State of New South Wales v Goonan - [2020] NSWWCCPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Goonan [2020] NSWWCCPD 28
APPELLANT:	State of New South Wales
RESPONDENT:	Bernard Goonan
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-3443/19
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	21 October 2019
DATE OF APPEAL DECISION:	19 May 2020
SUBJECT MATTER OF DECISION:	Acceptance of evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether incapacity and need for treatment arising after non-work related events result from the compensable injury – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, Cluff v Dorahy Bros (Wholesale) Pty Ltd [1979] 2 NSWLR 435, Conkey & Sons Ltd v Miller (1977) 16 ALR 479; 51 ALJR 583, Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91, Murphy v Allity Management Services [2015] NSWWCCPD 49 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Ralph, solicitor
Bartier Perry Lawyers
Respondent:
Mr M Forshaw, solicitor
Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 21 October 2019 is confirmed. 2. The appellant is to pay the respondent’s costs.

INTRODUCTION AND BACKGROUND

Mr Bernard Goonan (the respondent) was employed by the State of New South Wales (the appellant) as a police officer, working in the Tactical Operations Unit and then in the Police Prosecutions Division. The respondent suffered an injury to his back as a consequence of his work related duties in both those roles, which was deemed to have occurred on 17 August 2015. Liability for the injury was accepted by the appellant.
As he was an attested Police Officer, the respondent’s entitlements to compensation in respect of his injury and to legal costs are exempt from the operation of the Workers Compensation Legislation Amendment Act 2012 by operation of cl 25 of Pt 19H of Sch 6 to the 1987 Act.
In January 2019, the respondent experienced an increase of symptoms in his back after lifting a tyre at home. On 6 February 2019, while the respondent was on leave from work, he suffered an acute onset of severe symptoms in the back with referred right leg symptoms when he lifted a heavy box, again at his home.
The respondent attended the Emergency Department of Canberra Hospital and underwent an MRI scan. He was referred to Dr Justin Pik, neurosurgeon, who performed a laminectomy, microdiscectomy and rhizolysis.
The respondent returned to work on suitable duties on 30 April 2019.
The respondent lodged a claim for weekly payments of compensation for the period from 7 February 2019 to 30 April 2019, together with treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) on the basis that the injury on 6 February 2019 was a recurrence of his original injury deemed to have occurred on 17 August 2015. The appellant declined liability for the injury on 6 February 2019, the subsequent incapacity and the need for treatment. The appellant took the view that the incident on 6 February 2019 was an intervening incident that had broken the chain of causation.
The respondent commenced proceedings in the Commission and the matter proceeded to arbitration. The Arbitrator found in favour of the respondent (the applicant in the proceedings below).
The appellant appeals that decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) provides:
“(6) 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 without holding any conference or formal hearing.”
Both parties agree that an oral hearing is not required and are content to have the appeal determined on the papers.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision appealed against is not an interlocutory decision, so that leave to appeal is not required pursuant to s 352(3A) of the 1998 Act.

THE EVIDENCE

The respondent’s statement

The respondent provided a statement dated 25 June 2019.[1]
[1] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent indicated that he was attested as a probationary constable with the appellant on 9 May 2008 and performed general duties until 2011. Between 2011 and 2015, he was attached to the Tactical Operations Unit and from 2015 he was stationed at the Police Prosecutions Division.
The respondent described the nature of his duties with the Prosecutions Division, which required prolonged sitting and computer work and caused the onset of increasing back pain. The respondent said he submitted a notification of injury form on or about 17 August 2015 because of worsening back pain and the claim was accepted.
The respondent complained of ongoing periodic back pain and “significant” pathology at the L3/4, L4/5 and L5/S1 disc levels of his lumbar spine. The respondent said that thereafter he experienced flare ups of back pain, which he would not always report as it would subside without the need for treatment.
The respondent stated that on or about 16 January 2019, he lifted a tyre at home when he suffered pain in the right side of his back. The following day he consulted Dr Halyao He, general practitioner, for pain assistance, as he was at the time sitting for his examinations in law. The respondent said that, with the help of pain killers, within two weeks the pain had subsided, and he no longer required medical assistance.
The respondent described the further incident on 6 February 2019 when he lifted a heavy box. The respondent said he experienced pain in his buttocks which radiated down his right leg and into his foot. He felt numbness and a tingling sensation in his right leg and experienced weakness in his right foot and ankle and had “drop foot.” He could not walk on his right heel because of right ankle weakness, had reduced sensation in his right foot and urinary retention. He complained that driving exacerbated his pain.
The following day he attended Canberra Hospital Emergency Department, where an MRI scan was performed. He was refered to Dr Justin Pik, neurosurgeon, who he consulted on or about 25 February 2019. Dr Pik discussed the results of the MRI scan and recommended spinal decompression surgery.
The respondent stated that he was prescribed strong narcotic analgesia which helped but his pain did not subside. The respondent said that Dr Pik performed an L4/5 laminectomy, microdiscectomy and rhizolysis on 28 February 2019 which was intended to relieve the right leg symptoms.
The respondent advised that he was certified by his general practitioner to have no capacity for work from 12 February 2019 to 25 March 2019. The respondent reported that he returned to work on 30 April 2019 on modified duties for two weeks and then resumed full duties.
The appellant described his ongoing symptoms and difficulties.

The documentary evidence

An Incident Notification Form dated 17 August 2015 was annexed to the ARD.[2] In that document, the respondent notified the appellant that he was experiencing increasing low back pain when sitting, getting up, bending, twisting and lying down which had been caused by remaining in a seated position for extended periods of time. The respondent claimed that the pain and disability, which had previously gone away for a day or two was getting worse, to the point where he was concerned that his injury had become significant.
[2] ARD, pp 26–27.

The medical evidence prior to 6 February 2019

An MRI scan dated 17 August 2015 reported by Dr Kevin Ho-Shon, radiologist, was in evidence.[3] The clinical history was noted as “? disc herniation.” Broad based disc bulges were reported at all levels of the lumbar spine described as spondylotic change. Relevantly, those bulges at the levels of the L3/4 and L4/5 were described as “mild” and at L5/S1 as “minor”. There was foraminal narrowing at the L5/S1 level bilaterally but no definite neural compression. Dr Ho-Shon concluded that the findings were consistent with the findings on an earlier scan.
[3] ARD, p 28.
Dr Robert Reid, general practitioner, referred the respondent to Dr Michelle Atkinson, orthopaedic surgeon, on 18 August 2015 in relation to low back pain.[4] In the referral, Dr Reid advised that the respondent had been performing core strengthening every day and attended an exercise physiologist occasionally. Dr Reid noted the respondent had left work the day before and was required to do a lot of sitting in court.
[4] ARD, p 30.
On 19 August 2015, Dr Atkinson reported back to Dr Reid.[5] Dr Atkinson took a history of the respondent experiencing back pain after having to wear heavy body armour and a belt in his former role in the police SWAT team. Dr Atkinson recorded that the respondent noticed increasing back pain from being seated for prolonged periods in his role within Police Prosecutions and that his legs would give way when standing after 15 minutes of sitting. Dr Atkinson said that the respondent described the sensation as though something was touching his spinal cord. Dr Atkinson further noted that the respondent was unable to participate in dead lifting, boxing or punching exercises at the gym, and twisting caused low lumbar pain and locking. Dr Atkinson said that the respondent complained that he experienced severe pain when coughing in bed.
[5] ARD, p 31.
On examination, Dr Atkinson found no muscle wasting of the lower limbs. There was no reflex alteration or motor weakness in the lower limbs. Dr Atkinson recorded the results of a CT scan and MRI scan as disclosing mild disc degenerative changes, disc bulging at two levels and mild facet arthropathy with narrowing of the foramina at the L5/S1 level.
Dr Atkinson considered that the respondent’s symptoms were consistent with the disc degeneration disclosed on the MRI which was likely to be attributed to having to wear the heavy armour weighing 35 kilograms in his employment. Dr Atkinson noted that his pain was not neuropathic.
Dr Atkinson referred the respondent for assessment by Mr Damien Benson, chiropractor. Mr Benson reported to Dr Atkinson on 3 September 2015.[6] Mr Benson recorded the history of injury and discussed the MRI scan results, which he said disclosed minor degenerative changes and foraminal narrowing at L5 bilaterally. On examination, Mr Benson reported no apparent signs of motor or sensory alteration but that a “right sided quadrant position” reproduced the identifiable symptoms. Mr Benson noted “a remarkable degree of weakness of the multifidi group especially in the L4/5 region.” Mr Benson provided rehabilitation exercises.
[6] ARD, p 33.
Workcover certificates of capacity were issued by Dr Reid on 18 August 2015[7] and 29 October 2015,[8] both describing “occupational lower back injury” and certifying the respondent as fit for pre-injury duties. Further certificates were annexed to the ARD, some of which are illegible. On 18 May 2016, Dr Medhi Zahedpur, general practitioner, certified that the respondent had no capacity for work because of low back symptoms from 18 May 2016 to 22 May 2016 and had some capacity for work with lifting restrictions from 23 May 2016 to 30 May 2016.[9] Dr Zahedpur issued further certificates of capacity certifying the respondent had some capacity for employment with lifting restrictions during the period 31 May 2016 and 15 July 2016.[10] Dr Sasanka Gunaratne, general practitioner, certified that the respondent had no capacity for work from 29 August 2016 to 1 September 2016 and diagnosed the respondent as having re-aggravated his work related back injury when attempting to move his 20kg dog.[11] Dr Mehdi Mojtabaie, general practitioner, certified in an ordinary medical certificate dated 12 December 2017 that the respondent had attended the surgery seeking medication for his lower back pain.[12] On 19 December 2017, Dr Mojtabaie certified in a Workcover certificate of capacity that the respondent had no capacity for work from 18 December 2017 to 19 December 2017, diagnosing aggravation of a pre-existing lower back injury.[13] Lastly, on 13 March 2018, Dr Mohan Thampi, general practitioner, diagnosed the respondent as having suffered an aggravation of his lower back injury and certified the respondent as having no capacity for work on 13 March 2018.[14]
[7] ARD, pp 53–55.
[8] ARD, pp 56–58.
[9] ARD, pp 63–65.
[10] ARD, pp 67–80.
[11] ARD, pp 83–85.
[12] ARD, p 89.
[13] ARD, pp 90–92.
[14] ARD, pp 94–96.
Subsequent Workcover certificates of capacity related to the period after the incident on 6 February 2019, and do not assist with the issues to be determined.
The respondent underwent a CT guided injection of the facet joint conducted by Dr Jenny Bramley, radiologist, on 19 May 2016.[15] The clinical history recorded was of back pain and facet joint arthritis. The bone scan did not disclose any active facet joints, but Dr Bramley noted the most symptomatic region was slightly above the right L5/S1 facet joint.
[15] ARD, p 34.

The medical evidence from 6 February 2019

The MRI scan undertaken at Canberra Hospital on 7 February 2019 was reported by Dr John Cockburn as follows:
“background SI degeneration, acute pain yesterday with manual lifting at right L5/S1 with radiation to RLE num (sic ? numb) across L5/S1 medial foot great toe, urinary retention.? disc bulge with significant nerve root compression requiring operative intervention?
…
FINDINGS
Multilevel lumbar broad-based disc bulges are evident causing bilateral neural foraminal stenosis and spinal canal stenosis with indentation of the anterior thecal sac. This is most marked at the L4-L5 vertebral level which is complicated by right central/paracentral disc extrusion causing high grade spinal canal stenosis and thecal sac deformity. There is significant compression of the exiting right L5 nerve root. There is no abnormal bone marrow signal. Schmorl’s nodes are evident at the L2/L3 and L3/L4 vertebral levels.”[16]
[16] Reply to Application to Resolve a Dispute, p 1.

Dr Halyao He, general practitioner

Dr He’s clinical notes documented consultations with the respondent between 17 January 2019 and 4 March 2019.[17]
[17] ARD, pp 107–111.
The respondent attended Dr He on 17 January 2019 complaining of back pain. Dr He recorded the history of a work related L5/S1 disc prolapse 3 years ago and facet joint arthritis which had been treated with an injection and physiotherapy and Endone and Mobic had been prescribed in the past. The doctor noted that on the day prior to the consultation, the respondent was moving a tyre when he developed right sided sharp shooting back pain which then began to radiate down to his right buttock and scrotum. Dr He noted that there was an absence of pins and needles and numbness, there was no leg weakness and no loss of bladder or bowel control. On examination, Dr He found right sided tenderness at the L3/4 level and reduced flexion. Dr He recommended rest and prescribed Panadol, Mobic and Endone as needed.
On 12 February 2019, the respondent attended Dr He in respect of right shoulder pain, but Dr He also reviewed the paperwork from Canberra Hospital and the diagnosis of cauda equina syndrome with right foot drop and right foot numbness. On examination, Dr He noted that the respondent could not walk on his right heel and had reduced sensation to light touch in an S1 distribution to the right foot. Dr He noted that the trigger for the respondent’s attendance at Canberra Hospital Emergency Department was loss of bladder and bowel function. Dr He referred the respondent to Dr Pik.
The respondent again consulted Dr He on 21 February 2019. The respondent complained of continuing pain, worsening of his foot drop, difficulty driving and bladder difficulties. Dr He contacted Dr Pik’s rooms in order to bring forward the respondent’s appointment with Dr Pik.
On 4 March 2019, the respondent reported to Dr He that he had undergone surgery. Dr He recorded “Lumbar disc prolapse” and noted that the appellant had declined liability for the claim. Dr He noted:
“rang Jon [the claims manager] while Bernie in the room
Clarified that in my opinion this is exacerbation of an old injury at work.
Jon happy with phone discussion – no further paperwork from me is required at this stage”.[18]
[18] ARD, p 111.
The context of the conversation noted on 4 March 2019 was that Dr He had responded to a “Recurrence Questionnaire” forwarded to her by the appellant. On 25 February 2019, Dr He replied to the appellant’s questions, advising that the respondent had initially consulted her on 17 January 2019 with a history that the respondent developed back pain when he was moving a tyre on 16 January 2019. Dr He recorded a history of a previous disc prolapse in 2015. She advised that he had attended again on 6 February 2019 with acute back pain after lifting a heavy box. She referred to an initial injury in 2015, about which she had no details, and said she was not aware of any previous symptoms. Dr He indicated that the cause of the current onset of symptoms was a new injury which had exacerbated the respondent’s original injury. Dr He indicated that it was her opinion that the respondent suffered a pre-existing work related injury which pre-disposed him to further injuries.[19]
[19] ARD, pp 37–39.

Dr Justin Pik, neurosurgeon

Dr Pik reported to Dr He on 25 February 2019.[20] Dr Pik listed the respondent’s symptoms, which were consistent with those recorded by Dr He. Dr Pik noted that there had been no significant improvement in the respondent’s condition despite the use of narcotic analgesia. Dr Pik referred to the MRI scan taken at Canberra Hospital, which he said showed a large sequestrated disc herniation causing severe right L5 nerve root compression. Dr Pik noted the presence of degenerative changes at the other levels of the lumbar spine without nerve root compression at those levels. Dr Pik diagnosed significant right L5 radiculopathy associated with a right foot drop due to the large L4/5 disc herniation. He recommended surgery in the form of a right L4/5 microdiscectomy and rhizolysis, which was intended to address the right leg symptoms.
[20] ARD, pp 40–41.
Dr Pik also provided a report dated 28 February 2019 of the surgery performed on that date.[21] The report does not address the issue of causation, so that it is not necessary to summarise the contents of that document, except to say that Dr Pik observed that the L5 nerve root was severely compressed by a large amount of sequestrated material and Dr Pik confirmed that a right L4/5 laminectomy was performed. Dr Pik’s further report directed to Dr He following a post-surgical review of the respondent adds nothing further to the question of causation.[22]
[21] ARD, pp 42–44.
[22] ARD, p 52.

Dr James Bodel, orthopaedic surgeon

Dr Bodel provided a medico-legal opinion in his report dated 12 April 2019.[23]
[23] ARD, pp 45–51.
Dr Bodel took a history of the respondent’s employment in the Tactical Operations Unit and in the Police Prosecutions Division, as well as the gradual onset of back symptoms over a period of time culminating in a significant flare up of symptoms on 17 August 2015.
Dr Bodel reported that the CT scan and MRI scan undertaken on 8 April 2015 showed clear evidence of significant pathology at L3/4 and L4/5 and to a lesser extent at L5/S1. Dr Bodel said that there was central bulging but no definite nerve root involvement at any level. Dr Bodel noted that with conservative treatment the respondent made steady progress with no radiating pain symptoms except for intermittent pain in the right buttock. Dr Bodel noted that in early 2019, the respondent’s symptoms began to deteriorate and, on 6 February 2019, the respondent further aggravated his back when picking up a box. Dr Bodel reported that for the first time, the respondent developed right sided sciatic pain in the low back, right thigh and down to the foot. Dr Bodel commented that the MRI scan taken on 7 February 2019 showed a very large right-sided disc prolapse at the L5/S1 level which was new pathology. Dr Bodel summarised the history of treatment, including surgery by Dr Pik and the significant benefit that the respondent experienced from the surgery despite the presence of ongoing foot drop. Dr Bodel noted the respondent’s current complaints and findings on physical examination of the respondent.

Dr Bodel discussed the MRI scan dated 7 February 2019. He reported that at the L4/5 level there was a broad-based disc bulge with right paracentral pathology and vertebral canal stenosis particularly at that level. There was significant L5 nerve root compromise. Dr Bodel thought that those findings were consistent with the clinical picture. There was also an L5/S1 disc bulge. Dr Bodel considered that the presence of urinary retention and the radiating right leg pain to the foot with foot drop indicated a significant and urgent clinical presentation requiring surgery. Dr Bodel referred to the opinion of Dr Pik in his report dated 25 February 2019, which was consistent with his own observations.
Dr Bodel opined that the respondent had experienced multiple disc ruptures in his lumbar spine with a significant external disruption occurring in the incident on 6 February 2019. Dr Bodel was of the view that the injury constituted an aggravation, acceleration and deterioration of a previous disease process which was caused by the nature and conditions of the respondent’s employment, as notified on 17 August 2015. Dr Bodel formed the view that the need for surgery resulted from the initial accepted injury on 17 August 2015. Dr Bodel explained that that injury showed clear evidence of disc pathology confirmed by the CT scan and MRI scan undertaken at the time. Dr Bodel said that the disc pathology was already present when the respondent lifted the box at home and that event caused an aggravation, acceleration and deterioration of that disease process which was caused by work.
Dr Bodel confirmed that there was a direct link between the clinical findings and the event described and that there was no evidence of any pre-existing abnormality or condition prior to the work-related injury in 2015. He provided an opinion about the respondent’s capacity for work and that the surgery was reasonably necessary.

THE ARBITRATOR’S REASONS

The Arbitrator noted that the only issue in dispute was whether the respondent’s incapacity for work and need for treatment resulted from the work related injury. The Arbitrator summarised the submissions of both parties and reviewed the evidence before him.
The Arbitrator noted the appellant’s submission that Dr Bodel had based his opinion on an incorrect assessment of the extent to which the respondent’s pre-existing pathology was caused by the injury in 2015 and that Dr Bodel had not taken into account the later non-work related injury in January 2019. The Arbitrator rejected that submission. The Arbitrator reasoned that Dr Bodel had available to him the radiological investigations undertaken in respect of the injury in 2015. The Arbitrator observed that the condition of the lumbar spine at that time included the effects of the injury brought about by the nature of the respondent’s employment in his earlier active role and his subsequent role with Police Prosecutions.
The Arbitrator said that the Workcover certificates of capacity issued after the work injury were evidence that the respondent continued to suffer symptoms in his low back for at least a year after the respondent initially complained to a doctor about his low back. The Arbitrator also noted that the respondent complained of back pain again in December 2017 following prolonged sitting in court.
The Arbitrator referred to the history taken by Dr Bodel, where Dr Bodel noted that the respondent’s symptoms began to deteriorate in early 2019 and, on 6 February 2019, he was at home and picked up a box when he further aggravated his back pain.
The Arbitrator inferred that Dr Bodel was referring to both injurious events in early 2019, which further aggravated the respondent’s back pain.
The Arbitrator observed that Dr Bodel had available to him both the 2015 radiological scans and those undertaken in February 2019 as well as the operation report. The Arbitrator noted that Dr Bodel concluded that there was a direct causal link between the accepted injury and the onset of further symptoms when lifting the box in 2019. The Arbitrator accepted that view.
The Arbitrator referred to the appellant’s argument that there was a discrepancy in Dr He’s replies to the appellant’s questionnaire, which the appellant submitted was that Dr He considered that the current diagnosis was due to a fresh event but then wrote that it was an aggravation of a pre-existing condition. The Arbitrator rejected that argument on the basis that the entry in the clinical notes dated 4 March 2019 indicated that in the conversation with the claims manager, Dr He had clarified her position.
The Arbitrator noted that the opinions of Dr Bodel and Dr He were uncontradicted by any other medical evidence.
The Arbitrator accepted that the respondent suffered an onset of symptoms when he lifted a heavy box and that the incident was not work related. He observed, however, that it was uncontroversial that an injury can have multiple causes, relying on ACQ Pty Ltd v Cook.[24] The Arbitrator accepted Dr He’s opinion that the work related injury in 2015 rendered the respondent more vulnerable to further injury, which in fact occurred. Further, the evidence of Dr Bodel was that the position of the relevant discs following the 2015 injury played a significant role in the onset of the further pathology that arose in the event in February 2019. The Arbitrator was satisfied that Dr Bodel had comprehensively explained the causal connection between the work injury and the additional pathology arising in the February 2019 incident.
[24] [2009] HCA 28; 237 CLR 656; 258 ALR 58; 83 ALJR 986.
The Arbitrator concluded that the incapacity and need for treatment which flowed from the later incident resulted from the injury on 17 August 2015. The Arbitrator proceeded to order the appellant to pay the respondent weekly payments of compensation and to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act.
The Certificate of Determination issued on 21 October 2019 records:
“The Commission determines:
1. The respondent is to pay the applicant the sum of $1770 per week from 7 February 2019 to 30 April 2019 pursuant to section 36 of the Workers Compensation Act 1987 (the 1987 Act) as preserved by clauses 25 and 26 of Part 19H of Schedule 6 to the 1987 Act.
2. The respondent is to pay the reasonably necessary treatment expenses resulting from the subject injury pursuant to section 60 of the 1987 Act including the expenses set out in the Schedule appearing at pages 196 and 197 of the documents attached to the Application to Resolve a Dispute.
3. The respondent is to pay the costs of the applicant as agreed or assessed.”

GROUNDS OF APPEAL

The appellant brings three grounds of appeal, alleging that the Arbitrator erred in:
(a)    accepting the opinions of Dr He and Dr Bodel, when those opinions were not consistent with the weight of the evidence (Ground One);
(b)    accepting the opinions of Dr He and Dr Bodel as to causation between the initial injury on 17 August 2015 and the incapacity and need for surgery (Ground Two), and
(c)    error of law by failing to base his determination of the cause of the injury and need for surgery on the evidence available to him (Ground Three).

SUBMISSIONS

The appellant’s submissions

The appellant’s first and second grounds of appeal allege error on the part of the Arbitrator in accepting the opinions of Dr He and Dr Bodel. The second ground alleges that the Arbitrator erred in finding there was a causal link between initial work related injury and the respondent’s need for surgery and the incapacity from 7 February 2019. The appellant’s submissions on both grounds are made jointly and will be summarised accordingly.

Grounds One and Two

The appellant’s submissions

The appellant submits that the Arbitrator found that the evidence of Dr He was uncontradicted, which was wrong. The appellant says that Dr He was of the view that the respondent suffered a disc prolapse in the 2015 injury and the appellant disputes that that was the case. The appellant refers to the MRI scan dated 17 August 2015 which it says showed a minor broad-based disc bulge at the L5/S1 level, minor foraminal narrowing and no neural compression.
The appellant refers to the questionnaire completed by Dr He on 25 February 2019 in which Dr He erroneously concluded that the respondent suffered a lumbar disc prolapse in the 2015 injury, but conceded that she did not have details of the earlier injury. The appellant points out that Dr He then reported that:
(a)    the injury was a new injury and not a recurrence;
(b)    the onset of symptoms occurred when moving a tyre on 16 January 2019 and on 6 February 2019 when lifting a heavy box, and
(c)    the respondent was then hospitalised due to neurological symptoms and diagnosed with cauda equina.
The appellant indicates that Dr He then concluded that the respondent’s current back condition was an exacerbation of the pre-existing injury sustained on 17 August 2015 which pre-disposed the respondent to further injury and the need for surgery. The appellant also refers to the consultation note dated 4 March 2019 in which Dr He noted that she had clarified with the appellant that her opinion was that the respondent’s condition was an exacerbation of an old work injury.
The appellant submits that Dr He provided no explanation for that conclusion, apart from being of the view that the 2015 injury pre-disposed the respondent to further injury. The appellant contends that, regardless of the history of the disc prolapse having occurred in the 2015 injury, Dr He did not address the fact that the surgery performed was not at the same level of the lumbar spine as the supposed pathology referred to by Dr He. Additionally, the appellant says that Dr He did not explain the earlier inconsistencies in her report.
The appellant submits that Dr He’s opinion on causation is based on an inconsistent premise which was at odds with the available evidence, that is, that the respondent had not suffered a disc prolapse in 2015. The appellant concludes that Dr He’s evidence should therefore be disregarded.
The appellant refers to the evidence of Dr Bodel, which the Arbitrator considered was uncontradicted. The appellant submits that the Arbitrator’s observation that the evidence was uncontradicted was wrong.
The appellant refers to the history recorded by Dr Bodel that the respondent:
(a)    experienced a deterioration of his condition in early 2019;
(b)    aggravated his condition when picking up a heavy box on 6 February 2019, and
(c)    developed right sided sciatic pain from the lower back through the right leg to the foot for the first time.
The appellant notes that Dr Bodel viewed the MRI scan performed on 7 February 2019 and recorded that the scan showed a very large right sided disc prolapse at the L5/S1 level which was not present in the earlier investigations. The appellant points out that Dr Pik, the treating surgeon, reported that there was a large sequestrated right L4/5 disc herniation, and did not refer to any pathology at the L5/S1 level.
The appellant further refers to Dr Bodel’s conclusion that the significant disc disruption that occurred on 6 February 2019 was an aggravation, acceleration and deterioration of the previous work-related degenerative process.
The appellant submits that Dr Bodel did not take a history of the incident on 17 January 2019 when the respondent lifted the tyre, so that Dr Bodel’s opinion is unreliable because he does not have a correct history of the 2019 events. The appellant says that the Arbitrator inferred that Dr Bodel included both incidents when Dr Bodel did not take the history of the incident in January 2019 at all.
The appellant asserts that the respondent’s condition that resulted from the 2015 injury did not “deteriorate” in 2019. The appellant contends that the incidents in 2019 caused injury that required treatment from both Dr He and the Canberra Hospital.
The appellant submits that Dr Bodel did not properly analyse the medical evidence of significant neurological symptoms observed by Dr He and Dr Pik and the Canberra Hospital. The appellant maintains that Dr Bodel did not account for the sudden changes in symptoms and pathology, which were immediately produced after the two lifting incidents in 2019, except that Dr Bodel said that the work-related injury pre-disposed the respondent to further injury.
The appellant refers to the evidence of Dr Pik, which is that the respondent reported sciatic symptoms three weeks earlier. The appellant says that evidence is consistent with the respondent’s presentation to Canberra Hospital on 7 February 2019 after having lifted a box and experiencing the onset of radicular symptoms from the low back to the right foot. The appellant notes that Dr Pik recommended surgery because of the duration of the symptoms and the presence of significant motor deficit. The appellant says that there is no evidence to suggest that the onset of those symptoms occurred prior to the lifting incidents.
The appellant asserts that Dr Pik clearly indicated that the surgery was required to address the neurological symptoms that manifested after the two lifting incidents. The appellant points out that those symptoms were not present prior to those incidents. The appellant says that for those reasons, Dr Bodel’s conclusion that the surgery was required because of the 2015 work related injury was wrong.
The appellant submits that Dr Bodel’s opinion in relation to causation was inconsistent with the weight of the evidence, was unreliable, was wrong and should not be accepted.
The appellant submits that the Arbitrator erred in accepting the opinion of Dr Bodel.

The appellant’s further submissions following receipt of the transcript

The appellant filed further submissions upon receipt of the transcript on 9 December 2019 in the same document as its submissions in reply to the respondent’s submissions filed with the Opposition to the Application to Appeal Against Decision of Arbitrator (opposition). The respondent had filed the opposition well ahead of the timetable. A Delegate of the Registrar appropriately considered that it was unacceptable for the appellant to combine the submissions and that the respondent ought to have the opportunity to respond to the submissions made by the appellant in respect of “the transcript”. The Delegate of the Registrar issued a further timetable. The appellant lodged “supplementary submissions in respect of the transcript” on 3 January 2020. The appellant lodged a further document on 3 February 2020, also purporting to be submissions in relation to the transcript. In that document, the appellant simply disagreed with the respondent’s submissions and sought to rely on its submissions made on 3 January 2020.
Neither the document dated 9 December 2019, nor the document dated 3 January 2020, made any reference whatsoever to the transcript. The submissions do not point to arbitral error but are merely a recitation of the arguments put at arbitration. An appeal is not a rehearing.[25] It is not necessary therefore to consider those submissions.
[25] Section 352(5) of the 1998 Act.

The respondent’s submissions

The respondent takes issue with the appellant’s submission that Dr He’s opinion on causation was inconsistent with the available evidence and should be disregarded. The respondent refers to the appellant’s criticism that Dr He referred to a disc prolapse at L4/5 level having occurred in 2015 when (the appellant says) there was only a minor broad-based disc bulge at L5/S1 with minor foraminal narrowing and no neural compression. The respondent submits that the appellant has disregarded the findings at other levels of the respondent’s lumbar spine shown in the MRI scan dated 17 August 2015. The respondent says the scan disclosed disc bulges at each level, including at the L4/5 level, which was the disc that ultimately required surgery.
The respondent submits that both Dr Atkinson and Mr Benson identified the presence of disc bulging at various levels in their reports respectively dated 19 August 2015 and 3 September 2015 and Mr Benson found significant weakness, especially in the L4/5 region. The respondent further submits that Dr Bodel saw the scans dated 8 April 2015, which showed clear evidence of significant disc pathology at the L3/4 and L4/5 levels of the lumbar spine. The respondent reiterates that the surgery performed was at this level.
The respondent asserts that the term “prolapse” adopted by Dr He refers to a “slipping forward or down” and a “bulging disc, which is also referred to as a slipped or protruding disc, is a condition caused by protrusion, herniation or prolapse of the vertebral disc … which may exert force on a nearby nerve root causing … radiating pain.”[26] The respondent does not cite any medical dictionary or publication that supports that description.
[26] Respondent’s submissions, [7].
The respondent contends that the appellant’s attempt to discredit Dr He is unsustainable, given the difference between a disc bulge and a disc prolapse is “a matter of degrees”, and open to interpretation by trained medical professionals. The respondent asserts that the appellant is not a trained medical expert and no expert evidence was adduced by the appellant to provide an opinion in that regard.
The respondent submits that it is clear that both Dr Bodel and Dr He were of the opinion that the respondent experienced significant pathology at the L4/5 level of his lumbar spine in 2015, which worsened in 2019, requiring surgery.
The respondent refers to the appellant’s submission that the respondent’s condition did not “deteriorate” and submits that the appellant has ignored Dr Bodel’s opinion that it also aggravated, accelerated and exacerbated, as well as deteriorated, the previous disease process which was caused by the 2015 injury. The respondent contends that, in the context of the significant pathology referred to in his report, it was open to Dr Bodel to conclude that the need for surgery arose as a consequence of the 2015 injury.
The respondent further submits that Dr Bodel has the expertise, training and experience to consider radiological scans and had the opportunity to review the scans dated 8 April 2015, which Dr Bodel opined showed significant pathology at both the L3/4 and L4/5 levels. The respondent submits that the appellant does not have the relevant expertise to comment on the scans, the appellant has not seen the scans, and did not qualify a medical expert to comment on them.
The respondent reiterates that it was the L4/5 disc that required surgery.
The respondent submits that Dr Bodel properly analysed the evidence in relation to the significant neurological symptoms of radiculopathy observed by various medical experts. The respondent further submits that while Dr Bodel conceded that the 2019 incidents resulted in the surgery, he was of the strong opinion that the incidents in 2019 caused an aggravation, acceleration, exacerbation and deterioration of the work related lumbosacral pathology.
The respondent asserts that the appellant is attempting to isolate issues between each of the discs in order to show that the pathology arising in 2019 was completely separate to that of the 2015 injury.
The respondent contends that all of the medical evidence before the Arbitrator suggested that:
(a)    the respondent suffered from a serious lumbar spine injury as a result of the nature of his work;
(b)    evidence of the serious nature of the pathology was disclosed in the contemporaneous scans, and
(c)    the respondent was therefore pre-disposed to further injury in the nature of the injuries suffered in 2019.
The respondent refers to the appellant’s submissions that Dr Pik recommended surgery on the basis of the duration of the symptoms and the presence of significant motor deficit. The respondent says that there is no evidence that these conditions pre-dated the two injuries in 2019. The respondent asserts that it could be inferred that the consideration of the length of time the symptoms were present indicates that Dr Pik proposed the surgery in order to address the totality of the respondent’s lumbar spine symptomology.

The respondent submits that Dr Pik’s evidence actually supports the opinion of Dr Bodel. That is, the neurological symptoms, which were not present prior to the two incidents in 2019, related to the discs that were the subject of the significant pre-existing pathology at each level, especially the L4/5 level, which pre-disposed the respondent to further injury.
The respondent concludes that Grounds One and Two of the appeal either misunderstand or mis-state the Arbitrator’s observation that the opinions of Dr Bodel and Dr He are uncontradicted by other evidence. The respondent contends that the Arbitrator was correct to observe that there was no contrary expression of opinion in evidence. The respondent suggests that what the appellant intended to argue was that the opinions of those doctors could be refuted by inferences drawn from the available evidence. The respondent asserts that the Arbitrator made it clear why he did not accept that proposition and his reasons disclose no error of fact or law.

Ground Three: The Arbitrator erred in law by failing to determine the question of causation in accordance with the available evidence

The appellant’s submissions

The appellant submits that the Arbitrator’s acceptance that the respondent’s symptoms occurred when lifting the box is uncontroversial and that there is no controversy that there can be multiple causes of injury. The appellant says that the Arbitrator relied on Dr Bodel for support in relation to the causal connection when, for the reasons set out above in respect of Grounds One and Two, Dr Bodel’s evidence should have been disregarded. The appellant contends that the Arbitrator was required to determine whether the respondent’s injury and need for surgery arose from the 2015 incident or from the non-work related lifting incidents. The appellant asserts that it was insufficient for him to find that there can be multiple causes. The appellant says that what was required was a determination of the cause of the injury and the need for surgery. The appellant refers to Murphy v Allity Management Services Pty Limited,[27] which is authority for the proposition that the worker needs to establish that the work related injury must have materially contributed to the need for surgery. The appellant submits that the Arbitrator failed to determine that the 2015 injury materially contributed to the need for surgery.
[27] [2015] NSWWCCPD 49 (Murphy).
The appellant submits that the evidence does not show that the 2015 injury materially contributed to the need for surgery. The appellant says that Dr Pik’s opinion was that the surgery was necessary to address the neurological symptoms, and submits that those symptoms did not arise, and the surgery was not required, until after the two lifting incidents.
The appellant concludes that the Arbitrator erred in law by failing to determine the cause of the respondent’s injury and need for surgery.

The respondent’s submissions

The respondent submits that, on the basis of his submissions in respect of Grounds One and Two, the Arbitrator’s reliance on the opinion of Dr Bodel was sound.
The respondent rejects the appellant’s argument that the Arbitrator was required to do more than find that there can be multiple causes for the need for surgery and needed to determine whether the respondent’s injuries in 2019 arose from the 2015 injury or from the non-work related lifting incidents. The respondent says that the appellant’s argument is completely erroneous, and the Arbitrator was entitled to determine the matter as he did. The respondent submits that the issue of causation was addressed by Dr Bodel and the Arbitrator, that is, that Dr Bodel opined, and the Arbitrator found, that the incidents occurring in 2019 constituted an aggravation, acceleration, exacerbation and deterioration of the respondent’s work related injury occurring in 2015. The respondent says that it follows from that finding that the need for surgery following the lifting incidents related to the accepted work injury.
The respondent refers to the appellant’s assertion that the Arbitrator failed to make a finding that the 2015 injury materially contributed to the need for surgery, in accordance with Murphy. The respondent contends that in finding the 2019 incidents aggravated, accelerated, exacerbated and deteriorated the respondent’s 2015 injury, the Arbitrator did in fact find the 2015 injury made a material contribution. The respondent submits that there was no issue raised that the surgery was necessary so that the finding made by the Arbitrator was all that was required. The respondent explains that just because the surgery was not required until after the 2019 incidents, that does not mean that the surgery is not related to the 2015 injury. This is especially so in the circumstances where the Arbitrator found an aggravation, acceleration, exacerbation and deterioration of the respondent’s work related injury occurred.
The respondent submits that the appellant has not identified any novus actus interveniens, or new event, that suggests a break in the chain of causation and there is no evidence to that effect.
The respondent contends that the appellant has not established that the inference drawn by the Arbitrator, which was unfavourable to the appellant, was wrong. The respondent says that the Arbitrator clearly approached the matter on a commonsense basis in accordance with Kooragang Cement Pty Ltd v Bates,[28] and the commonsense evaluation of the facts supports the Arbitrator’s conclusion. The respondent asserts that there was no break in the chain of causation because the risk of recurrent lumbar problems as a consequence of the accepted disease injury was clearly foreseeable.
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The respondent maintains that it was open to the Arbitrator to find that the respondent’s 2015 injury made him vulnerable to further injury. It was also open to the Arbitrator to find that the respondent’s ultimate incapacity resulted from the 2015 injury and the later injury resulted from the first injury, relying on Cluff v Dorahy Bros (Wholesale) Pty Ltd[29] and Conkey & Sons Ltd v Miller.[30]
[29] [1979] 2 NSWLR 435 (Cluff).
[30] (1977) 16 ALR 479; 51 ALJR 583 (Conkey).
The respondent submits that it is not incumbent upon him to identify the specific pathology to which the surgery was directed and that the pathology pre-existed the events in 2019. The respondent says that the thrust of the appellant’s argument is that the events in 2019 were the cause of significant symptoms that had not previously been associated with the accepted injury. The respondent asserts that such an argument is not to the point. The respondent contends that the question to be considered is whether the work related injury materially contributed to the need for surgery. The respondent says that the Arbitrator took account of the observations of Roche DP in Murphy, which the respondent submits is on “all fours” with the facts in this case. The respondent particularly refers to the passage from Murphy where Roche DP observed that “even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes.”[31]
[31] Murphy, [57].
The respondent contends that the Arbitrator’s reasons were concisely set out and were logical, in accordance with the relevant principles, and persuasive.
The respondent submits that the appellant has failed to identify any error in the Arbitrator’s finding in favour of the respondent.

The appellant’s submissions in reply

The appellant relies on its submissions dated 3 January 2020. While those submissions purport to be in response to the respondent’s submissions they are substantially not. The appellant reiterates its primary submissions and also makes further new submissions as to why the Arbitrator erred. The opportunity to respond to the respondent’s submissions is limited to that exercise and is not an opportunity to enlarge upon submissions already made, or to make further submissions at large.
Consequently, those submissions which do not respond to the respondent’s submissions are disregarded.
Submissions made on 3 January 2020 that appear to respond to those of the respondent are as follows:
(a)    while the 2015 injury was not disputed, the nature of the injury pleaded was an “aggravation of back injury with a deemed date of 17 August 2015”,[32] which suggests the respondent relied on the 2019 injury as being an aggravation of a disease pursuant to s 4(b)(ii) of the 1987 Act;
(b)    the assertion made by the respondent and Dr Bodel that the respondent suffered significant disc pathology at the L3/4, L4/5 and L5/S1 levels in the 2015 injury was unsupportable in the context of both the radiologist’s report of the MRI scan dated 17 August 2015, and the opinions of Dr Atkinson and Mr Benson. Each of those medical experts described the MRI scan results as showing “mild broad-based” degenerative disc bulging;
(c)    there was no evidence of injury to the discs as a result of the 2015 injury, and
(d)    the evidence did not establish that the injury in 2015 pre-disposed the respondent to further injury, but if it did, Kirby P’s observations in Kooragang were that the mere fact that events occurred which pre-disposed the worker to further injury was not, of itself, sufficient to establish that the incapacity resulted from that injury.[33]
[32] ARD, Part 4 – Injury Description.
[33] Kooragang, per Kirby P, 463.

THE RELIEF SOUGHT

The appellant asks to have the Arbitrator’s Certificate of Determination revoked and an award entered in its favour. The appellant is silent in respect of an order as to costs.
The respondent seeks to have the appeal dismissed and the Arbitrator’s Certificate of Determination confirmed. The respondent also applies for his legal costs of the appeal and the proceedings below to be paid by the appellant.

CONSIDERATION

The first two grounds of appeal disclose that the appellant alleges error on the part of the Arbitrator in his conclusions as to the acceptance of the opinions of Dr He and Dr Bodel and the weight to be afforded to that evidence, in circumstances where the evidence compelled the Arbitrator to arrive at a different conclusion.
The decision that the Arbitrator was required to make was a decision as to causation, that is, a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts.
The principles to be applied in relation to an appeal from a primary judge’s findings of fact were observed by Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic[34] as follows (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[35]
[34] [2008] NSWCA 175; 72 NSWLR 728 (Najdovski).
[35] Najdovski, [22].
Section 352(1) of the 1998 Act allows for an appeal against a decision of an arbitrator to a Presidential member. Section 352(5) of the 1998 Act limits that right of appeal to the establishment of error of fact, law or discretion. Consequently, the application of the above principles needs to be considered in the context of the Commission and its statutory power to intervene.
In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[36] are relevant and have been consistently applied in the Commission. Those principles were summarised by Deputy President Roche in Raulston v Toll Pty Ltd[37] as follows:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘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.’”
[36] (1966) 39 ALJR 505.
[37] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19]–[20].
Adopting those principles, for the purposes of Grounds One and Two of this appeal, the appellant must show that the Arbitrator overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Arbitrator is so preponderant that it establishes that the Arbitrator’s decision is wrong.

Ground One: Did the Arbitrator err in accepting the opinions of Dr He and Dr Bodel when they were not consistent with the weight of the evidence?

In support of this ground, the appellant refers to the MRI scan report dated 17 August 2015, the report of Dr Atkinson dated 19 August 2015 and the report of Mr Benson dated 3 September 2015. The appellant also relies on the factual evidence that there were no neurological symptoms and no evidence of radiculopathy prior to the events in 2019.
The appellant submits that no weight should be afforded to the opinion of Dr Bodel because Dr Bodel did not have a correct history, in that he did not take a history of the incident on 16 January 2019 when the respondent lifted a tyre. The Arbitrator considered that submission. The Arbitrator referred to Dr Bodel’s report and observed that:
“Dr Bodel specifically noted ‘In early 2019 however his pain began to deteriorate. Unfortunately on 6 February 2019 he was at home and he was ‘picking up a box’ when he further aggravated his back pain.’ I infer that Dr Bodel was referring to both an event in “early 2019” which is presumably the incident involving the tyre and the later incident when Mr Goonan ‘further aggravated’ his back pain.”[38]
[38] Goonan v State of New South Wales [2019] NSWWCC 340 (Reasons), [53].
While Dr Bodel did not specifically refer to the incident on 16 January 2019, he did record that there was a deterioration in the respondent’s symptoms at that time and prior to the incident on 6 February 2019. The Arbitrator inferred that Dr Bodel was referring to both incidents in 2019.
The appellant contends that the respondent’s low back condition did not “deteriorate,” it was the subject of a further incident. I do not accept that Dr Bodel’s reference to “deterioration” excludes the worsening of symptoms from a frank incident. In fact, the respondent’s statement evidence discloses that his low back condition worsened, or deteriorated following the incident in January 2019 albeit ameliorated by analgesic medication within two weeks.
The appellant does not identify an opposing inference that the Arbitrator should have drawn, particularly one that was so preponderant that the inference drawn by the Arbitrator must be wrong, as described by Roche DP in Raulston. In those circumstances, I do not accept that the inference drawn by the Arbitrator was not available to him.
Even if I am wrong, and the prevailing inference could be drawn that Dr Bodel did not have a history of the incident on 16 January 2019, I am of the view that an absence of such history is not critical to the weight to be afforded to and indeed the acceptance of the opinion of Dr Bodel.
The respondent’s evidence was that he lifted a tyre on 16 January 2019 and suffered right sided pain in his lower back. He said:
“On or about 16 January 2019, I was lifting a tyre outside at home when I suffered pain in the right side of my lower back.
On or about 17 January 2019, I consulted my general practitioner (‘GP’), Dr He as my back was sore and to get pain assistance to help me get through my law degree exams. Dr He prescribed me pain killers. Within two weeks, the pain had subsided. I only consulted my GP on that one occasion and did not require any further medical assistance.
On or about 6 February 2019, I was lifting a heavy box outside at work when I aggravated my injury causing severe right sided sciatica pain. I suffered pain in my buttocks and pain that was radiating down my right leg to my foot. I was getting numbness and a tingling sensation in my right leg. I suffered weakness in my right foot, ankle and had ‘drop foot.’”[39]
[39] Respondent’s statement, 25 June 2019, ARD, p 2, [12]–[14].
The appellant’s case at arbitration and on this appeal is that there was no evidence of a disc herniation or radiculopathy prior to the incident on 6 February 2019.
In determining whether the 2015 injury causally contributed to the respondent’s incapacity and need for surgery, the timing of the onset of those symptoms is not determinative.[40]
[40] Kooragang.
Given the respondent’s evidence of the impact of the incident on 16 January 2019 and the absence of radiological evidence flowing from that incident and prior to the incident, I do not consider that the absence of a history of the incident on 6 January 2019 is of sufficient significance to discount the opinion of Dr Bodel.
In Paric v John Holland (Constructions) Pty Ltd,[41] the High Court observed (citations omitted):
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based … [I]t is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
[41] [1985] HCA 58; 62 ALR 85; 59 ALJR 844, [9].
The appellant further criticises the opinion of Dr Bodel on the basis of his description of the broad-based disc bulges as “significant”, when the radiologist and Dr Atkinson described them as “mild”, and Mr Benson considered they were “minor.” The report of the MRI scan dated 17 August 2015 recorded mild broad-based disc bulges of the L3/4 and L4/5 discs of the respondent’s lumbar spine and a minor disc bulge at the L5/S1 level. Dr Atkinson also reported mild disc bulges at two levels. Mr Benson, a chiropractor who, by his title, does not appear to hold a degree in medicine, described the disc bulges as minor. The qualifications of the witness are relevant, and it is not erroneous to prefer the evidence of an orthopaedic surgeon to that of a chiropractor.[42]
[42] Grace v Elmasri [2009] VSCA 111, [81]–[87].

As the Arbitrator observed, Dr Bodel had available to him the original scans from 2015. Dr Bodel viewed those scans and was not reliant upon a radiologist’s reporting. Dr Bodel, as a specialist orthopaedic surgeon, is well placed to make his own observations of the pathology apparent on those scans. While terms such as “mild” or “minor” are terms that denote a medical class within which the pathology falls, the observation that the pathology is “significant” is a descriptive term. It was open to Dr Bodel to describe the pathology as he observed it. There is no medical opinion offered by the appellant to contest that the pathology seen could be so described.
The appellant refers to the history recorded by Dr Bodel that the MRI scan dated 7 February 2019 showed a very large disc prolapse at the L5/S1 level which was not present in the earlier scans, when Dr Pik diagnosed a sequestrated disc herniation at the L4/5 level, which was the disc the subject of the surgery.
The Arbitrator noted the above history, but also noted Dr Bodel’s opinion that the MRI scan carried out showed:
“broad-based bulging at the L4/5 level with some right paracentral disc pathology. The report confirms acquired vertebral canal stenosis particularly at the L4/5 level which is the most significant abnormality with significant nerve root compromise of the right L5 nerve root.”[43]
[43] ARD, p 49.
The Arbitrator further noted that that those findings were confirmed on operation by Dr Pik.[44]
[44] Reasons, [45].
Having considered that opinion, the Arbitrator accepted it. Dr Bodel’s ultimate opinion was that the particularly affected level of the respondent’s lumbar spine was at the L4/5 level causing L5 radiculopathy, which accorded with the findings made by Dr Pik, the operating surgeon. Despite the history recorded earlier in the report that the affected disc was at the L5/S1 level, that incorrect comment clearly did not infect Dr Bodel’s ultimate opinion.
There is no basis for the submission that the Arbitrator erred by placing undue weight upon the opinion of Dr Bodel and it was open to the Arbitrator to accept that evidence.
The appellant contends that the Arbitrator further erred in placing weight on the opinion of Dr He. The appellant points to the following alleged errors:
(a)    the Arbitrator’s conclusion that Dr He’s evidence was uncontradicted was wrong;
(b)    Dr He premised her opinion on the assumed fact that the respondent suffered a disc prolapse in 2015, and
(c)    Dr He’s opinion was internally inconsistent.
The Arbitrator said that the opinions of Dr He and Dr Bodel were “uncontradicted by any medical evidence.”[45]
[45] Reasons, [56].
The appellant refers to the evidence of the 2015 MRI scan, which it says did not disclose a disc “prolapse”, and says that contrary to Dr He’s view, no such prolapse was evident at the L5/S1 level.
The respondent contends that the Arbitrator’s observation should be read to say that there was no contrary expression of medical opinion.
There certainly was no expression of medical opinion to controvert the opinion of Dr He or Dr Bodel, as the only opinions on causation before the Arbitrator were those adduced by the respondent. At the end of the day, whether the pathology identified in the 2015 scans as “mild broad-based disc bulging” at any level of the spine constituted a disc prolapse is a matter for medical opinion. Dr He provided that diagnosis, although on what basis she did so is unclear. The appellant has, however, not pointed to any medical evidence or authorised medical dictionary definition that indicates that that was a wrong diagnosis. It cannot be said, therefore, that Dr He’s view was contrary to the evidence, that is, the MRI scans undertaken in 2015. The Arbitrator was correct to observe that Dr He’s opinion was uncontradicted.
The appellant contends that Dr He’s opinion was internally inconsistent. The basis of the inconsistency is said to be that in the responses to the questionnaire, Dr He described the incident on 6 February 2019 as a new incident, but then referred to an exacerbation of the previous work injury.
It is important to consider that evidence from Dr He in the context in which it was provided.
The questionnaire defined a “new injury” as a new incident that has caused a new injury. It gave as an example a worker who had suffered a previous back injury and then falls, injuring his wrist. Dr He was asked to provide a diagnosis of the previous injury and to describe the symptoms the respondent was experiencing when he returned to suitable work in April 2019. Dr He was then asked, using the above definition, to tick one of the boxes listed as the cause of the of the onset of symptoms. Dr He ticked the box which was assigned to the following commentary:
“A new incident, event or factor has exacerbated the worker’s original injury …”.[46]
[46] ARD, p 37, [3].
The Arbitrator rejected the appellant’s submission on this point on the basis that Dr He had explained her opinion as detailed in the consultation note dated 4 March 2019.[47]
[47] ARD, p 111.
Not only does the clinical note dated 4 March 2019 explain Dr He’s opinion, when considering the context in which Dr He described the incident as a “new injury,” it is patently incorrect to assert that Dr He’s evidence is internally inconsistent.
The appellant also asserts that Dr He’s opinion should be rejected because it was not supported by reasons. The evidence must be assessed in the context in which it was given. Dr He was not asked in that document to explain her opinion. While an opinion which is not founded in reasons will be of little weight, it is open to the Arbitrator to accept it in circumstances where it is in concert with other reasoned opinions, in this case that of Dr Bodel, and not inconsistent with competing medical opinion.
In conclusion, the Arbitrator did not afford the evidence of Dr Bodel and Dr He undue weight or fail to give other evidence sufficient weight. It follows that Ground One of the Appeal fails.

Ground Two: Did the Arbitrator err in accepting the opinions of Dr He and Dr Bodel as to causation between the initial injury on 17 August 2015 and the incapacity and need for surgery?

The appellant makes the same submissions in respect of this ground of appeal as those made in respect of Ground One. That is, the appellant maintains that the Arbitrator ought not to have accepted the opinions of both Dr Bodel and Dr He because of the matters identified above, namely:
(a) Dr Bodel’s opinion could not be accepted because:
(i)the history recorded was not correct;
(ii)the pathology was not at the L5/S1 level as suggested, and
(iii)Dr Bodel did not take account of the onset of severe radicular symptoms following the event on 6 February 2019, which were not previously experienced and could not constitute a “deterioration”;
(b) Dr He’s opinion could not be accepted because it was internally inconsistent and identified the 2015 injury as an L5/S1 disc prolapse.
I reject the appellant’s submissions for the same reasons as identified under Ground One above.
The Arbitrator gave consideration to the opinion of Dr Bodel that the position of the discs following the 2015 injury played a significant role in the onset of the further pathology which was consequent upon the injury on 6 February 2019. The Arbitrator accepted that Dr Bodel had provided a comprehensive explanation of the casual connection between the two injuries.
Dr Bodel’s reasoning process was that:
“Mr Goonan has had recurring episodes of back pain over a number of years since an incident that occurred at work on 17 August 2015. Initially his pain was intermittent and in the back and buttocks only. He continued to cope quite well until the pain worsened at that time after moving to the position of a police prosecutor. The prolonged sitting at a desk doing computer based work aggravated the symptoms.
He was still functioning reasonably well with ongoing mechanical backache and no significant sciatic radiation of the pain until 06 February 2019 when he picked up a box at home and had an immediate onset of severe right-sided sciatica with pain all the way to the foot associated with a foot drop and also urinary retention.
He requires semi-urgent surgical decompression.
…
This gentleman has had multiple disc ruptures in the lumbosacral region with a significant external disc disruption that occurred in the injury on 06 February 2019. That aspect of injury is an aggravation, acceleration, exacerbation and deterioration of a previous disease process which was caused by work as a result of the nature and conditions of work in general and reported on 17 August 2015.
…
I do consider that this gentleman’s need for surgery has arisen as a consequence of the initial accepted injury on 17 August 2015. That injury clearly showed evidence of disc pathology and that is evident in both a CT scan and an MRI scan done at that time. He developed the sciatic radiation of the pain when lifting the box at home. The disc pathology was already present at that time as a result of the work related injury and the event at home has caused an aggravation, acceleration, exacerbation and deterioration of that disease process being the lumbosacral disc pathology which was caused by work.
…
I confirm that the injury in this circumstance is indeed the aggravation, acceleration, exacerbation and deterioration of a disease process. The disease process is the disc pathology that is clearly evident at L3/4 and L4/5 in particular which occurred at work.
…
There is a direct causal link between the clinical findings here today and the accident as described.”[48]
[48] Dr Bodel’s report of 12 April 2019, ARD, pp 49–50.
The fundamental principles of the common law concerning admissibility of evidence require that the evidence must be logical and probative.[49] The history recorded by Dr Bodel was accurate and the process of reasoning was logical. It was open to the Arbitrator to accept the opinion of Dr Bodel.
[49] McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421, [128].
The Arbitrator accepted Dr He’s opinion that the work related injury in 2015 made the respondent more vulnerable to further injury and rejected the appellant’s submission that there were inconsistencies in Dr He’s opinion. For the reasons expressed by the Arbitrator and the further reasons given by me above, the Arbitrator did not err in rejecting the appellant’s submission that Dr He’s evidence was internally inconsistent.
It was open to the Arbitrator to accept the evidence of both Dr Bodel and Dr He. It follows that Ground Two of the appeal fails.

Ground Three: Did the Arbitrator err in law by failing to base his determination of cause of the injury and the need for surgery on the evidence available to him?

The evidence and its probative value have been exhaustively discussed above.
It is relevant to consider the authorities cited in the parties’ submissions.
InCluff,Reynolds JA (Hope and Glass JJA agreeing) considered the issue of causation where a worker had an injury with one employer which left him vulnerable to increased disability in further work with a second employer. The Court observed:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.
It is also not open to doubt that, if a worker receives a disability in the employment of A, and subsequently receives an injury in the employment of B which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury.”[50]
[50] Cluff, 439.
In State Rail Authority of NSW v Cowles,[51] Roche DP held that the only difference between the facts in that case and Cluff was that the subsequent incidents did not happen at work, however the principle was the same and applied. Roche DP referred to Conkey as also being relevant authority supporting that principle.
[51] [2010] NSWWCCPD 114.
The High Court applied the principles in Conkey in Calman v Commissioner of Police,[52] where Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ held (excluding citations):
“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”[53]
[52] [1999] HCA 60; 167 ALR 91 (Calman).
[53] Calman, [38].
The appellant in this case contends that the Arbitrator was required to determine whether the respondent’s injury and need for surgery arose from the 2015 injury or from the non-work related incidents in 2019. The appellant submits that the respondent was required to prove that the 2015 injury materially contributed to the need for surgery (citing Murphy), and it was not sufficient for the Arbitrator to merely indicate that an injury can have multiple causes.
The respondent submits that the Arbitrator’s finding that the 2019 injury aggravated, accelerated, exacerbated and deteriorated the 2015 injury constituted a finding that the 2015 injury made a material contribution.
The facts in Murphy are not dissimilar to the facts in this case. In Murphy, the worker suffered a work related injury and subsequently suffered a further, non-work related injury in a fall at a supermarket. Following that fall, she required surgery.
Roche DP made the following observations as to what is required to establish that the injury “materially contributed to” the need for surgery (citations omitted):
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat MsMurphy’s claim. That is because a condition can have multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphyonly has to establish, applying the commonsense test of causation, that the treatment is reasonably necessary ‘as a result of’ the injury. That is, she has to establish that the injury materially contributed to the need for the surgery.”[54]
[54] Murphy, [57]–[58].
It is apparent from the above passage that the phrase “results from” incorporates the expression “materially contributes to”.
While the Arbitrator in this case did not express his findings in terms of the need for surgery having been “materially contributed to” by the 2015 injury, his finding that it resulted from the injury was sufficient. Such a finding is consistent with a long line of authorities, including Kooragang, Cluff, Conkey and Calman discussed above. The finding was available to him on the basis of the reasoned opinion provided by Dr Bodel.
It follows that Ground Three of the appeal fails.

CONCLUSION

The appellant has not succeeded in identifying error on the part of the Arbitrator as required by s 352(5) of the 1998 Act and the appeal fails. The Arbitrator’s Certificate of Determination dated 21 October 2019 is confirmed.

DECISION

The Arbitrator’s Certificate of Determination dated 21 October 2019 is confirmed.
The appellant is to pay the respondent’s costs.

Elizabeth Wood

DEPUTY PRESIDENT

19 May 2020