Dr Teychenné’s evidence should not be accepted, nor why the appellant’s evidence should not be accepted, nor why its only perceived flaw was seen to be that her statement was “made after the event”.

Ground 3

The support for this ground as advanced by the appellant is the articulation of (i)–(v) set out above has the elements of the ground. They are paras [45]–[46] of the appellant’s written submissions. In other words, there is no elaboration or argument to add flesh to the skeleton of points (c)(i)–(v) set out in para [55] above. It seems to be the intension that they be treated as both grounds of appeal and argument in support of the appeal.
Once more the respondent makes the same preliminary objection as made to the preceding two grounds and goes on to say that what is put really amounts to a lack of submissions and that in consequence the ground is unclear and fails to identify error.
Although I will repeat this remark a little later below, it is appropriate to say at this stage that the respondent’s criticism of the articulation of this ground of appeal is entirely well founded. It is a little short of meaningless.

CONSIDERATION

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“(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.”
To my mind, the Arbitrator’s decision is correctly characterised as a decision of fact. It is to the effect that an analysis of the evidence shows that the foundation upon which Dr Teychenné relied for his opinion is unsound whereas the foundation for Professor Kiernan’s opinion is sound. The determination of the case called for a choice between the competing opinions of these two doctors, and the basis upon which the Arbitrator arrived at his determination was in the circumstances conventional and proper. It was an application of the principle stated by the High Court in Paric v John Holland (Constructions) Pty Limited.[22] To note this is to emphasise the factual nature of the decision.
[22] [1958] HCA 58; 59 ALJR 844.
Therefore, to succeed upon this appeal, the appellant must demonstrate error of fact.
With all respect to the case mounted upon this appeal by the appellant, it advances no cogent criticism of the Arbitrator’s decision and does not come close to undermining it. I accept the criticisms of the appellant’s submissions advanced by the respondent, and I think it appropriate to say that to the extent that the Arbitrator adopted the submissions put to him by counsel for the respondent – and he undoubtedly did so although his own reasoning and analysis justified that – those submissions appear to me to have been sound.
The appellant has fallen well short of demonstrating any relevant error that would disturb the Arbitrator’s decision.[23] Each of the grounds of appeal fails.
[23] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
It was because I had formed this view of the lack of merit in the appeal that I decided to put aside the respondent’s preliminary submission that it should be dismissed for what could be called technical reasons: see para [56] above. I felt it better to deal with the substance of the appeal (using that term advisedly), since it seemed to me that unless I have fallen into error in my disposition of this matter it was better to bring it to a conclusion in the Commission which went beyond matters that were arguably only of form.

DECISION

The name of the respondent, wherever it appears, is amended to read ‘Reln (Manufacturing) Pty Ltd’.
The Arbitrator’s Certificate of Determination of 17 October 2019 is confirmed.

Larry King SC

ACTING DEPUTY PRESIDENT

19 May 2020