Summers v Sydney International Container Terminals Pty Limited t/as Hutchison Ports

[2021] NSWPICPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Summers v Sydney International Container Terminals Pty Limited t/as Hutchison Ports [2021] NSWPICPD 35

APPELLANT:

Daniel Summers

RESPONDENT:

Sydney International Container Terminals Pty Limited t/as Hutchison Ports

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-6311/20

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

4 November 2021

ORDERS MADE ON APPEAL:

1.    The Arbitrator’s determination of 22 January 2021 is revoked.

2.    In accordance with s 352(6A) of the 1998 Act, upon Redetermination, I find that the proposed surgery recommended by Dr Singh, namely the proposed anterior cervical decompression and fusion, is reasonably necessary and as a result I enter an award in favour of the appellant with respect to the proposed surgery.

CATCHWORDS:

WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987- whether the proposed surgery is reasonably necessary as a result of injury - Diab v NRMA Ltd [2014] NSWWCCPD 72 considered and applied

HEARING:

27 October 2021

REPRESENTATION:

Appellant:

Mr C Tanner, counsel

McNally Jones Staff Lawyers

Respondent:

Mr R Stanton, counsel

Rankin Ellison Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr J Wynyard

DATE OF MEMBER’S DECISION:

22 January 2021

INTRODUCTION AND BACKGROUND

1. Mr Daniel Summers (the appellant) injured his neck and back during the course of his employment as a stevedore with Sydney International Container Terminals Pty Limited t/as Hutchison Ports (the respondent). The dispute ruled upon by the Arbitrator took place within a very narrow compass. At issue was whether or not surgery proposed by the appellant’s treating specialist, Dr Singh, a proposed anterior cervical decompression and fusion, was reasonably necessary as a result of the injury the appellant had been deemed to have received on 10 October 2019. The Arbitrator found that the proposed surgery was not reasonably necessary and entered an award in favour of the respondent with respect to that claim. The appellant now challenges that decision in this appeal.

TRANSITIONAL MATTERS

1. After the current appeal was lodged on 19 February 2021, the Workers Compensation Commission was abolished.[1] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. Given his appointment at the time of this decision, I will refer to the Member in his then capacity as Arbitrator.

   [1] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020 (the 2020 Act).

   [2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

HEARING OF THE APPEAL

1. After reviewing the written submissions filed by the parties, I was of the view that I would be assisted by further oral submissions. Given the existence of the pandemic, the oral hearing was held on the Commission’s audio-visual platform, MS Teams, on Wednesday 27 October 2021. Mr Tanner of counsel appeared for the appellant and Mr Stanton of counsel appeared for the respondent to the appeal.

THRESHOLD MATTERS

1. 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 EVIDENCE

The appellant’s statement evidence

1. The appellant provided an initial statement dated 15 June 2020.[3] He described his past employment and medical history and provided detail on the nature of the work and duties he completed whilst working for the respondent since commencement in September 2016.

   [3] Application to Resolve a Dispute (ARD), pp 14-19.

2. The appellant asserted that in about October 2018 he developed pains in his lower back during the course of his work in the straddle cranes. As a result of this pain, the appellant indicated that he was off work from 11 October 2018 until 14 October 2018 and was then certified fit for light duties by Dr Kolas at Botany Medical Centre. The appellant stated that he remained on light duties for the next nine months.

3. On 16 November 2018, the appellant stated that he changed his General Practitioner to Dr Rita Almohty. Under her care, the appellant said that he was referred to see Dr Andreas Loefler, an orthopaedic specialist, on 11 April 2019. The appellant asserted that he only saw Dr Loefler on one occasion and that Dr Loefler had indicated his “future was uncertain and [he] might have to consider surgery, depending on what happened.”[4] The appellant said that he returned to full duties in about July 2019.

   [4] ARD, p 16.

4. It is recorded that in October 2019, the appellant noticed the onset of increasing pain in his lower back and also in his neck. The appellant said that the neck pains came on after working 4 days straight on the straddles. Despite the pain, the appellant stated that he continued working. On the fourth day in the straddle crane the appellant said that he helped finish the lashing. On the following day, the appellant recorded that he had “quite severe pain” in his neck and back and that the neck pain “radiated up over the back of [his] head and to the right side.”[5] It was also recorded by the appellant that he began to suffer from migraine type headaches.

   [5] ARD, p 17.

5. The appellant stated that on 9 October 2019 he was allocated back on the straddle crane and had asked the shift leader whether he could be allocated alternate duties. The appellant said that he was told if he could not do straddles, he would need to go and get a certificate. The appellant recorded that he went home that day and saw Dr Almohty on 14 October 2019. It was said by the appellant that Dr Almohty gave him a certificate for light duties and that the insurance company accepted this claim and paid him the make-up pay for three days off work. The appellant said that Dr Almohty referred him to a sports physician, Dr Seamus Dalton, in November 2019.

6. The appellant recorded that on 4 December 2019 he saw Dr Eric Lim of Parramatta who became his nominated treating doctor from that date. The appellant indicated that he changed doctors because he was anxious to have tests done to determine the cause of his neck and back problems. The appellant stated that Dr Lim gave him a Workcover certificate, putting him off work from that date and that he has not worked since.

7. The appellant asserted that Dr Lim sent him for scans on his neck and back on 9 and 10 December 2019 and referred him to see a spinal surgeon, Dr Bhisham Singh. The appellant described receiving cortisone injections into his neck and back, which provided good relief. The appellant also stated that he had exhausted all other therapy, “including physiotherapy, home exercises, cortisone needles” and would like to proceed with the surgery recommended by Dr Singh to relieve the pain in his neck.[6]

   [6] ARD, p 18.

8. The appellant stated that following an examination with Dr Stephen Rimmer at the request of the insurer on 16 April 2020, he received a note from icare indicating they would not pay for the surgery and were going to cease weekly compensation payments. The appellant concluded his statement indicating that he had been unfit for work since 4 December 2019 and that on 12 June 2020 his employment was terminated by the respondent on the basis that his injury prevented him from performing the inherent requirements of the role.

X-ray cervical spine - 31 October 2019

1. An x-ray of the cervical spine was conducted on 31 October 2019 and a report on the x-ray was prepared by Dr Himanshu Kaushik and directed to Dr Almohty.[7] The clinical notes recorded “lower neck pain, worse over the last two weeks.”

   [7] ARD, p 44.

2. In the report of the x-ray, it is recorded by Dr Kaushik that “there is significant osteophyte encroachment of the right C3-4 exit foramen, probably impinging the right C4 nerve root.”[8]

   [8] ARD, p 44.

3. The report was concluded with the following comment:

   “Lower cervical C6-7 spondylosis of moderate severity.

   Osteophyte encroachment of the right C3-4 exist [sic, exit] foramen probably compressing the right C4 nerve root. No fracture seen.”[9]

   [9] ARD, p 44.

Dr Seamus Dalton, specialist in rehabilitation medicine

1. Dr Seamus Dalton, on referral from Dr Almohty, examined the appellant and provided a report dated 25 November 2019.[10] Dr Dalton’s report recorded the history of the appellant’s back injury in October 2018 and the onset of the neck and back injury in October 2019. Dr Dalton described that the appellant’s “neck stiffness and pain [had] eased” but was “not resolving” and stated that the appellant was still getting “bilateral stiffness and soreness, worse on the right side with some periscapular discomfort but no upper limb symptoms.”[11]

   [10] Reply to Application to Resolve a Dispute (reply), pp 28-29.

   [11] Reply, p 28.

2. Dr Dalton observed in the examination of the appellant that “[o]ther than mild restriction of right rotation[,] cervical spine movements were unrestricted with no guarding or paravertebral spasm”[12] and noted that a significant finding was that the appellant lacked strength and endurance in the scapular stabilisers.

   [12] Reply, p 29.

3. Dr Dalton recorded that the radiological investigation of the appellant’s cervical spine had revealed “spondylotic change, particularly at C6/7, with some narrowing of the right C3/4 neural exit foramen.”[13]

   [13] Reply, p 29.

4. Dr Dalton opined that the appellant’s symptoms were consistent with “symptomatic cervical facet joint arthropathy.” He also noted that there was no sign of radiculopathy and that the appellant’s pain localised to the right upper to mid cervical spine but there were no localising features. Dr Dalton asserted that this was heightened by the fact that the appellant was “actually a little hypermobile with poor core and scapular stability and he really needs some comprehensive strengthening exercises.”[14]

   [14] Reply, p 29.

5. Dr Dalton concluded his report by referring the appellant to an exercise physiologist for some guidance to work on “building up his core strength, scapular stability and better postural awareness.” Dr Dalton stated that for now he would not recommend any other intervention but that if symptoms did not settle “then we do have the option of further manual therapy or a CT guided injection which hopefully will not be required.”[15]

   [15] Reply, p 29.

MRI cervical spine - 9 December 2019

1. Dr Philip Herald, on referral from Dr Lim, conducted an MRI of the cervical spine on 9 December 2019.[16]

   [16] ARD, p 45.

2. At the C3/4 level, the report found:

   “Mild disc height narrowing and disc desiccation and a 3mm broad-based posterior disc protrusion extending to the right neural exit foramen with mild right C4 neural exit foraminal stenosis.”[17]

   [17] ARD, p 45.

3. The report concluded:

   “Degenerative changes greatest at the C5/6 and C6/7 vertebral body endplates/discs. Mild right C4 neural exit foraminal stenosis.”[18]

   [18] ARD, p 45.

MRI lumbar spine - 10 December 2019

1. Dr Lia Rossiter-Thornton, on referral from Dr Lim, conducted an MRI of the lumbar spine on 10 December 2019.[19] The report concluded:

   “Degenerative changes as described, with narrowing at the L5/S1 neural exit foramina bilaterally.”

   [19] ARD, pp 47–48.

Whole body nuclear bone scan – 23 January 2020

1. On referral from Dr Singh, Dr Herald conducted a whole-body nuclear bone scan on 23 January 2020. In the findings section of the report, it is stated that “there is uptake consistent with arthropathy involving the:

   -   Right acromioclavicular joint

   -   Right C3/4, facet joint (severe)

   -   Right C3/4, uncovertebral joint

   -   C5/6 and C6/7, vertebral body endplates

   -   L5/S1, vertebral body endplates”.[20]

   [20] ARD, p 49

2. The report concluded “uptake consistent with arthritic change greatest at the right C3/4 facet joint and the L5/S1 vertebral body endplate.”[21]

   [21] ARD, p 49.

CT-guided right C3/4 intervertebral foramen corticosteroid

1. In a report dated 28 January 2020 from Dr Herald directed to Dr Singh, it was recorded that a right C4 perineural corticosteroid and local anaesthetic injection was performed and was “well tolerated” by the appellant.[22]

   [22] ARD, p 51.

Dr Bhisham Singh, orthopaedic and spine surgeon

1. Dr Singh reported to the appellant’s treating general practitioner, Dr Lim. Dr Singh provided an initial report to Dr Lim dated 5 February 2020 containing a detailed clinical note of his initial examination of the appellant on 21 January 2020.[23] In the clinical note, Dr Singh referred to the radiographic studies available to him at the examination which was the MRI scan of the cervical and lumbar spine and stated that the imaging revealed “cervical spondylosis as well as C3/4 neuro foraminal stenosis.”[24]

   [23] ARD, pp 22–24.

   [24] ARD, p 24.

2. Dr Singh then recorded that he had a discussion with the appellant regarding the radiographic and clinical findings and stated that the appellant could trial a right C3/4 perineural injection as a diagnostic and therapeutic tool as well as an L5/S1 epidural injection. Dr Singh asserted that he would review the appellant with a nuclear medicine bone scan of the spine to identify further surgical or injection targets in the lumbar spine.

3. In his next report to Dr Lim dated 3 March 2020,[25] Dr Singh stated that he had reviewed the appellant that day and confirmed his diagnosis of “C3/4 disc bulging and foraminal stenosis as well as L5/S1 degenerative disc disease”[26] which he believed to be related to the nature of the appellant’s work.

   [25] ARD, pp 25–26.

   [26] ARD, p 25.

4. Dr Singh also noted that the appellant suffered from lower back pain, but this pain was not as severe as the cervical pain. Dr Singh commented that the nuclear medicine bone scan reported “significant uptake of tracer at L5/S1 as well as in the facet joint of C3/4” and that this finding corresponded to the findings of the MRI.[27] Dr Singh also stated the diagnostic importance of the appellant’s response to an injection at C3/4 which had provided significant pain relief during the anaesthetic phase but reported that this pain had now returned.

   [27] ARD, p 25.

5. In the report of 3 March 2020 Dr Singh recommended that the appellant consider surgery in the form of anterior cervical decompression and fusion and that after discussing the risks and benefits with the appellant, he believed the appellant was ready to proceed with the surgical option in his cervical spine.

6. In a third report to Dr Lim dated 17 March 2020,[28] Dr Singh stated that he had reviewed the appellant that day and recorded that the pain in his neck had returned and was radiating to the right shoulder. Dr Singh reiterated the temporary relief experienced from the injection at C3/4 and stated that the appellant requested to have this repeated.

   [28] ARD, p 28.

7. Dr Singh also stated in this report that the appellant had “multilevel cervical pathology, but his symptoms are being caused by the disc bulging at C3/4 which extends into the right neural exit foramen.”[29] Dr Singh further recorded that the appellant would like to have a second opinion in relation to the surgical option.

   [29] ARD, p 28.

8. The final report provided by Dr Singh, dated 21 August 2020,[30] was directed to the appellant’s legal representative in response to correspondence sent by them to Dr Singh on 17 June 2020. The letter to Dr Singh from the appellant’s legal representatives provided a considered and detailed history of the appellant’s work with the respondent and onset of neck and back pain.[31] The letter asked for Dr Singh’s opinion as to the relationship between the appellant’s employment and his neck and back pain, his opinion on the appellant’s capacity for work and his opinion as to whether the proposed operative treatment recommended was reasonably necessary as a result of the work-related condition.

   [30] ARD, pp 33–34.

   [31] ARD, pp 30–32.

9. In his report of response dated 21 August 2020, Dr Singh reiterated his observations of the bone scan and the diagnostic importance of the appellant’s response to an injection at C3/4. Dr Singh then stated that he would expect significant improvement of the appellant’s symptoms with surgical correction of the cervical pathology. Dr Singh was of the view that:

   “Surgery is likely to correct the structural problem at C3/4, decompress the nerve roots, and stabilise a motion segment thereby having a resultant improvement of his pain and function. Without surgery he can expect gradual deterioration of pain and function.”[32]

   [32] ARD, p 34.

10. Dr Singh opined that the medical treatment was reasonably necessary as a result of the appellant’s work-related condition and that the alternative to surgical treatment would be to undergo chronic pain management and accept permanent functional restriction. He concluded his report by stating that surgery is expected to be of significant cost benefit and is an accepted mode of treatment for ongoing symptoms arising from the appellant’s condition.[33]

    [33] ARD, p 34.

Dr Stephen Rimmer, orthopaedic surgeon

1. Dr Rimmer was engaged by the insurer for an independent medical examination and examined the appellant on 16 April 2020. He provided a report on 20 April 2020.[34]

   [34] Reply, pp 18–25.

2. Dr Rimmer recorded a history from the appellant, detailing particularly the onset of back pain from October 2018 and the onset of neck pain in November 2019. Dr Rimmer documented the appellant’s current symptoms in the cervical and lumbar spine and the treatment the appellant had been undergoing.

3. In his examination of the cervical spine, Dr Rimmer observed the appellant’s active range of motion, which he described was performed “without any obvious discomfort.”[35]

   [35] Reply, p 20.

4. Dr Rimmer considered the MRI scan of the cervical spine dated 9 December 2019 which he stated showed, “severe disc degeneration and loss of disc height at C6/7 and discophytic complex with no evidence of neural impingement.”[36] Dr Rimmer also considered the nuclear bone scan dated 23 January 2020 which he observed demonstrated “increased uptake at the right C3/4 facet joint, and increased uptake at the L5/S1 vertebral body endplate.” The CT guided cortisone injection in the right C3/4 perineural space on 28 January 2020, the x-ray of the cervical spine dated 31 October 2019 and the MRI scan of the lumbar spine dated 10 December 2019 were also considered by Dr Rimmer.

   [36] Reply, p 21.

5. From the history, examination and investigations, Dr Rimmer diagnosed the appellant with “degenerative osteoarthritis cervical spine”[37] and opined that this diagnosis was consistent with constitutional degenerative change and considered that the probability of developing symptoms at the time if not for the work injury was extremely high. Dr Rimmer also stated that given the appellant’s history and “essentially normal physical examination” he did not consider the appellant’s work duties to be the main contributing factor to the aggravation of a pre-existing condition.[38] Dr Rimmer continued in his report to state that “the investigations of the cervical and lumbar spine show severe pre-existing degenerative osteoarthritis at C6/7 and L5/S1” which was consistent with “constitutional degenerative change” and not with a work related injury.[39]

   [37] Reply, p 21.

   [38] Reply, p 22.

   [39] Reply, p 22.

6. In response to whether Dr Rimmer supported or advised against the surgery recommended by Dr Singh, Dr Rimmer provided the following response:

   “Given today’s normal examination, I do not believe he requires an anterior cervical decompression and fusion. Plus, the level i.e. C3/4 recommended by Dr Singh in my opinion is incorrect. The overwhelming pathology is at C6/7.”[40]

   [40] Reply, p 22.

1. Dr Rimmer concluded his report by observing that his examination of the cervical spine and lumbar spine was “completely normal”.[41]

   [41] Reply, p 25.

Dr James Bodel, orthopaedic surgeon

1. Dr Bodel was asked by the appellant’s legal representatives to examine the appellant and give an opinion. Dr Bodel examined the appellant on 30 June 2020 and provided two reports addressed to the appellant’s legal representative. The initial report is dated the day of the examination, 30 June 2020 (initial report),[42] and the second report is dated 4 October 2020 (second report).[43]

   [42] ARD, pp 35–41.

   [43] ARD, pp 42–43.

The initial report

1. The initial report contains a detailed account of the appellant’s employment, injury, and medical history as taken by Dr Bodel in the examination. The employment history and history relating to the injury encompass the length of time the appellant worked with the respondent and the nature of the work he completed in his different duties whilst engaged by the respondent.

2. The history recorded relating to the injury delved into the onset of the appellant’s problems in the neck and the back. Dr Bodel also recorded the medical treatment that the appellant received during and after the commencement of the problems in the neck and the back up to when he was referred to Dr Singh.

3. At this point in the report, Dr Bodel observed:

   “I note that Dr Singh has recommended an anterior cervical decompression and fusion at C3/4. I have seen the MRI scans and x-rays of the neck and there is minimal damage at the C3/4 level but much more significant damage involving C5/6 and C6/7 and I am unsure as to what clinical signs lead to the suggestion for an anterior cervical decompression and fusion at the C3/4 level.”[44]

   [44] ARD, p 37.

4. Dr Bodel went on to record the appellant’s current complaints and conduct an examination. In his examination of the appellant, Dr Bodel observed that there was “restricted range of neck flexion, extension and rotation in all directions” and the appellant had “full shoulder abduction and rotation on the left side but a slight restriction of shoulder movement on the right.”[45]

   [45] ARD, p 38.

5. Dr Bodel listed the investigations that were available to him at the time of the examination and provided comment on these.[46] Available to Dr Bodel were the following:

   (a)    x-ray of the cervical spine dated 31 October 2019;

   (b)    MRI scan of the cervical spine dated 10 (sic, 9) December 2019;

   (c)    MRI scan of the lumbosacral spine dated 10 December 2019;

   (d)    bone scan dated 23 January 2020;

   (e)    block injection dated 28 January 2020, and

   (f)    epidural injection at L5/S1 level dated 29 January 2020.

   [46] ARD, p 39.

6. Relevantly, he noted of the x-ray of the cervical spine that “[t]here is no significant abnormality on the plain x-rays involving C3/4” and of the MRI scan of the cervical spine, Dr Bodel commented “[t]here is severe degenerative disc disease at C5/6 and C6/7. There is a small central bulge at C3/4 but I can see no evidence of spinal cord or nerve root compromise at any level.”[47]

   [47] ARD, p 39.

7. Of the bone scan, Dr Bodel commented that “[t]here is quite marked increased uptake on the right hand side at C5/6 and C6/7 but no significant increased uptake at C3/4 in my view.”

8. Dr Bodel also provided comment that the block injection conducted on 28 January 2020 in the right side of the neck at C3/4 was with “good benefit”.[48]

   [48] ARD, p 39.

9. Dr Bodel considered other relevant documentation in his report, including earlier x-rays dating back to 2 February 2016 of the cervical and lumbar spines, that showed degenerative disc disease at L5/S1 and at C5/6 and C6/7. In these earlier films it is noted that there is no mention of any abnormality at the C3/4 level. Dr Bodel also noted the report of Dr Singh dated 5 February 2020 and noted that he made no mention of the more significant pathology at the C5/6 and C6/7 levels.

10. Dr Bodel commented on the treatment report from Dr Dalton and stated that he agreed with the conservative approach of physiotherapy and exercise physiology that was recommended by Dr Dalton.

11. Dr Bodel commented on the MRI scan of the cervical spine dated 9 December 2019 and noted with regard to the C3/4 level that there was “‘mild disc height narrowing and disc desiccation and a 3 mm broad-based disc protrusion extending to the right neural exit foramen and mild right C4 neural exit foraminal stenosis’. There is no mention of nerve root compromise at any level.”[49]

    [49] ARD, p 40.

12. Dr Bodel concluded his initial report with the following opinion:

    “The proposed treatment by Dr Singh in my view is not reasonably necessary for the management of the injury. I am inclined to agree with the more conservative approach outlined by Dr Seamus Dalton. I am unable to identify why the C3/4 level is the symptomatic disc level in this circumstance, based on his clinical presentation here today. The proposed surgery in my view is not reasonably necessary for the management of the ‘injury’ that occurred at work.”[50]

    [50] ARD, p 41.

The second report

1. Dr Bodel’s second report to the appellant’s legal representative commenced by acknowledging an observation from the initial report, namely:

   “I have seen the MRI scans and x-rays of the neck and there is minimal damage at the C3/4 level but much more significant damage involving C5/6 and C6/7 and I am unsure as to what clinical signs lead to the suggestion for an anterior cervical decompression and fusion at the C3/4 level.”[51]

   [51] ARD, p 42.

2. Dr Bodel then noted that he had now been provided the report from Dr Singh dated 21 August 2020[52] which provided an explanation of Dr Singh’s reasoning for his views.

   [52] ARD, pp 33–34.

3. Dr Bodel summarised the views of Dr Singh from that report, particularly noting that Dr Singh had identified from the bone scan “significant uptake of tracer at the facet joint of C3/4” which Dr Singh believed was consistent with the MRI and that the appellant’s significant but temporary pain relief after an injection at C3/4 was of “diagnostic importance.”[53]

   [53] ARD, p 43.

4. Dr Bodel then quoted Dr Singh’s justification for why he had recommended a C3/4 anterior cervical decompression and fusion:

   “Surgery is likely to correct the structural problems at C3/4, decompress the nerve roots, and stabilise a motion segment thereby having a resultant improvement of his pain and function. Without surgery he can expect gradual deterioration of pain and function.”[54]

   [54] ARD, p 43.

5. Dr Bodel concluded the second report by stating he accepted Dr Singh’s assessment but was “surprised that he makes no mention about C5/6 and C6/7 and its potential place in the pain profile.” Dr Bodel continued by noting that Dr Singh “has identified a temporary relief of the patient’s ‘pain’ on block injection at the C3/4 level and therefore the proposed surgery is reasonable and necessary for the management of that injury.” [55]

   [55] ARD, p 43.

THE ARBITRATOR’S REASONS

1. The Arbitrator gave ex tempore reasons on 20 January 2021, which were confirmed in a Certificate of Determination dated 22 January 2021. A transcript of the ex tempore reasons has been made available to the parties.[56] In his reasons, the Arbitrator considered the medical evidence available to him to determine whether the proposed surgery was reasonably necessary.

   [56] Summers v Sydney International Container Terminals Pty Ltd t/as Hutchison Ports (reasons).

2. The Arbitrator initially considered Dr Singh’s evidence and noted that seven reports had been provided but that there had only been one examination. The Arbitrator observed that Dr Singh had failed to take a proper history, concluding that it was the letter provided from the appellant’s legal representative to Dr Singh, that provided the circumstances under which the appellant had injured himself.[57]

   [57] Reasons, 2.6–15.

3. The Arbitrator then turned to consider the evidence of Dr Seamus Dalton, acknowledging that he had taken a ‘consistent’ history of the appellant.[58] The Arbitrator recognised that Dr Dalton had before him the x-ray of 31 October 2019 on which the appellant had placed so much weight.

   [58] Reasons, 2.26.

4. The Arbitrator stated that the appellant had sought a second opinion from Dr Bodel[59] and moved to consider the evidence he had provided. Of Dr Bodel’s initial report, the Arbitrator noted that a ‘thorough,’ ‘detailed’ and ‘consistent’ history had been recorded and observed the comments Dr Bodel made in relation to the investigations available to him.[60] The Arbitrator acknowledged that although Dr Bodel’s examination and initial report was seven months after Dr Dalton’s, Dr Bodel still opined that a conservative approach should be adopted.

   [59] Reasons, 2.19–20.

   [60] Reasons, 3.4­–5.8.

5. The Arbitrator held that Dr Rimmer, Dr Bodel and Dr Singh on their examinations of the appellant, had found his clinical presentation to be ‘normal’.[61] In particular, the Arbitrator quoted part of Dr Singh’s examination and concluded that there was nothing in any of the examinations conducted that spoke of a serious cervical condition.[62]

   [61] Reasons, 5.20–25.

   [62] Reasons, 5.29–6.10.

6. The Arbitrator moved to consider the evidence of Dr Bodel’s second report, pausing to state that he was not surprised the appellant had experienced relief in the anaesthetic phase of the injection.[63]

   [63] Reasons, 7.5–7.

7. The Arbitrator held that the appellant’s case was dependent upon being persuaded that Dr Singh had identified that the x-ray of 31 December (sic, October) 2019 demonstrated pathology that justified the surgery, but that all the other medical specialists had ignored the x-ray for whatever motive.[64]

   [64] Reasons, 7.32­–8.3.

8. The Arbitrator acknowledged that Dr Dalton, Dr Bodel and Dr Rimmer each had the x-ray of 31 October 2019 before them when they examined the appellant and considered the comments they made on this x-ray. The Arbitrator concluded that by accepting Dr Singh’s view of the same x-ray, he would ultimately be accepting that the other medico-legal specialists did not do their job. The Arbitrator also held that the comment made by the radiologist of the x-ray, was “hardly an overwhelming comment”.[65]

   [65] Reasons, 9.1.

9. The Arbitrator noted the appellant’s submission, that a treating surgeon could be assumed to make clinical findings that were more precise because of the rapport, experience and familiarity established, was not of any assistance in this case.[66]

   [66] Reasons, 9.10–16.

10. The Arbitrator found that the appellant had not discharged his onus of proof and established on the balance of probabilities that the proposed treatment would be effective, nor that the medical experts accepted it to be appropriate. The Arbitrator was not satisfied that Dr Singh’s opinion could be relied upon and instead accepted the opinions of Dr Bodel, Dr Dalton and Dr Rimmer that the proposed surgery was not reasonably necessary.[67]

    [67] Reasons, 9.19–10.14.

11. The Certificate of Determination issued on 22 January 2021 records the determinations of the Commission by and with consent of the parties, and records an order as follows:

    “1. The application for a declaration pursuant to s 60(5) of the 1987 Act that proposed spinal surgery was reasonably necessary is dismissed and there will be an award in favour of the respondent in respect of that claim.”

12. The appellant appeals against this order.

GROUNDS OF APPEAL

1. The appellant relies upon the following grounds of appeal:

   Ground 1: An error of mixed fact and law in that the Arbitrator failed to find that the proposed anterior cervical decompression and fusion proposed by Dr Singh was reasonably necessary as a result of the injury the appellant is deemed to have received on 10 October 2019.

   Ground 2: An error of mixed fact and law in that the Arbitrator erroneously understood that the appellant was seen by the treating surgeon, Dr Singh, on a single occasion, an error which led to the Arbitrator’s failure to appreciate the reliability and probative value of Dr Singh’s assessment of the need for surgery.

   Ground 3: An error of mixed fact and law in that the Arbitrator overlooked the evidence provided by the whole body nuclear medicine bone scan which confirmed severe pathology at the C3/4 level.

   Ground 4: An error of mixed fact and law in that the Arbitrator purported to rely on the report of Dr Dalton as indicating that the proposed surgery was not reasonably necessary.

   Ground 5: An error of mixed fact and law in that the Arbitrator relied on the opinion of Dr Rimmer, notwithstanding the manifest deficiencies in that opinion.

   Ground 6: An error of fact in that the Arbitrator erroneously stated that Dr Bodel, on examination of the appellant, “found them [sic] to be normal”, contrary to the abnormalities recorded by Dr Bodel in the same report.

   Ground 7: An error of mixed fact and law in that the Arbitrator failed to understand, and be guided by, the diagnostic relevance of the relief provided by the CT-guided injection at C3/4, and purported to offer an unqualified medical opinion of his own.

   Ground 8: An error of mixed fact and law in [that] the Arbitrator’s decision does not engage with Dr Bodel’s revised opinion, and is reliant on an earlier opinion which Dr Bodel changed in accordance with evidence he had not previously considered.

   Ground 9: An error of mixed fact and law in that the Arbitrator failed to acknowledge that on the date of the hearing the preponderance of medical opinion (as constituted by both Dr Singh and Dr Bodel) was that surgery at the C3/4 level was reasonably necessary.

   Ground 10: An error of mixed fact and law in that the Arbitrator considered that the appellant’s case “is dependent obviously on my being persuaded that Dr Singh knew that the x-ray dated 31 December 2019 [sic, October] demonstrated pathology that justified the surgery, but that all other medical specialists ignored the x-ray for whatever motive”; when the appellant’s case was based on a substantially greater foundation than what was revealed in the October 2019 x-ray.

   Ground 11: An error of fact and law in that the Arbitrator required pathology revealed by investigations to be “overwhelming”, in order to provide a basis for surgery.

   Ground 12: An error of mixed fact and law in that the Arbitrator purported to diminish Dr Singh’s opinion as to the causal relationship between the appellant’s condition and his employment (a matter that is not in dispute) by suggesting that Dr Singh was influenced by the appellant’s solicitors, notwithstanding that Dr Singh had recorded that opinion in a letter to the appellant’s GP on 3 March 2020.

   Ground 13: An error of fact in that the Arbitrator found that the appellant sought a second opinion from Dr Bodel, whereas that opinion was sought from Dr Loefler.

   Ground 14: An error of mixed fact and law in that the Arbitrator preferred the opinions of the qualified doctors as to their interpretations of the radiology evidence over the opinion of specialist radiologists.

   Ground 15: An error of mixed fact and law in dismissing the radiologist’s comment concerning the x-ray of 31 October 2019 of encroachment at the right C3/4 exit foramen as probably compressing the nerve root as “hardly an overwhelming comment”.

   Ground 16: An error of mixed fact and law in diminishing the opinion of Dr Singh because of his failure to allegedly take “a proper history of the circumstances” of the injury when injury and causation were never an issue in the claim.

LEGISLATION

1. Section 60 of the 1987 Act relevantly provides:

   “60    Compensation for cost of medical or hospital treatment and rehabilitation etc

   (1)     If, as a result of an injury received by a worker, it is reasonably necessary that—

   (a) any medical or related treatment (other than domestic assistance) be given, or

   (b) any hospital treatment be given, or

   (c) any ambulance service be provided, or

   (d) any workplace rehabilitation service be provided,

   the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

   Note—

   Compensation for domestic assistance is provided for by section 60AA.

   …

   (3)     Payments under this section are to be made as the costs are incurred, but only if properly verified.

   (4)     The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.

   (5)     The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

1. In this appeal the appellant alleges that an experienced Arbitrator has made a significant number of errors both in fact finding and in application of the law and as a consequence, seeks correction on appeal. Before turning to the principles which will need to be applied to this appeal, it is worth remarking about the nature of the proceedings conducted before the Arbitrator. Firstly, as is very common in workers compensation matters conducted in this Commission, there was no viva voce evidence. Secondly, there was no issue taken by either party as to the truthfulness of the evidence before the Arbitrator. In short, there were no credibility issues for the Arbitrator to determine. Thirdly, the contest before the Arbitrator centred around the proper construction and/or inferences to be drawn from the medical evidence which consisted of three categories of material; namely investigatory reports, reports from the appellant worker’s treating doctors and medico-legal opinions. Fourthly, causation was not in issue.

2. For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides:

   “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.”

3. The nature of an appeal has been reviewed in various decisions. Perhaps the most well-known and uncontroversial description of the appellate task is described by Roche DP in Raulston v Toll Pty Ltd.[68] I refer to and rely on paragraph [19] of that decision. Additionally, given that this was a case about conflicting medical evidence and the proper inferences to be drawn, an Arbitrator must properly analyse the medical evidence and state why one body of evidence is preferred over another.[69]

   [68] [2011] NSWWCCPD 25; 10 DDCR 156, [17]­–[30].

   [69] Charles Sturt University v Manning [2016] NSWWCCPD 10, [52]­–[63].

4. Finally, and particularly having regard to the multiplicity of grounds advanced by the appellant, the following authority is of relevance. In Singh v FTW Products Pty Ltd,[70] Acting Deputy President Snell (as he then was) said as follows:

   “The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).”[71] (emphasis added)

   [70] [2007] NSWWCCPD 230 (Singh).

   [71] Singh, [63].

SUBMISSIONS

1. The schema of the appellant’s approach is to advance an error in his first ground which is described as the Arbitrator’s “principal error” which is then described as the principal ground of appeal. The remaining 15 grounds are advanced as “errors which ultimately contributed to the principal error”.[72] Given this approach by the appellant, I intend dealing with Ground 1 last given that it is the appellant’s submission that Grounds 2–16, if established in whole or in part, contribute to what is termed the principal error in Ground 1.

   [72] Appellant’s submissions, [2.8.1].

2. As is evident from the description of the evidence outlined above, the task before the Arbitrator was to weigh the medical evidence before reaching his ultimate conclusion as to whether the proposed surgery was reasonably necessary. The relevant written submissions of both parties are discussed in my consideration of the appellant’s grounds of appeal and I have summarised the further submissions put forward at the hearing below.

Directions hearing - 18 October 2021

1. At the Directions hearing on 18 October 2021, the parties were asked whether, in the event that error was found in the Arbitrator’s approach, any party would have an objection to the matter being determined under s 352(6A) of the 1998 Act, formerly s 352(7) of the 1998 Act. The parties were asked this to ensure that the matter was dealt with in a way consistent with the objects of the legislation.

2. Counsel was also asked to consider and prepare submissions on the following questions:

   (a)    firstly, with respect to Dr Bodel’s second opinion, how his apparent change of mind between opinions should be considered, and

   (b)    secondly, why Dr Singh did not provide any commentary about the pathology at C5/6 and C6/7 yet this level troubled Dr Bodel and Dr Rimmer.

3. The matter was listed for 27 October 2021 to hear from counsel on these issues.

Hearing – 27 October 2021

1. In relation to the first question, the appellant submits that Dr Bodel’s second report indicates that on reflection he accepted that the injection at the C3/4 level provided the basis to accept the opinion of Dr Singh. The injection provided the appellant with relief of his symptoms, which demonstrated that the C3/4 area required intervention.[73]

   [73] Transcript of proceedings 27 October 2021 (T), T9–10.

2. The appellant further submits that pathology at another level does not negate significant and severe pathology at the C3/4 level. The appellant contends that the injection at the C3/4 level provided relief which would indicate that pathology at the other levels was not causing the same pain and distress that the appellant was experiencing at C3/4.

3. On this issue, the respondent submits that Dr Bodel’s expression in the final paragraph of his second report, “I am surprised that he makes no mention about C5/6 and C6/7”[74] indicates a level of concern. The respondent contends that this level of concern combined with the view of other specialist practitioners should be considered when determining whether surgery is reasonably necessary. The respondent also submits that Dr Bodel’s change of opinion in the second report seems to rely upon therapeutic benefit from the injection which does not consider broader criteria as required, such as whether other more conservative options have been properly pursued.[75]

   [74] ARD, p 43.

   [75] T 15­–16.

4. In relation to the second question, the appellant submits that Dr Rimmer did not adequately acknowledge the pathology that was revealed in the investigations. The appellant contends that the significant pathology is at the C3/4 level as identified by Dr Singh and as is evidenced by the investigations and the diagnostic importance of the corticosteroid injection.

5. The appellant submits that Dr Rimmer’s report of 20 April 2020 only acknowledged one aspect of the MRI scan of the cervical spine and omitted to include the “3mm broad-based posterior disc protrusion and the interference with the neural exit.”[76] The appellant also contends that Dr Rimmer failed to acknowledge that the radiologist had recorded the bone scan demonstrated the pathology at the C3/4 level was ‘severe’ and therefore argues that Dr Rimmer’s opinion should not be relied upon.[77]

   [76] ARD, p 45.

   [77] T 6–7.

6. The appellant also submits that the corticosteroid injection was at the C3/4 level and provided relief from symptoms in the lumbar area which would indicate that the injection provided an overall relief from symptoms. The appellant submits that surgery is now sought at this level on the basis of Dr Singh’s recommendation who was the surgeon who has identified significant pathology at the C3/4 level and who has the diagnostic information from the injection.[78]

   [78] T 8­–9.

7. The appellant submits that Dr Singh acknowledges the appellant has multilevel cervical pathology, but the symptoms are being caused by the disc bulging at C3/4. It is stated that it would have been open to the respondent after having received this opinion from Dr Singh to refer the opinion to Dr Rimmer to see whether any critical comments were to be made. The appellant therefore contends that Dr Singh’s opinion is left unanswered, and the respondent’s case does not address the foundation on which the applicant bases the claim for surgery.[79]

   [79] T 12–13.

8. The respondent submits that the radiological reports are merely an opinion and the qualified doctors engaged are also suitably experienced to look at the films and scans to develop their own opinions.[80] The respondent says that Dr Bodel expresses an opinion that there is no compression at any level and his observation of the bone scan demonstrates that there is no significant increased uptake at C3/4. The respondent submits that the careful analysis of the radiology that Dr Bodel provides in his initial report should be given weight. The respondent also says that Dr Rimmer is an orthopaedic surgeon and was perfectly qualified to give the opinion he did.[81]

   [80] T 16–17.

   [81] T 17–18.

9. With regard to Dr Singh’s opinion, the respondent submits that a simple reference to multilevel cervical pathology does not demonstrate that he has analysed this pathology in detail and the sparse reasoning on this issue would not provide the necessary persuasion that surgery at the C3/4 level is reasonably necessary.[82]

   [82] T 19.

DISCUSSION

As to Ground 2: An error of mixed fact and law in that the Arbitrator erroneously understood that the appellant was seen by the treating surgeon, Dr Singh, on a single occasion, an error which led to the Arbitrator’s failure to appreciate the reliability and probative value of Dr Singh’s assessment of the need for surgery

1. It is common ground between the parties that the Arbitrator was wrong when he said that Dr Singh only saw the appellant in consultation on one occasion.[83]

   [83] Reasons, 2.8.

2. The appellant’s submissions assert that since Dr Singh saw the appellant on three occasions, he was thus better placed to assess the appellant’s condition and the appropriate treatment of that condition rather than the medico-legal experts who only saw the appellant in consultation once.

3. The appellant also submits that as Dr Singh is professionally responsible for the appellant’s care and is thus exposed to potential liability for the treatment he recommends, his opinion ought to be preferred to that of the medico-legal experts. The argument, so it goes, is that Drs Bodel and Rimmer have no adverse potential consequences with respect to the opinions that they might express about the appellant’s case.[84]

   [84] Appellant’s submissions, [34].

4. This latter submission I do not find to be persuasive. Both Drs Bodel and Rimmer agreed to be bound by the expert witness code of conduct. Both doctors examined the appellant and have provided their opinions in light of that examination, the history, investigations and instructions they were provided with. There is no evidence, let alone any suggestion that these medical practitioners have done anything other than to provide a truthful and bona fide opinion to assist this tribunal in dealing with this matter.

5. This submission, taken to its logical conclusion, would mean that a treating doctor’s report would be universally preferred to a medico-legal opinion. This cannot be correct and would mean that a decision maker would be absolved from their obligation to weigh the entirety of the evidence.

6. Having said this however, the Arbitrator was clearly aware of the advantage that a treating doctor’s opinion may have over an expert qualified for medico-legal purposes.

7. The Arbitrator in his decision said as follows:

   “True it is, as Mr Tanner submitted, that the treating surgeon reviews his patient on many occasions, and can sometimes get a better rapport with his client and, therefore, could be assumed to make clinical findings that were a bit more precise because of that experience and familiarity, but that submission does not assist in this particular case.”[85]

   [85] Reasons, 9.10–16.

8. The Arbitrator has carefully reviewed the various medical opinions noting the issues, as he saw them, with Dr Singh’s report. The Arbitrator noted that Dr Singh never actually took a proper history, and it was not until the solicitors briefed Dr Singh by letter dated 17 June 2020 that he was given the necessary assumptions upon which to form his opinion.[86] The Arbitrator made a factual error in stating that Dr Singh only examined the appellant on the one occasion, however nothing material arises as a result of this error. This error was not determinative of the outcome and the appellant has not identified how this error has affected the Arbitrator’s reasoning processes so as to produce an error which requires correction on appeal. The appellant’s submission regarding the respective professional liabilities of a treating doctor as opposed to a medico-legal specialist are neither persuasive nor indicative of the existence of error.

   [86] Reasons, 2.12–15.

9. Reading the Arbitrator’s decision as a whole, it is clear that he was concerned about the history that Dr Singh had taken. The view that the Arbitrator took was that “[t]here is nothing in any of the examinations that speak of a serious cervical condition”.[87]

   [87] Reasons, 6.9–10.

10. Finally, there is also a concern expressed by the Arbitrator of the need for him to be “persuaded that Dr Singh knew that the x-ray of 31 December [sic, October] 2019 demonstrated pathology that justified the surgery, but that all the other medical specialists ignored the x-ray for whatever motive”.[88]

    [88] Reasons, 7.33–8.3.

11. As can be seen, the Arbitrator had a number of concerns with respect to his evaluation of Dr Singh’s evidence and these are detailed in the decision. The fact that he made an error regarding the number of consultations has not affected these considerations.

12. Ground 2 has not been established and is dismissed.

As to Ground 3: An error of mixed fact and law in that the Arbitrator overlooked the evidence provided by the whole body nuclear medicine bone scan which confirmed severe pathology at the C3/4 level

1. The appellant alleges that the Arbitrator’s decision does not refer to this evidence and that as a result the matter was determined without reference to the actual pathology at the C3/4 level.

2. At pp 6–7 of the decision, the Arbitrator recorded as follows:

   “Dr Bodel continued that, as Dr Singh indicated:

   ‘… a bone scan shows ‘significant uptake of tracer at the facet joint of C3/4. This corresponds to the MRI scan findings. Of diagnostic importance is the response to an injection at C3/4. He had significant relief of pain during the anaesthetic phase but this pain has now returned.’”[89]

   [89] Reasons, 6.29–7.3.

3. The bone scan is found at ARD p 49 where under the heading “findings” the following appears:

   “There is uptake consistent with arthropathy involving the:

   …

   - Right C3/4, facet joint (severe)

   - Right C3/4, uncovertebral joint

   …

   Conclusion:

   Uptake consistent with arthritic change greatest at the right C3/4 facet joint and the L5/S1 vertebral body endplate.”

4. This is the passage from the bone scan which is referred to by both Drs Bodel and Singh and to which the Arbitrator is referring at this section of his decision.

5. The appellant’s assertion that the Arbitrator’s decision does not refer to the bone scan findings is thus not substantiated. Indeed to the contrary, it was explicitly referred to by the Arbitrator. The allegation that the Arbitrator proceeded to determine the matter without reference to the bone scan, and the pathology revealed at the C3/4 level, is therefore without basis in fact.

6. No error has therefore been identified and Ground 3 is consequently dismissed.

As to Ground 4: An error of mixed fact and law in that the Arbitrator purported to rely on the report of Dr Dalton as indicating that the proposed surgery was not reasonably necessary, notwithstanding that:

(a) Dr Dalton saw the appellant in November 2019, and did not have the benefit of subsequent evidence (the MRI dated 10 December 2019, the bone scan dated 23 January 2020, records of symptoms experienced in 2020, the temporary relief provided by the CT-guided injection at C3/4, and the opinion of Dr Singh);

(b) Dr Dalton is not a surgeon, and cannot offer an opinion on whether the appellant would experience a relief from pain if he were to undergo the surgery proposed by Dr Singh, and

(c) Dr Dalton anticipated that, if the appellant’s symptoms did not settle he would need to consider the option of a CT-guided injection (a procedure that was subsequently undertaken, and resulted in only temporary relief, but provided diagnostic information which was obviously not available to Dr Dalton in November 2019)

1. The appellant states that Dr Dalton’s opinion can only have limited value with regard to the appellant’s condition, given that this opinion was delivered before other studies and treatment had taken place. In the appellant’s chronology, filed with these appeal papers, Dr Dalton’s appointment is noted at item 6 in the chronology. Items 7, 9 and 10 in the same chronology detail other investigations and treatment that the appellant had after he had been seen by Dr Dalton.

2. Dr Dalton’s opinion obviously was given at a point in time based upon the appellant’s presentation and the studies that were then available, which was the x-ray of his cervical spine.[90]

   [90] ARD, p 44.

3. Dr Dalton’s opinion was properly before the Arbitrator, and it was a matter for the Arbitrator to give the report and opinion of Dr Dalton such weight as he thought necessary. There is no error in this approach.

4. At the hearing before the Arbitrator, counsel for the appellant said as follows with respect to Dr Dalton:

   “My friend, in relying on Dr Dalton, is referring to a specialist in rehab medicine. Obviously at that stage Dr Dalton is not going to be recommending surgery or considering surgery, that wasn’t on the table at that stage and it’s [not] Dr Dalton’s area of expertise. Dr Dalton engages with patients and finds or offers conservative measures hopefully to assist and for reasons discussed and that hasn’t worked.”[91]

   [91] Transcript of proceedings 20 January 2021, 38.6–13.

5. At no stage was it advanced before the Arbitrator that Dr Dalton could not offer an opinion on the surgery proposed by Dr Singh. In any event, Dr Dalton offered no such opinion on proposed surgery and so the assertion made by the appellant at Ground 4(b) does not arise.

6. No error, either factual or an error of law, has been identified by the appellant with respect to this ground. Ground 4 is dismissed.

As to Ground 5: An error of mixed fact and law in that the Arbitrator relied on the opinion of Dr Rimmer, notwithstanding the manifest deficiencies in that opinion including:

(a) Dr Rimmer’s failure to acknowledge or address the pathology at C3/4 demonstrated by the x-rays performed on 31 October 2019;

(b) Dr Rimmer’s failure to comment on the findings at C3/4 reported by the radiologist in the MRI report dated 9 December 2019 and in the bone scan dated 23 January 2020;

(c) Dr Rimmer’s opinion that the work-related aggravation of the appellant’s cervical spine had ceased (despite all contemporaneous evidence to the contrary, and the respondent’s agreement to resume weekly payments, and payment of other medical expenses), and

(d) Dr Rimmer’s failure to acknowledge or address the effect and diagnostic relevance of the relief provided by the CT-guided injection at C3/4

1. The appellant asserts that Grounds 5(a)–(d) are “self-evident” and flow from the limitations of Dr Rimmer’s opinion as compared to the rest of the evidence.[92] The respondent submits that none of the matters canvassed in Grounds 5(a)–(d) are capable of demonstrating any error, rather it is submitted by the respondent that Dr Rimmer can provide expert opinion evidence as an orthopaedic surgeon.

   [92] Appellant’s submissions, [39].

2. The report of Dr Stephen Rimmer is dated 20 April 2020.[93] Dr Rimmer describes his examination and findings.[94] Dr Rimmer also describes the investigative material that he had been provided to comment upon which consisted of the following:

   “Investigations

   An MRI scan of the lumbar spine dated 10/12/2019 shows severe disc degeneration and loss of disc height at L5/S1 with no obvious neural impingement.

   An MRI scan of the cervical spine dated 09/12/2019 shows severe disc degeneration and loss of disc height at C6/7 and discophytic complex with no evidence of neural impingement.

   A nuclear bone scan dated 23/01/2020 shows increased uptake at the right C3/4 facet joint, and increased uptake at the L5/S1 vertebral body endplate.

   CT guided cortisone injection in the right C3/4 perineural space on 28/01/2020.

   CT guided cortisone injection in the right L5/S1 perineural space on 29/01/2020.

   An X-ray of the cervical spine dated 31/10/2019 shows a loss of lordosis. There is also decreased disc height at C5/6 and C6/7.”[95]

   [93] Reply, p 18.

   [94] Reply, pp 20–21.

   [95] Reply, p 21.

3. After recording these investigations, Dr Rimmer then turns his mind to answer the specific questions which he had been asked to provide his professional opinion upon. This opinion commences at Reply p 21, concluding at p 25. Dr Rimmer diagnosed that the appellant was suffering from degenerative osteoarthritis in his cervical spine. He goes on to say:

   “Given today’s normal examination I do not believe he requires an anterior cervical decompression and fusion. Plus, the level ie C3/4 recommended by Dr Singh in my opinion is incorrect. The overwhelming pathology is at C6/7.”[96]

   [96] Reply, p 22.

4. In summary, Dr Rimmer was of the view as a result of his examination and the investigations that he was shown, that the appellant was suffering from severe pre-existing degenerative arthritis.

5. The question therefore arises in this appeal point, notwithstanding that Dr Rimmer did not precisely address the matters complained of in this appeal point, was the Arbitrator in error in relying upon Dr Rimmer’s opinion?

6. It is clear that the Arbitrator preferred the opinions of Drs Bodel, Dalton and Rimmer that surgical intervention was not reasonably necessary.[97] In particular in relation to Dr Rimmer the Arbitrator said as follows:

   “I accept in relation to the opinion by Dr Rimmer that the mainstay of his opinion was that there was no injury or the aggravation has ceased, but he did make that comment, as I said at the outset, that he couldn’t see why the C3/4 level was appropriate.”[98]

   [97] Reasons, 10.6–7.

   [98] Reasons, 10.9–14.

7. Dr Rimmer made these remarks having not only examined the appellant but also examined the investigations which I have set out above. Clearly, the Arbitrator has given those views some weight when taken with the views expressed by Drs Bodel and Dalton. The question arises as to whether or not it can be said that the opinion expressed by Dr Rimmer was given in a fair climate.[99] It cannot be said that Dr Rimmer was poorly instructed or was lacking access to investigative material such that his opinion could not be given in the fair climate as contemplated in Paric. Issue was taken with his opinion due to a failure to address various investigations. With respect, Dr Rimmer’s opinion was clearly given in light of those investigations. The section of his report entitled “Investigations”, which I have set out at [120] above, is a summary of those investigations and it is clear thereafter that arising from both his examination and review of those documents that he has reached a view which is then expressed in the latter sections of his report. Dr Rimmer reaches a different conclusion to Dr Singh as to the level at which the appellant’s pathology was occurring, stating that he thought the C3/4 level was incorrect (see [121] above).

   [99] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 (Paric).

1. Clearly it was this latter opinion that was relied upon by the Arbitrator in terms of the weight that he gave to Dr Rimmer’s report.[100]

   [100] Reasons, 10.12–13.

2. The fact that the precise questions complained of in Ground 5(a), (b) and (d) were not in terms addressed by Dr Rimmer does not in my opinion render his report to have no weight. In terms of Ground 5(c), this does not speak to the question of whether or not the proposed surgery was reasonably necessary. This does not constitute an error on the part of the Arbitrator. Notwithstanding the findings of error that I make later in this decision, the precise errors raised under Ground 5 have not been established.

3. Ground 5 is dismissed.

As to Ground 6: An error of fact in that the Arbitrator erroneously stated that Dr Bodel, on examination of the appellant, “found them [sic] to be normal”, contrary to the abnormalities recorded by Dr Bodel in the same report

1. The respondent submits that where the Arbitrator is considering the opinions of Drs Rimmer, Singh and Bodel at p 5 of the reasons, referring to their views as “normal”, that it is unclear specifically what is being referred to as “normal”. This, the respondent submits, leads to the conclusion that no clear error has been made out.

2. If one considers the report of Dr Bodel of 30 June 2020, clearly he is recording not only the appellant’s complaints but also his findings on examination. A consideration of the report reveals some aspects of the appellant’s presentation which Dr Bodel has commented upon and other aspects where the doctor recounts no positive signs.

3. The application however was about proposed surgery at C3/4 level.

4. Dr Bodel makes two statements about this area. Firstly, when commenting upon x-rays of the cervical and lumbar spines of 2 February 2016, Dr Bodel says:

   “In those early films there is no mention of any abnormality at the C3/4 level.”[101]

   [101] ARD, p 39.

5. He then comments upon the MRI scan of the cervical spine of 9 December 2019 stating:

   “At the C3/4 level there is ‘mild disc height narrowing and disc desiccation and a 3 mm broad-based disc protrusion extending to the right neural exit foramen and mild right C4 neural exit foraminal stenosis’. There is no mention of nerve root compromise at any level.”[102]

   [102] ARD, p 40.

6. And finally:

   “I am unable to identify why the C3/4 level is the symptomatic disc level in this circumstance, based on his clinical presentation here today. The proposed surgery in my view is not reasonably necessary for the management of the ‘injury’ that occurred at work.”[103]

   [103] ARD, p 41.

7. It is also to be noted that Dr Bodel also identified what he considers the “more significant pathology at the C5/6 and C6/7 levels”.[104]

   [104] ARD, p 39.

8. Dr Bodel is then asked to further comment upon the appellant in his supplementary report of 4 October 2020.[105] In this report Dr Bodel has been asked to comment upon Dr Singh’s 21 August 2020 opinion which explains his reasoning.

   [105] ARD, p 42.

9. The question is therefore quite confined: was the Arbitrator correct in construing Dr Bodel’s report as revealing the appellant presenting from a physical point of view as “normal”?

10. There was error on the part of the Arbitrator in reading Dr Bodel’s report so as to provide evidentiary support for the proposition that the appellant’s presentation to Dr Bodel was “normal”.

11. The use of the expression “normal” as used by the Arbitrator appears to be limited to the appellant’s “clinical presentation”.[106] In his report of 30 June 2020 Dr Bodel says as follows:

    “I am unable to identify why the C3/4 level is the symptomatic disc level in this circumstance, based on his clinical presentation here today.”

    [106] Reasons, 5.21.

12. This is Dr Bodel’s view notwithstanding the comments he made regarding the investigatory material that he had been supplied with which recounted various findings at the C3/4 level.

13. The use of the word “normal” is perhaps inapt, but it has been deployed to substantiate the Arbitrator’s opinion that Dr Bodel, along with Drs Rimmer and Dalton, had a view that the greater pathology was elsewhere than at the C3/4 level. This however does not mean that the pathology revealed by the various investigations at the C3/4 level could be considered to be normal.

14. However, the descriptor “normal” is not, with respect, an accurate summation of Dr Bodel’s view. Dr Bodel’s supplementary report of 4 October 2020 revisits his opinion and agrees with Dr Singh’s view that the proposed surgery at the C3/4 level is reasonably necessary. It would therefore be axiomatic that whatever was found on clinical presentation, as the Arbitrator limited his remarks at reasons p 5, Dr Bodel’s ultimate opinion would suggest that the appellant’s condition is not normal.

15. I therefore find that the Arbitrator was in error in construing Dr Bodel’s reports, even going beyond his limitation of the clinical presentation only, as revealing the appellant’s condition to be normal, when that is not the case. This descriptor was used as support for the Arbitrator’s ultimate opinion that the proposed surgery was not reasonably necessary and was thus made in error.

16. Ground 6 is established.

As to Ground 7: An error of mixed fact and law in that the Arbitrator failed to understand, and be guided by, the diagnostic relevance of the relief provided by the CT-guided injection at C3/4, and purported to offer an unqualified medical opinion of his own

1. The appellant’s submission in support of this ground is exceedingly brief. The submission in full reads as follows:

   “The Arbitrator did not provide any reasoned medically-based explanation for his failure to acknowledge the relevance of Dr Singh’s conclusions derived from the evidence of temporary relief in the wake of the CT-guided injection.”[107]

   [107] Appellant’s submissions, [42].

2. The offending section of the Arbitrator’s decision appears to be at p 7 of the transcript of the oral decision where the Arbitrator, after noting Dr Singh’s report that the appellant “had significant relief of pain during the anaesthetic phase but this pain has now returned”, says as follows:

   “I pause there to note that it is hardly surprising that in the anaesthetic phase of the injection Mr Summers would have experienced some relief.”[108]

   [108] Reasons, 7.5–7.

3. In submissions before the Arbitrator, counsel for the appellant said as follows (quoting from Dr Singh’s report):

   “‘Of diagnostic importance is his response to an injection at C3/4. He had significant relief of pain during the anaesthetic phase but this pain has now returned.’

   Now, that is of material relevance because it’s identifying the site or the source of the applicant’s pain and that by engaging at that level it is possible to reduce the pain. However, we do note that the pain has returned. This was the first of two injections. That mode of treatment has only provided temporary relief and explains why Dr Singh is proposing to engage at the next stage. In other words, with the proposed surgery.”[109]

   [109] Transcript of proceedings 20 January 2021, 8.22–34.

4. Dr Bodel in his second report notes Dr Singh’s comments of the diagnostic importance of the appellant’s response to the injection at C3/4 and then says as follows:

   “… but he has identified a temporary relief of the patient’s ‘pain’ on block injection at the C3/4 level and therefore the proposed surgery is reasonable and necessary for the management of that injury.”[110]

   [110] ARD, p 43.

5. There was an argument clearly articulated to the Arbitrator that the relief experienced by the appellant following the injection at the C3/4 level was a matter of importance in consideration of the overall question he was charged to consider. Indeed, this temporary relief experienced after the block injection appears to be the determining feature which led to Dr Bodel’s alteration of his opinion in his second report.

6. Whilst the Commission is a specialised tribunal and in some respects can be seen as having experience enabling it to “draw inferences from facts which an ordinary tribunal may not”,[111] this expertise however can only be deployed to interpret or draw inferences from existing evidence, it cannot be used to create evidence.[112]

   [111] Grasa v Roads & Maritime Services [2013] NSWWCCPD 30, [61].

   [112] Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Conargo Shire Council v Quor [2007] NSWWCCPD 245 per Roche DP.

7. In this circumstance, the Arbitrator had the opinions of two specialists, Dr Singh and Bodel, who gave their expert opinions on the significance of the relief the appellant experienced after the block injection at the C3/4 level. In those circumstances, the Arbitrator had to deal with those opinions and the argument clearly articulated regarding this matter (see [149] above). This was not a circumstance where an inference that a specialised tribunal may draw could arise in opposition to the specialist opinion.

8. Consequently, the Arbitrator was in error and in the circumstances Ground Seven is established.

As to Ground 8: An error of mixed fact and law in [that] the Arbitrator’s decision does not engage with Dr Bodel’s revised opinion, and is reliant on an earlier opinion which Dr Bodel changed in accordance with evidence he had not previously considered

1. Again, the submission in support of this ground is exceedingly brief. It reads as follows:

   “It will be noted that the Arbitrator’s decision fails to discuss, or provide a basis for rejecting, Dr Bodel’s opinion as recorded in the supplementary report.”[113]

   [113] Appellant’s submissions, [43].

2. This appeal ground is, it must be said, quite obscure. It does not identify the “evidence” which Dr Bodel had at the time he drafted his second report of 4 October 2020 which he did not have access to previously. At the time of Dr Bodel’s initial report, he had been instructed with all of the relevant investigatory material being the x-rays, the MRIs and the bone scan. From a close reading of Dr Bodel’s second report, the only additional piece of information that he is given appears to be Dr Singh’s observation that the appellant had significant relief of pain after receiving his block injection at the C3/4 level.

3. Dr Singh’s report of 21 August 2020 refers to the results of the bone scan and what it found at C3/4 and how this corresponded to the MRI scan findings. Dr Bodel of course had access to both of these investigatory reports when he provided his initial opinion of 30 June 2020.

4. The only additional material supplied to Dr Bodel was Dr Singh’s views arising from these two investigatory scans and Dr Singh’s opinion of the diagnostic importance of the response to the injection at C3/4 (even accepting that Dr Singh did not explain in terms what that diagnostic importance was).

5. Whilst Dr Bodel does not in clear terms explain why his opinion has changed, I think it is tolerably clear from an examination of the second report that Dr Bodel was much taken by the diagnostic relevance of the pain relief the appellant experienced after the injection at the C3/4 level. This is the extra piece of information that Dr Bodel had at the time he drafted his second report that was not available to him when the initial report was settled.

6. The Arbitrator has not dealt with Dr Bodel’s second report. For the Arbitrator to use Dr Bodel’s opinion from his first report as support for his ultimate conclusions, he had to state, in terms, the reasons why he was not persuaded or convinced by Dr Bodel’s change in opinion in his second report. The failure to do so was in error and as a result Ground Eight is established.

As to Ground 9: An error of mixed fact and law in that the Arbitrator failed to acknowledge that on the date of the hearing the preponderance of medical opinion (as constituted by both Dr Singh and Dr Bodel) was that surgery at the C3/4 level was reasonably necessary

1. This appeal ground can be shortly dealt with. As I have outlined above, the basis of intervention on appeal rests upon the establishment of error.

2. In this ground the appellant alleges, seemingly in mathematical terms, that the Arbitrator acted contrary to the preponderance of the evidence. For the reasons that I have outlined with respect to Ground 8, Dr Bodel’s report of 4 October 2020 can be accepted on the basis of the new information that Dr Bodel was instructed with.

3. However, there was a path for the Arbitrator to decide as he did based upon the evidence. Dr Bodel’s initial and quite comprehensive opinion was against the appellant’s case. The problem was that the Arbitrator did not in terms deal with Dr Bodel’s second report and say why he could not rely upon it.

4. In the circumstances, I do not think it is correct to argue, as the appellant does in this ground, that the preponderance of the evidence is as alleged. The evidence was not so cleanly delineated as is asserted in this ground. The evidence when properly construed shows various opinions, and indeed developing opinions, as various investigations are undertaken. Dr Bodel in his initial report quite forcefully stated that the proposed surgery was not reasonably necessary based upon his examination and review of the investigatory material. Later in his second report, this opinion developed due to Dr Bodel’s receipt of Dr Singh’s observations arising from the block injection at the C3/4 level. It would have been helpful for the Arbitrator had Dr Bodel more clearly set out why his opinion changed and why he no longer maintained his earlier view.

5. No error has been identified and as a result Ground 9 has not been established.

As to Ground 10: An error of mixed fact and law in that the Arbitrator considered that the appellant’s case “is dependent obviously on my being persuaded that Dr Singh knew that the x-ray dated 31 December 2019 [sic, October] demonstrated pathology that justified the surgery, but that all other medical specialists ignored the x-ray for whatever motive”; when the appellant’s case was based on a substantially greater foundation than what was revealed in the October 2019 x-ray

1. Again, and consistent with the appellant’s approach in this appeal, a very brief submission supports this ground. The single sentence supporting this ground reads as follows:

   “The Arbitrator’s comment fails to acknowledge that the recommendation of Dr Singh is based on much more than the October 2019 x-ray (which is one important piece of the puzzle, but not the sole reason for the proposed surgery).”[114]

   [114] Appellant’s submissions, [46].

2. A fair reading of the Arbitrator’s decision would reveal that he considered more than the October 2019 x-ray. As one reads the decision, the Arbitrator sets out the results of various investigations and superimposes the opinions that various medical practitioners had upon them. This commences towards the foot of page 2 and goes to page 6 where the Arbitrator finds as follows:

   “There is nothing in any of the examinations that speak of a serious cervical condition.”[115] (emphasis added)

   [115] Reasons, 6.9–10.

3. It is clear from a reading of the decision in its entirety that the Arbitrator was well aware that Dr Singh’s recommendation for surgery was based upon a number of investigatory scans including but not limited to the October 2019 x-ray. It has long been the case that reasons need to be read as a whole.[116] I think that the issue of the investigatory scans and x-rays has been grappled with by the Arbitrator and as a result, no error as alleged in this appeal ground has been established.

   [116] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.

As to Grounds 11 and 15

1. Consistent with the appellant’s submissions, these two grounds need to be read together as the arguments in favour of Ground 11 are also relied on in establishing Ground 15 and it is therefore convenient to deal with both together.

Ground 11: An error of fact and law in that the Arbitrator required pathology revealed by investigations to be “overwhelming”, in order to provide a basis for surgery

Ground 15: An error of mixed fact and law in dismissing the radiologist’s comment concerning the x‑ray of 31 October 2019 of encroachment at the right C3/4 exit foramen as probably compressing the nerve root as “hardly an overwhelming comment”

1. The complaint under these grounds is that the Arbitrator has imposed a more burdensome standard. The essence of the complaint appears at [49] of the appellant’s submissions.

2. This appeal point can be shortly dealt with. It is abundantly clear from a fair reading of the Arbitrator’s decision that he knew and applied the correct test as to whether or not the proposed surgery was reasonably necessary. The offending remark appears at reasons 9.1–2 where the Arbitrator said, having reviewed the x-ray report of 31 October 2019, “[t]hat is hardly an overwhelming comment by the radiologist in any event”.

3. At the very most this is merely an observation or an obiter remark. I accept the respondent’s submission that this is merely an observation. I would also go further and would remark that the results of the x‑ray were neither doubted nor rejected. It was part of the investigatory matrix that the Arbitrator was called upon to consider. Moreover, the parties are entitled to be aware of the view that the Arbitrator took of these investigations.

4. Grounds 11 and 15 are dismissed, no relevant error having been identified.

As to Grounds 12 and 16

1. As with Grounds 11 and 15, the appellant has joined Grounds 12 and 16 and as a consequence I will deal with them both together.

Ground 12: An error of mixed fact and law in that the Arbitrator purported to diminish Dr Singh’s opinion as to the causal relationship between the appellant’s condition and his employment (a matter that is not in dispute) by suggesting that Dr Singh was influenced by the appellant’s solicitors, notwithstanding that Dr Singh had recorded that opinion in a letter to the appellant’s GP on 3 March 2020

Ground 16: An error of mixed fact and law in diminishing the opinion of Dr Singh because of his failure to allegedly take “a proper history of the circumstances” of the injury when injury and causation were never an issue in the claim

1. Under these grounds, the appellant alleges that the Arbitrator:

   “discloses unfounded prejudicial assumptions regarding the basis of Dr Singh’s understanding of the [a]etiology of the appellant’s condition.

   … [the Arbitrator’s criticism of Dr Singh’s opinion] pertains to a matter that was not in dispute, it reveals misconceived and prejudicial assumptions which would inevitably affect the Arbitrator’s assessment of the appellant’s medical case, to the prejudice of the appellant.”[117]

   [117] Appellant’s submissions, [50]–[51].

2. This ground is without basis.

3. The Arbitrator dealt with how Dr Singh was instructed by the appellant’s solicitors in the following way. At p 2 of the decision the Arbitrator says as follows:

   “Perhaps equally of note is the fact that Dr Singh never actually took a proper history of the circumstances under which Mr Summers injured himself. In fact, it wasn’t until his retaining solicitors sent him a letter on 17 June 2020 that he was given the necessary assumptions upon which to form his opinion.”[118]

   [118] Reasons, 2.10–15.

4. And further at p 6, having quoted an extract from Dr Bodel’s report,[119] the Arbitrator then commented as follows: “That, I take it, Dr Singh got from the letter of instructions written by his retaining solicitors.”[120]

   [119] ARD, p 43.

   [120] Reasons, 6.28­–29.

5. Dr Singh provided five reports that were relied upon by the appellant in this matter. The first four, dated 5 February, 3 March, 9 March, and 17 March, were all an exchange of correspondence between Dr Singh and the appellant’s general practitioner and copied to the case manager at the respondent insurer (with the exception of the first report). In broad terms, these first four reports all relate Dr Singh’s findings upon examination and the provision of information to the general practitioner about investigations which have taken place and recommendations which Dr Singh asked the GP to undertake. For example, in the report of 3 March 2020,[121] Dr Singh says: “I would be grateful if you could optimise his analgesia.”

   [121] ARD, p 25.

1. Dr Singh is then written to by the appellant’s solicitors by letter dated 17 June 2020. This is a comprehensive letter providing Dr Singh with their instructions regarding the appellant’s history, which the doctor is asked to assume and then to provide answers to three questions.

2. Notwithstanding that the initial report to the general practitioner of 5 February 2020 relates that the appellant had worked at the ports, and further on 3 March 2020 Dr Singh says as follows, “[t]his pathology is clearly related to his work in the docks spanning several years”, it is not until the report of 21 August 2020, in response to the solicitor’s letter, does Dr Singh engage with the issues which were to be determined in this claim.

3. I do not consider that on any fair reading of the Arbitrator’s decision, and in particular the section I have quoted from the foot of p 6 of the decision, could there be any suggestion that Dr Singh’s opinion was somehow influenced by the appellant’s solicitors or that he was otherwise making prejudicial assumptions. These were remarks which are available on a consideration of the entirety of Dr Singh’s material, including Dr Singh’s instructing letter from the appellant’s solicitors. As can be seen from the above, Dr Singh had not in the first four pieces of correspondence set out in detail all of the history. This is not surprising because at that time he was concerned with providing advice and treatment to the appellant for his condition. But it can be said that no detailed history is recorded in that correspondence, and in saying this I am not being critical of the doctor at all. This was not the purpose of the correspondence which was taking place between Dr Singh and the general practitioners. But the Arbitrator was entitled to test the weight he would give to Dr Singh’s opinion and in particular the factual basis that underpinned the opinion. There is nothing prejudicial in this undertaking.

4. Finally, in terms of Ground 16, it is not possible to discern from the first four reports authored by Dr Singh whether or not he had a complete history. Clearly though, from a consideration of the first four reports, Dr Singh was aware that the appellant had worked on the docks and had formed a view that the pathology that he was suffering from was related to that work, without going into the relationship between the work and the injury concerned, As I have said, this is no criticism of Dr Singh because the purpose of that correspondence was medical treatment. But certainly, if one reads the reports as a whole, and this is the evidence presented by the appellant, it was a reasonable inference for the Arbitrator to draw that it was not until Dr Singh received the detailed letter of instruction from the appellant’s solicitors that he was giving an opinion in light of those instructions.

5. No error of approach as is required for intervention on appeal has been established, Grounds 12 and 16 are dismissed.

As to Ground 13: An error of fact in that the Arbitrator found that the appellant sought a second opinion from Dr Bodel, whereas that opinion was sought from Dr Loefler

1. The appellant alleges that this was an error of fact. Dr Loefler, and this is not in contest, was asked to provide the appellant with a second opinion. The appellant maintains that Dr Bodel did not provide a second opinion, rather he was a qualified doctor to provide a forensic medical opinion.

2. Unhelpfully, the appellant has not identified the offending section of the decision to which this complaint is addressed. On p 2 of the decision, after describing Dr Singh’s evidence briefly, the Arbitrator says as follows:

   “So the dearth of information and the recommendation of the surgery I infer was part of the problem that Mr Summers noted, so he got a second opinion. That second opinion came from Dr Bodel but before we move to him, he was also referred to Dr Seamus Dalton …”[122]

   [122] Reasons, 2.17–21.

3. Clearly this was an error on the Arbitrator’s part at this stage of the judgment. At this stage of the judgment the Arbitrator is describing the history, and in terms of that history the second opinion at this point in time was sought from Dr Loefler.

4. However later in the decision at p 6, the Arbitrator corrects this error when he finds as follows:

   “Dr Bodel, who is the qualified medico-legal referee retained on behalf of Mr Summers (about which I’ll have something to say in a minute) was asked to give a further opinion on 4 October 2020”.[123]

   [123] Reasons, 6.12–15.

5. The fact that the Arbitrator made an error at p 2 in describing the history is not material. Further, if one reads the decision as a whole, it is clear that by the time the Arbitrator describes Dr Bodel at p 6, as I have outlined above, he quite accurately and uncontroversially sets out Dr Bodel’s presence in this case and the fact that he was asked to provide a further opinion, which is of course different from obtaining a second opinion from a specialist on proposed treatment.

6. Nothing turns on this minor mistake, the appellant has not argued as to how this minor error at p 2 of the decision has otherwise led the Arbitrator into appealable error.

7. Ground 13 is dismissed.

As to Ground 14: An error of mixed fact and law in that the Arbitrator preferred the opinions of the qualified doctors as to their interpretations of the radiology evidence over the opinion of specialist radiologists

1. The appellant, in support of this ground, submits the following brief argument:

   “The radiological evidence is clear in the reports as to the pathology at the C3/4 level. It should have formed the necessary basis pursuant to which the Arbitrator proceeded to consider the need for surgery.”[124]

   [124] Appellant’s submissions, [55].

2. The appellant then proceeds to criticise the opinions of Drs Rimmer and Bodel.[125]

   [125] Appellant’s submissions, [56]­–[57].

3. This appeal ground is not established.

4. The duty of the Arbitrator is to weigh the medical evidence in its entirety. It is not a simple mechanical matter, as is asserted in this appeal point, that findings by radiologists must be accepted without qualification. In this matter there was a series of radiological examinations. Various specialists, Drs Singh, Rimmer, Dalton and Bodel, both treating and medicolegal, were, depending upon the doctor, supplied with some or all of these examinations. Each was eminently qualified within their specialty to comment upon the appellant’s condition arising from not only a consideration of those radiological examinations but also their own consultation with the appellant.

5. The benefit of having access to the radiological examinations, and indeed the other scans that the appellant underwent, would be to assure a decision maker that the individual doctor’s opinion is given in a fair climate[126] and can form a satisfactory basis for the decision maker to make findings. Additionally, I would note that the specialist radiologists were not positing an opinion. Rather they were describing their findings arising from their radiological investigation. Arising from a review of these investigations, as I have said, the various specialists provided their opinions.

   [126] Paric.

6. There is nothing in this approach which is indicative or revealing of any error in approach by the Arbitrator either in fact or law as alleged.

7. Ground 14 is dismissed.

As to Ground 1: An error of mixed fact and law in that the Arbitrator failed to find that the proposed anterior cervical decompression and fusion proposed by Dr Singh was reasonably necessary as a result of the injury the appellant is deemed to have received on 10 October 2019

1. As I have described at [77] above, this matter does not involve any factual contest about matters such as incapacity or causation. Rather, the matter involves an evaluation of various medical investigations and opinions in order to decide whether the proposed surgery is reasonably necessary. I accept the respondent’s submission at [7.1.21] where the following is put:

   “It is appreciated the appellant is effectively seeking to apply the further part of Roche DP’s analysis in Raulston v Toll Pty Ltd which observed whether:

   ‘the evidence, properly evaluated, demonstrates a contrary view which ought oust the view taken by the Arbitrator.’”

2. The appellant, quite forcefully, states that the Arbitrator overlooked material facts, ignored relevant material and arrived at a decision which was contrary to the preponderance of the medical opinion in favour of the operation. If these submissions are made out, the conditions for intervention on appeal as articulated by Roche DP in such circumstances, would be enlivened.

3. All of the doctors involved in this matter found that the appellant suffered from various pathologies at different levels, C3/4, C5/6, and C6/7. There is a debate between the doctors as to which might be the more serious pathology. In terms of the evidence, there are three main opinions that had to be grappled with, namely the opinions of Drs Singh, Bodel and Rimmer. All three doctors had before them the results of the x-rays, MRIs and bone scans. However, Dr Singh had the added benefit of the knowledge of the relief experienced by the appellant after the C3/4 block injection. When Dr Bodel was made aware of this fact, his opinion changed. Dr Rimmer however did not have the benefit of this knowledge which was obviously of diagnostic importance to Drs Singh and Bodel. This issue, as I have found above, had to be grappled with by the Arbitrator. Reading the medical evidence, it is clear that the fact of the experience of this pain relief was germane to the ultimate opinions reached by Drs Singh and Bodel. It was therefore incumbent upon the Arbitrator to deal with this issue. As a result of this failure, the Arbitrator was not able to properly construe the medical opinion which was to the effect that the proposed surgery was reasonably necessary.

4. I therefore find ground One to be established.

DECISION

1. The majority of the appellant’s appeal has been unsuccessful, but the appellant has established four of the 16 grounds advanced. They are Grounds 1, 6, 7 and 8. On appeal, a decision may be confirmed, revoked or a new decision made in its place. Alternatively, the matter may be remitted to an Arbitrator for determination in accordance with the decision or directions of the Commission.[127]

   [127] Section 352(6A) of the 1998 Act.

2. This matter involves an application by the appellant for surgery, the estimated cost of which was particularised by Dr Singh, the appellant’s treating surgeon, in the sum of $21,663.80.[128]

   [128] ARD, p 27.

3. This matter was commenced under the former Workers Compensation Commission. Section 367 of the 1998 Act directed the Commission as follows:

   “(1)    The Commission has the following objectives:

   (a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,

   (b) to reduce administrative costs across the workers compensation system,

   …

   (2)     In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.”

4. Notwithstanding the importance of this matter to the appellant worker, the sum in dispute is modest and both parties are entitled to have this matter decided in conformity with the Workers Compensation Commission’s objectives.

5. Given that there are no credit issues in this matter and that the issues between the parties are confined to the construction of the medical evidence, I will revoke the Arbitrator’s decision and will, consistent with s 352(6A) of the 1998 Act, proceed to redetermine the matter.

Redetermination

1. The approach to what is reasonably necessary for the purposes of s 60 was extensively canvassed by Deputy President Roche in Diab v NRMA Ltd.[129] In particular, the Deputy President in Diab from [76]–[91] reviewed the authorities and settled upon the approach to be taken in matters such as this. With respect, I endorse and adopt that approach and will apply it in this matter.

   [129] [2014] NSWWCCPD 72 (Diab).

Discussion

1. As I have stated above, the contest in this matter did not involve any assessment of credit, rather this matter was focussed upon firstly the appropriate construction and/or inferences to be drawn from the medical evidence in deciding whether the proposed surgery was reasonably necessary.

2. In considering the matters which arose on appeal, I have had cause to carefully examine the medical evidence in this case. Ultimately, the matter came down to a contest between the opinions of three doctors; Singh, Bodel and Rimmer. Dr Dalton provided an opinion which was relatively early in the appellant’s treatment and before further, more detailed, examinations and the block injection. No criticism can arise with respect to Dr Dalton’s report given that it was delivered at a point in time before the majority of investigations had been undertaken. However Drs Singh, Bodel and Rimmer did have the benefit of all of the investigatory material as well as the opportunity to examine the appellant in light of the outcomes of those investigations. In short, these three medical specialists had been fully instructed with all relevant material and were each well placed to assist this Commission in the appellant’s application. However there is one piece of information that Dr Rimmer was lacking as opposed to Drs Singh and Bodel. This information relates to the relief experienced by the appellant after he received the block injection at C3/4. It is apparent from a consideration of the reports of Drs Singh and Bodel that from a diagnostic point of view, the post injection experience of the appellant confirmed the opinion of these two doctors regarding the appellant’s pathology at the C3/4 level. Both then concur that the proposed surgery is reasonably necessary. Whilst Dr Bodel’s second report does not set out at length the reason for his change of opinion, a consideration of his second report reveals that the post injection findings were determinative in Dr Bodel’s mind.

3. In terms of Dr Rimmer’s report, I would not be persuaded to accept his opinion. Dr Rimmer states “[h]is examination of the cervical spine and lumbar spine was normal”[130] in answer to a question as to whether or not the proposed surgery was reasonably necessary. On no view of the evidence could the view be taken that the appellant’s cervical and lumbar spine was normal. Indeed Dr Rimmer himself comments that the level recommended by Dr Singh, C3/4, was incorrect and that the “overwhelming pathology is at C6/7”.[131] This is hardly consistent with the normal finding that the doctor makes in his report.

   [130] Reply, p 23.

   [131] Reply, p 22.

4. I therefore find, on the basis of Dr Singh and Dr Bodel’s opinions, that the proposed anterior cervical decompression and fusion is reasonably necessary as a result of the injury the appellant is deemed to have received on 10 October 2019. I accept the doctors’ opinion that this is appropriate treatment for the appellant’s condition.[132] No issue was taken as to the proposed cost of the surgery, or the reasonableness of that cost in the amount claimed or as compared to other treatments. I am particularly taken by Dr Singh’s opinion that “[w]ithout surgery he can expect gradual deterioration of pain and function”.[133] As Burke CCJ said in Rose v Health Commission (NSW):[134]

   “It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.”[135]

   [132] Dr Singh, ARD, p 34; Dr Bodel, ARD, p 43.

   [133] Dr Singh, ARD, p 34.

   [134] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).

   [135] Rose, 48A

5. In this case, the appellant has over a period of time undertaken a range of investigations and has closely consulted with his treating doctors. He has also had the benefit of a second opinion which was obtained at his request. He has, consistent with the advice of his surgeon, decided to proceed with the surgery which is recommended. This Commission, mindful of the remarks of Burke CCJ in Rose, is of the view that the appellant should be permitted to proceed with the recommended surgery.

Decision

1. The Arbitrator’s determination of 22 January 2021 is revoked.

2. In accordance with s 352(6A) of the 1998 Act, upon Redetermination, I find that the proposed surgery recommended by Dr Singh, namely the proposed anterior cervical decompression and fusion, is reasonably necessary and as a result I enter an award in favour of the appellant with respect to the proposed surgery.

Judge Phillips
PRESIDENT

4 November 2021