Sutherland v D E Maintenance Pty Ltd - [2019] NSWWCCPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sutherland v D E Maintenance Pty Ltd [2019] NSWWCCPD 39
APPELLANT:	Jamie Sutherland
RESPONDENT:	D E Maintenance Pty Ltd
INSURER:	AAI Limited trading as GIO Agent for Icare Workers Insurance
FILE NUMBER:	A1-6313/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	12 February 2019
DATE OF APPEAL DECISION:	26 July 2019
SUBJECT MATTER OF DECISION:	Fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Turks Legal
ORDERS MADE ON APPEAL:	1. The appellant’s application to rely on fresh or additional evidence pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The Arbitrator’s decision dated 12 February 2019 is revoked. 3. The matter is remitted pursuant to s 352(7) of the 1998 Act for re-determination by a different Arbitrator.

INTRODUCTION AND BACKGROUND

Jamie Sutherland (the appellant) was employed by D E Maintenance Pty Ltd (the respondent) in the installation of sprinkler and fire systems. He suffered injury (the occurrence of which is not in issue) on 21 September 2017. He was up a ladder removing an air conditioning vent that weighed 1 to 1½ kilograms, when he lifted it and twisted. He said he experienced pain in the lower back and neck. He took periodic time off work, and the respondent’s insurer accepted the claim, paying weekly payments and medical expenses. The appellant was off work from 19 February 2018. He came under the care of Dr Darwish, a neurosurgeon. Treatment involving exercises, physiotherapy and hydrotherapy did not alleviate the lower back pain, which the appellant said got worse.[1]
[1] Appellant’s statement dated 29 November 2018, [4]–[15], Application to Resolve a Dispute (ARD), pp 70–71.
In June 2018 Dr Darwish recommended surgery, involving laminectomy, discectomy and fusion at L5/S1. The appellant was examined at the insurer’s request by Dr Peter Bentivoglio, and the request that the insurer fund the proposed surgery was declined, in a s 74 notice dated 1 August 2018.[2] The reason given was that the surgery was not reasonably necessary, the insurer relying on the opinion of Dr Bentivoglio.[3] The appellant subsequently saw another neurosurgeon, Dr Day. Dr Day also recommended surgery, but expressed the view that disc replacement (L5/S1 total disc arthroplasty) was preferable to fusion.[4]
[2] ARD, pp 78–79.
[3] Dr Bentivoglio’s report dated 25 July 2018, Reply, pp 1–5.
[4] Dr Day’s report dated 8 October 2018, ARD, pp 23–24.
The current proceedings sought orders compelling the respondent to pay for the costs of the proposed surgery, pursuant to s 60(5) of the Workers Compensation Act 1987. The procedure sought is that recommended by Dr Day. [5]
[5] ARD, p 6 (Pt 5.3).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS AND DECISION

The ARD commencing these proceedings was registered on 30 November 2018. It was listed for arbitration hearing on 6 February 2019. Mr Robison, instructed by Mr Narsimullu, appeared for the appellant. Mr Combe, instructed by Mr Elder, appeared for the respondent. There was no oral evidence, the matter proceeded on the basis of the written material. After hearing submissions by the appellant’s counsel, the Arbitrator took a short adjournment, and then gave an ex tempore decision.
The Arbitrator described the appellant as having suffered “what would appear to be a very serious injury”.[6] The Arbitrator described the x-ray report dated 25 September 2017, and the MRI scan reports dated 24 October 2017, 21 May 2018 and 14 August 2018. He described the scans as not revealing “any significant pathology”.[7] The Arbitrator referred to Dr Darwish’s report dated 5 June 2018, the complaints recorded, and the history of the appellant’s failure to respond to conservative treatment. He noted Dr Darwish described “stiffness and pain down the right buttock”, but not “any complaints of leg symptoms at all”.[8] The Arbitrator referred to Dr Darwish’s report dated 26 June 2018. Again, there was a history of lower back and right buttock pain. There was a history of the use of Oxycontin and Panadeine Forte. The Arbitrator said that Dr Darwish “talks of curing leg pain that he had no history of”, and did “not engage with the investigations”.[9] The Arbitrator said of the investigations:
“It may be that within the MRIs there was room to suggest that symptoms experienced by Mr Sutherland could be explained but on their face – and this is what was taken up by Dr Bentivoglio – on their face they do not indicate any pathology that could be responsible for Mr Sutherland's symptoms, which include an antalgic gait noted by Dr Gehr (ARD 5).”[10]
[6] Transcript of reasons, Sutherland v D E Maintenance Pty Ltd (6313/18), 6 February 2019 (T), T 1.23–24.
[7] T 4.1.
[8] T 4.6–28.
[9] T 4.31–5.9.
[10] T 5.14–21.
The Arbitrator referred to the clinical notes from the Royale Medical Centre,[11] and said that from 27 December 2017 to 10 May 2018, the notes involved “further medication; prescriptions being issued without any reference of any symptoms”.[12] The Arbitrator described the absence of explanation of the appellant’s symptoms, by Dr Darwish, as “a significant evidentiary difficulty in this case”.[13] The Arbitrator referred to the report of Associate Professor Sheridan, a neurosurgeon who furnished a second opinion, dated 11 September 2018. There was a history of “persisting lower back pain and leg pain with paraesthesia and numbness extending to his foot on the right”. The Arbitrator quoted from Associate Professor Sheridan’s report, in which the Professor said:
“He has an MRI scan which shows disc bulging and nerve compression at L5/S1 consistent with his symptoms.”[14]
[11] ARD, pp 26–61.
[12] T 6.13–15.
[13] T 6.20–24.
[14] Associate Professor Sheridan’s report dated 11 September 2018, ARD, p 22, quoted at T 6.28–7.13.
The Arbitrator said that none of the MRI scan reports “suggest nerve root involvement”, and what the Professor “meant by ‘nerve root compression’ consistent with symptoms is unexplained”. He said that “some explanation was required”, but “[n]o such explanation was given.”[15]
[15] T 7.15–31.
The Arbitrator then referred to the report of Dr Day. Dr Day, in his report dated 8 October 2018, referred to the presence of “L5-S1 degeneration retrolisthesis L5 on S1 and a posterior central annular tearing at L5-S1 and the dessication changes”.[16] The Arbitrator said there had been “no mention [of] a retrolisthesis L5 on S1”. He said:
“It is the sort of pathology that one would expect to be commented on by a radiologist, and it was not observed by either Dr Yadav or Dr Wong. I am not satisfied that Dr Day’s interpretation of the MRI is dependable. It was such a precise interpretation of the scan that one would have expected some explanation as to why the retrolisthesis was not picked up by the expert radiologists.”[17]
[16] ARD pp 23–24, quoted at T 8.12–16.
[17] T 8.23–30.
The Arbitrator noted Dr Day’s preference for “an L5/S1 total disc arthroplasty”, and his estimate of the cost.
The Arbitrator then referred to the report of Dr Gehr, an orthopaedic surgeon qualified by the appellant’s solicitors, dated 24 October 2018. He said Dr Gehr did not comment on the investigations, beyond noting the MRI dated 14 August 2018 “showed a central disc bulge/protrusion and a small annular tear”. The Arbitrator noted the current symptoms recorded by Dr Gehr “were of pain in the mid lumbar area but no leg pain”. On examination the appellant “walked with an antalgic gait”. He quoted Dr Gehr’s opinion that the appellant had “a current lumbar spine injury with significant pain, dysmetria and right radicular pain following L5/S1 distribution”. The Arbitrator said this “may not be totally accurate because according to the examination I just referred to, Dr Gehr found there was no leg pain”.[18]
[18] ARD, pp 1–8, referred to at T, 9.11–11.2.
The Arbitrator said that, in the case of Dr Gehr, “[a]gain, there is no engagement with the unhelpful nature of the investigations”. He said:
“In the case of all four experts on Mr Sutherland’s side who have recommended this invasive procedure, their recommendation has been based upon symptoms only. As I have indicated, those symptoms vary from doctor to doctor.”[19]
[19] T 11.7–11.
The Arbitrator then turned to consider the report of Dr Bentivoglio, qualified by the respondent. He noted the history, which included that the appellant complained of “back pain going in to the right leg, tingling in the buttocks, and that the right leg gave way”. The appellant stated that he was “no better”. The doctor described the MRI scan dated 21 May 2018 as showing “a small central L5/S1 bulge but no evidence of neurological compression or compromise”. There were said to be “multilevel degenerative disc changes. These are only minor.” He diagnosed “Axial back pain from minor disc changes”. Regarding the proposed surgery, the doctor said:
“I do not believe that he will make great benefit from having an anterior interbody fusion with a minor disc injury that he has at the L5/S1 level, especially as he has no evidence of neurological dysfunction.”[20]
[20] Reply, p 4, quoted at T 13.8–12.
The Arbitrator also referred to a passage from Dr Bentivoglio’s report where the doctor said “[t]he only injury that he had was trivial.” He referred to a submission on the appellant’s part, that this deprived the doctor’s opinion of weight, as the injury was not trivial. The Arbitrator rejected this submission, saying that “Dr Bentivoglio was referring to the mechanism of the injury, rather than the diagnosis of the problem itself”. He said Dr Bentivoglio’s opinion was “within a fair climate”.[21]
[21] T 13.21–14.12.
The Arbitrator quoted Dr Bentivoglio’s opinion regarding the proposed surgery:
“One would have to say that as a consequence of the twisting injury at work this is what has caused his low back pain. It does not explain his sciatic leg pain. The nerves are not compressed on MRI scan so why he is having the leg pain is unclear. The steroid injection that he had has not afforded him any benefit and I do not feel that operative intervention will afford him any benefit.”[22]
[22] Reply, p 4, quoted at T 14.16–23.
The Arbitrator also quoted from a supplementary report of Dr Bentivoglio dated 8 November 2018, which specifically asked whether either of the surgical procedures suggested by Dr Darwish or Dr Day was “reasonably necessary”:
“I have clearly stated that I thought he only had a minor disc injury at the L5/S1 level with no evidence of neurological compression and I did not feel operative intervention was appropriate at this stage.”[23]
[23] Reply, p 6, quoted at T 14.30–34.
The Arbitrator accepted the opinion of Dr Bentivoglio, declined “to make the declaration sought”, and entered an award for the respondent in respect of “this particular claim”.[24]
[24] T 15.1–3, 15.28–33.
The Certificate of Determination issued on 12 February 2019 records:
“The determination of the Commission in this matter is as follows:
1. I decline to make the declaration sought and there will be an award in favour of the respondent.”
This appeal is brought against the order set out in the preceding paragraph.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Arbitrator erred in reaching conclusions that were contrary to the weight of the evidence (Ground No. 1);
(b)    The Arbitrator erred by not giving weight to evidence of neurological problems other than radiological evidence (Ground No. 2);
(c)    The Arbitrator erred by not applying the principles of expert evidence to the evidence of Dr Bentivoglio (Ground No. 3);
(d)    The Arbitrator erred by giving a decision which was illogical in that he accepted that all conservative treatments had failed but declined to find that surgery was reasonable (Ground No. 4), and
(e)    The Arbitrator erred in finding that Dr Gehr did not read the documents briefed to him in circumstances where there was no evidence to permit such a finding (Ground No. 5).

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

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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.”
In Raulston v Toll Pty Ltd,[25] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[26] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[27]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[28]
[25] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[26] (1966) 39 ALJR 505, 506 (Whiteley Muir & Zwanenberg).
[27] [1996] HCA 140; 140 ALR 227.
[28] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[29] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[30]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[31]
[29] [2017] NSWWCCPD 5, [67].
[30] [2001] FCA 1833, [28].
[31] Raulston, [20].
In Northern NSW Local Health Network v Heggie[32] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[32] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

FRESH EVIDENCE

The appellant seeks to rely on fresh or additional evidence on this appeal. Such applications are governed by s 352(6) of the 1998 Act, which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.

The evidence the subject of the application

The two relevant documents are attached to the appellant’s Application to Appeal. One is a statement of Mr Narsimullu, the appellant’s solicitor, dated 18 March 2019. It simply identifies a report of Dr Day dated 11 February 2019, forwarded to Mr Narsimullu by the appellant on 19 February 2019. The other is a report of Dr Day dated 11 February 2019 (further report). It states that on reviewing the appellant he was told that, at the arbitration hearing, it was said that there was “no evidence of nerve compression on his MRI scans”.
The further report says that Dr Day never said that the appellant “has a nerve compression radiculopathy”. The further report continues, saying that the appellant sustained injury resulting in “internal disruption of his L5/S1 disc and set up a chronic pain pattern that limits his functional capacity and his weight bearing capacity”. The doctor refers to “negative sitting straight leg raising to 90 degrees bilaterally” and “intact strength and reflexes in the lower extremities”. The doctor says “the pain origin here is loadbearing on an injured load bearing segment in his spine, which is his L5/S1 disc”. The doctor says that “total disc replacement will give him the best potential for a more functional outcome and a long-term functional capacity improvement”.

Appellant’s submissions

The appellant submits the further report “clarifies the point that surgery is reasonable and necessary”. It is a document “generated by the doctor without having been so solicited by any party”. It is not because of a lack of forensic diligence that it “came into the worker’s possession now”.[33]
[33] Appellant’s submissions, Pt A, [2.5].
In the submissions in reply, the appellant describes the further report as “crucially important as it shows that the proposed surgery is required even in the absence of nerve compression radiculopathy”. The appellant submits the further report “could not have been obtained prior to the arbitration”. It “corrects a ‘misunderstanding’ arising from the arbitral decision itself”.[34]
[34] Appellant’s submissions in reply, [3]–[4].

Respondent’s submissions

The respondent opposes the admission of the fresh evidence. It submits that, other than the reference in the further report to what was said at the arbitration hearing, the balance of the document addresses pathology and findings on examination. It could reasonably have been obtained before the arbitration hearing. Regarding the second limb of s 352(6), the report adds nothing to an understanding of the claim. The respondent submits that nothing in it provides additional support for the proposed surgery. It does not deal with Dr Day’s identification of an L5/S1 retrolisthesis in the MRI scan dated 14 August 2018. The refusal of leave would not cause substantial injustice.

Consideration

In Heggie Sackville AJA (Ward JA agreeing) said:
Section 352(6) permits the Commission to grant leave to adduce fresh or additional evidence if satisfied of the conditions specified in the sub-section. Having regard to the limited nature of the appeal under s 352(5), the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous: CDJ v VAJ [1998] HCA 67; 197 CLR 172, at [109], per McHugh, Gummow and Callinan JJ.[35]
[35] Heggie, [66].
In CHEP Australia Ltd v Strickland[36] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[36] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd[37] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[37] [2015] NSWWCCPD 10 (Drca), [28].
Much of the further report consists of a description of complaints and findings on examination. Such evidence is typically found in reports from treating specialists, and I accept the respondent’s submission that such evidence could have been obtained prior to the arbitration hearing.
The primary thrust of the further report is that Dr Day never considered that the appellant suffered from nerve compression radiculopathy. Although not spelled out specifically, the references to unrestricted sitting straight leg raising, and intact strength and reflexes in the lower extremities, are probably to be taken as demonstrative of this point. The doctor describes the disc injury as having “set up a chronic pain pattern that limits [the appellant’s] functional capacity and his weight bearing capacity”. The doctor refers to pain relief when the appellant lies flat, taking load bearing off his spine. The view put is that the doctor’s recommendation of surgery was based not on the relief of nerve compression, but rather on seeking to reduce load bearing pressure on the injured disc.[38]
[38] Attachment to the Application to Appeal.
This explanation of the doctor’s view, of why the surgery is necessary, could have been obtained before the arbitration hearing. Dr Bentivoglio’s report dated 25 July 2018 was furnished to the appellant under cover of the s 74 notice dated 1 August 2018.[39] It must have been apparent, from that time, that the presence or absence of nerve compression was an important foundation of the view of Dr Bentivoglio, on which the respondent relied in its defence of the claim. The “Statement of the insurer and claimant issues” in the s 74 notice specifically raised the following:
“(d) Dr Bentivoglio specifically considered the request from Dr Darwish and concluded that the L5-S1 Laminectomy, Discectomy and PLIF Fusion surgery was not reasonably necessary as there was no evidence of neurological dysfunction, and did not see any benefit to you.
(e) Noting the opinion expressed by Dr Bentivoglio, GIO dispute that the proposed L5-S1 Laminectomy, Discectomy and PLIF Fusion surgery is reasonably necessary as required by section 60 of the Act.”
[39] ARD, pp 78–79.
Dr Bentivoglio, in his first report, expressed the view quoted at [15] above.[40] The doctor said he did “not feel that operative intervention will afford him any benefit”. He gave two specific reasons for concluding the surgery then proposed (L5/S1 discectomy and fusion) would not afford great benefit. The first was that the L5/S1 disc injury was “minor”. The second was that there was “no evidence of neurological dysfunction”.
[40] Dr Bentivoglio’s report dated 25 July 2018, Reply, p 4.
Dr Bentivoglio’s supplementary report dated 8 November 2018 was attached to the Reply,[41] and was in the possession of the appellant’s solicitors from at least when that document was served on them. The Reply was lodged on 19 December 2018, and the arbitration hearing was conducted on 6 February 2019. That supplementary report dealt with whether discectomy, accompanied by either fusion or disc replacement, was “reasonably necessary”. Dr Bentivoglio’s opinion on this question is quoted at [18] above.
[41] Reply, pp 6–7.
It was apparent from shortly after 1 August 2018 that there was a significant medical issue regarding whether the appellant’s back injury was associated with nerve compression, and the consequences of this in terms of whether the proposed surgery was reasonably necessary. Medical evidence on this topic could have been obtained from any or all of the doctors on whose opinion evidence the appellant relied, for use in the proceedings before the Arbitrator. Dr Day’s report dated 8 October 2018, relied on at the arbitration hearing, gave reasons for why the doctor preferred the option of total disc arthroplasty to fusion. It did not contain an explanation of why the doctor considered the option of surgery in a more general sense (either fusion or total disc arthroplasty) was appropriate in the circumstances. The absence of such opinion must have been apparent prior to the arbitration hearing. It follows that “with reasonable diligence, [the further report] was readily available at the arbitration”.[42] I do not accept the appellant’s submission that the further report flowed from a need to correct a “misunderstanding” at the arbitration hearing. It follows that the appellant cannot satisfy the first limb of the statutory test described in Strickland.
[42] See the passage of Drca at [36] above.
This leaves the second limb of the statutory test. The reports of Dr Darwish were not of a medico-legal nature, and were brief in their description of signs. In the report dated 5 June 2018 Dr Darwish described a continuing complaint of “lower back pain and stiffness and pain down the right buttock”. In the report dated 26 June 2018, Dr Darwish recorded a continuing complaint of “lower back pain and pain in the right buttock”. Notwithstanding the absence of recorded leg symptoms in those of his reports in evidence, Dr Darwish said his proposed surgery “had 80% chance of improving his leg symptoms”.[43] This apparent discrepancy was commented on by the Arbitrator.[44] Dr Darwish’s reports were silent regarding the presence or absence of nerve compression. Nor did they refer to the radiological investigations.
[43] ARD, pp 16–18.
[44] T 5.7–8.
Dr Bentivoglio, examining the appellant on 16 July 2018 at the insurer’s request, recorded the appellant was “now complaining of low back pain going into the right leg and tingling in his buttocks and his right leg gives way”. He described the MRI dated 21 May 2018 as showing “a small central L5/S1 disc bulge but no evidence of neurological compression or compromise”. His findings on examination were:
“His gait was normal. His back movements were guarded. There was no wasting. Straight leg raising on the right side was 70 degrees and on the left 80 degrees. His tone was normal. His power was normal. He [sic, his] reflexes were symmetrical and normal with down going plantar responses. There was no evidence of a radiculopathy.”
Associate Professor Sheridan, who saw the appellant on 10 September 2018, recorded “persisting lower back pain and leg pain with paraesthesia and numbness extending to his foot on the right”. He described an MRI scan (which one is not identified) as showing “disc bulging and nerve compression at L5-S1 consistent with his symptoms”. The doctor described the proposed fusion as “entirely reasonable and appropriate given the circumstances and his failure of conservative treatment”.[45]
[45] ARD, p 22.
Dr Gehr, the orthopaedic surgeon qualified in the appellant’s case, on 24 October 2018 recorded a history of “mid-lumbar pain going down the right leg” at the time of injury. He also recorded a history that “the leg pain now has gone”.[46] Dr Gehr also recorded (unlike Dr Day’s findings) “Straight leg raising, SLR, sitting, right side less than 20, left side 40 degrees”, “decreased motor power L5 on the right side”, and “decreased sensation L5/S1 on the right side, confirmed by 2-point sensory discrimination”. In his summary he said the appellant “has a current a lumbar spine injury with significant pain, dysmetria and right radicular pain, following L5/S1 distribution”.[47]
[46] ARD, p 4–5.
[47] ARD, p 6.
In Strickland the Court of Appeal rejected a construction of s 352(6) of the 1998 Act, that “the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so”.[48] The criterion requires that a different result emerge, if the further report is to be taken into account. The appellant carries the persuasive onus on this topic.[49]
[48] Strickland, [30]–[31].
[49] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, 302.
The medical evidence overall presents a confused picture. Dr Darwish did not refer to the investigations or his findings on examination, and was silent as regards the presence of nerve compression. Associate Professor Sheridan thought there was nerve compression demonstrated on an MRI, consistent with the appellant’s symptoms. Dr Gehr thought there was radicular pain following an L5/S1 distribution. Dr Bentivoglio thought the MRI dated 21 May 2018 showed no evidence of neurological compression or compromise, and there was no evidence of a radiculopathy. When examined by Associate Professor Sheridan on 10 September 2018, the appellant complained of “persisting lower back pain and leg pain with paraesthesia and numbness extending to his foot on the right”. When examined by Dr Gehr on 24 October 2018, the appellant did “not report leg pain at this stage”, and “the leg pain now has gone”. The appellant’s straight leg raising was 70 degrees right and 80 degrees left when examined by Dr Bentivoglio on 16 July 2018. When examined by Dr Gehr on 24 October 2018 straight leg raising was 20 degrees right and 40 degrees left.
Against this background, the further report of Dr Day indicates that doctor “never stated that [the appellant] has a nerve root compression radiculopathy”. Dr Day records 90 degrees sitting straight leg raising bilaterally, and “intact strength and reflexes in the lower extremities”. In his apparent rejection of the presence of nerve compression radiculopathy, Dr Day is consistent with Dr Bentivoglio on this aspect of the diagnosis. Both accept there was a disc injury at L5/S1. Where these two doctors part company is that Dr Day in the further report considers the surgery he proposes is appropriate to reduce loadbearing on the L5/S1 disc; Dr Bentivoglio does not regard the surgery as reasonably necessary, given the minor nature of the discal injury and the lack of neurological compression.[50]
[50] Reply, p 6.
The appellant submits the further report of Dr Day demonstrates the surgery is required in the absence of nerve compression radiculopathy.[51] The appellant’s submissions do not demonstrate why, of the two doctors who specifically approach the matter on the basis that nerve root compression is not present, the view of Dr Day is to be preferred. In balancing the views of the doctors, it is noteworthy also that Dr Day’s rationale of the need for surgery differs from the approach of Associate Professor Sheridan and Dr Gehr. Dr Darwish’s reasoning process is not sufficiently illuminated for him to assist in this regard.
[51] Appellant’s submissions in reply, [4].
Dr Day’s opinion does not marry up with those of Associate Professor Sheridan and Dr Gehr. Those doctors considered surgery was appropriate in the presence of nerve compression. Dr Day does not regard nerve compression as being present. Dr Day’s opinion does not marry up with that of Dr Bentivoglio, who regarded the relevant surgery, in the absence of nerve compression, as not reasonably necessary. Dr Day’s opinion, in the further report, would be the solitary specialist opinion that considers the proposed surgery appropriate, in the absence of nerve compression. There is no developed argument, dealing with why the opinion of Dr Day would be preferred to the opinions of the other specialists in this regard.
I am not satisfied that the appellant has established that the further report of Dr Day would result in a different result emerging, if it were taken into account. The second limb of the statutory test described in Strickland is not satisfied. It follows that the threshold questions in s 352(6) of the 1998 Act are not satisfied, and the discretion pursuant to that subsection is not enlivened. The appellant’s application to admit the further report of Dr Day is refused. The statement of the appellant’s solicitor dated 18 March 2019 had no relevant probative force of its own, save for identifying how the further report came into the possession of the appellant’s solicitors. For the same reasons, the application to admit that document is rejected.

GROUND NO. 1 – THE WEIGHT OF EVIDENCE

Appellant’s submissions

The appellant refers to the reports of Dr Gehr, Dr Darwish, Associate Professor Sheridan and Dr Day, referred to above. He additionally refers to a short report from Dr Mechreky (the appellant’s general practitioner) to the insurer, dated 13 July 2018.[52] In that report, Dr Mechreky expressed his disagreement with an injury management plan, saying that the appellant “is waiting on approval for surgery and I feel that until this happens he cannot physically begin any employment”. The appellant submits Dr Mechreky would be expected to have an intimate knowledge of the failed conservative treatment over time. The appellant also refers to a report of Mr Yin, a physiotherapist, dated 3 September 2018.[53] Mr Yin referred to the persistence of ongoing pain notwithstanding regular physiotherapy since September 2017, and to Dr Darwish’s recommendation for surgery. Mr Yin said he recommended surgery “as suggested by his specialist”.[54]
[52] ARD, p 19.
[53] ARD, p 21.
[54] Appellant’s submissions, [4]–[5].
The appellant submits Dr Bentivoglio was the only view contrary to the six experts on which the appellant relied. The appellant submits it is “remarkable”, where evidence is to be weighed against other evidence, that there would be a finding the proposed surgery was not reasonably necessary. It was supported by all of the treating practitioners. The appellant submits there was evidence going to the probability of the surgery working, and the statement that prior treatment had been ineffective. The appellant submits the effectiveness of the treatment is relevant, referring to Diab v NRMA Ltd.[55]
[55] [2014] NSWWCCPD 72.
In his submissions in reply, the appellant describes it as “remarkable” that Dr Bentivoglio “would prevail against literally every other medical view”.[56] It is also submitted that Associate Professor Sheridan’s view regarding interpretation of an MRI “is not incorrect merely because a radiologist had a different interpretation of a scan”.[57] The appellant makes a related submission, dealing with Ground No. 2, where it is submitted:
“Evidence of radiculopathy may include that which is revealed upon physical examination, such as motor or sensory deficits. It may also be evidenced by the history provided by the patient. Certainly, it may be well something which is apparent from radiology, but a neurologist would be well placed to interpret the films with an eye specifically attuned to neurological deficit, perhaps more so than a radiologist. Whilst a radiologist may have superior expertise on the interpretation of films per se, a neurosurgeon has superior expertise in understanding those films in conjunction with conducting a physical examination and taking a full history, particularly when it is a neurosurgeon and not a radiologist who makes the final decision on recommending surgery. That is, the absence of specific reference in the radiology report evidence (eg ARD p 9), as opposed to the radiological films themselves as reviewed by the doctors is not alone determinative of the question of the existence of radiculopathy.”[58] (emphasis in original)
[56] Appellant’s submissions in reply, [5].
[57] Appellant’s submissions in reply, [2(d)].
[58] Appellant’s submissions, [7].

Respondent’s submissions

The respondent refers to Raulston. It submits the Arbitrator engaged in a comprehensive review of the evidence. He balanced the opinions of the surgeons against the objective evidence of pathology in the MRI reports. He gave reasons for why he did not accept the opinions of the various surgeons relied on in the appellant’s case. The Arbitrator correctly noted that all four of the surgeons in the appellant’s case gave support on the basis of “symptoms only”, and observed that those symptoms “vary from doctor to doctor”.[59]
[59] Respondent’s submissions, [18]–[20].
The respondent submits the evidence of Dr Bentivoglio was accepted as it accorded with the objective evidence in the MRI scan reports. His view was that there was no need for surgical intervention in the absence of neurological compromise. Dr Bentivoglio’s opinion was accepted “after a thorough review of the evidence”. The respondent submits the appellant’s reference to the evidence of Dr Mechreky and Mr Yin does not assist the appellant, those practitioners were guided by the opinions of the surgeons. Unless the surgeons’ opinions were accepted, the appellant could not succeed.[60] The respondent, in its submissions dealing with Ground No. 2, submits that in forming his view about the presence of nerve compression, Associate Professor Sheridan “plainly misreported the MRI scans. If there was neural compression, rationally it would be commented on in all the MRI scan reports.” [61]
[60] Respondent’s submissions, [20]–[21].
[61] Respondent’s submissions, [24].

Consideration

The opinion of Mr Yin does not add to the appellant’s medical case. Mr Yin is a physiotherapist, there is no reason to believe that assessing the appropriateness of spinal surgery is part of his expertise. As the appellant’s submissions correctly concede, Mr Yin simply defers to the opinion of the appellant’s surgeon (Dr Darwish at that point in time) in any event. The short report from Dr Mechreky similarly does not assist the appellant’s case. To the extent that the appellant submits that these practitioners confirm conservative treatment had not cured the appellant’s symptoms, this can be gleaned in any event from the specialist evidence, and was accepted by the Arbitrator.[62] The appellant’s medical case effectively depends on the evidence from Dr Darwish, Associate Professor Sheridan, Dr Day and Dr Gehr.
[62] T 1.30–31.

The appellant’s submissions tend to suggest that the opinion of Dr Bentivoglio should not have been accepted, in that there was a greater bulk of medical opinion relied on by the appellant than the respondent (see [54] to [55] above). Such an approach would be inappropriate. The medical contest was not to be decided on the weight of numbers, but on a reasoned preference for one view over the other. The Arbitrator was confronted by competing medical cases. In Hume v Walton[63] McColl JA said:
“… where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).[64]
[63] [2005] NSWCA 148 (Hume).
[64] Hume, [69].
There is some overlap between the subject matter of Grounds Nos. 1 and 2, and some submissions made by the parties in respect of Ground No. 2, that are relevant to Ground No. 1, are referred to below.
Because of the nature of the challenge to the Arbitrator’s factual findings, the Arbitrator’s reasons are summarised at some length, at [8] to [19] above. The Arbitrator acknowledged the appellant’s lack of relief with conservative treatment, saying “he has undergone many forms of treatment to try and alleviate his condition without success”.[65] The Arbitrator engaged in a summary of the three MRI scan reports, dated 24 October 2017, 21 May 2018 and 14 August 2018.[66] The Arbitrator then considered the reports from the surgeons on which the appellant relied.
[65] T 1.30–31.
[66] T 2.11–3.32.
The first of these was Dr Darwish. The Arbitrator observed that Dr Darwish referred to pain in the low back and right buttock, but not to leg symptoms.[67] He was critical of Dr Darwish for not engaging with the investigations, describing these as not indicating “any pathology that could be responsible for Mr Sutherland’s symptoms”. He described this as a point “taken up by Dr Bentivoglio”, noting there were complaints of an antalgic gait noted by Dr Gehr.[68] The Arbitrator said there may be an explanation for the symptoms, but there was a “failure by Dr Darwish to refer to them and explain them at any time”.[69] In fairness to Dr Darwish, it should be noted the three reports of his that are in evidence (5 June 2018 [x2] and 26 June 2018) are not comprehensive medicolegal reports, but are short reports to the appellant’s general practitioner, together with costing of the proposed surgery sent to the insurer. The reports contain little by way of analysis of the pathology or the basis on which surgery was recommended, other than the fact that conservative treatment had failed to produce an improvement.
[67] T 4.25–29.
[68] T 5.6–21.
[69] T 6.20–24.
There was foundation for the criticism made by the Arbitrator of the evidence from Dr Darwish. That doctor’s reports (at least those in evidence) do not refer to any of the investigations or to clinical signs. They contain no analysis of why the recommended surgery is reasonably necessary in the circumstances.
In South Western Sydney Area Health Service v Edmonds[70] McColl JA (Giles and Tobias JJA agreeing) said:
“130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
131 This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.[71]
[70] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
[71] Edmonds, [130]–[131]. See also, Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [2]–[3].
The opinion of Dr Darwish, in evidence, constituted little more than a bare ipse dixit, to employ the language of her Honour in Edmonds. The reports did not refer to the underlying facts on which the opinion was based, particularly clinical signs and investigations, nor did they adequately expose the doctor’s reasoning process that led to his conclusions.
The medical reports from Dr Darwish were inadequate to establish that the proposed surgery was reasonably necessary. They were entitled to little weight in the circumstances.[72] The Arbitrator rightly did not find them persuasive.
[72] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, [82]–[83] per Beazley JA, as her Honour then was, Giles and Tobias JJA agreeing.
The Arbitrator then referred to Associate Professor Sheridan’s views. He noted the Professor referred to an MRI scan (the Professor did not identify which one) as showing “disc bulging and nerve compression at L5-S1 consistent with his symptoms”. The way in which the Arbitrator then dealt with Associate Professor Sheridan’s opinion was significant, and is set out below:
“Then he recommended the treatment. As I have said, I do not know which MRI scan Professor Sheridan was referring to, but I have above gone through them, and none of them suggest nerve root involvement. So what he meant by ‘nerve root compression’ consistent with symptoms is unexplained. Again, A/Prof Sheridan had an opportunity to say something like:
‘Although the MRI does not show such a nerve involvement, clinical symptoms are important and I am satisfied in this particular case that, notwithstanding the conclusions of the radiologist, the symptoms can be explained.’
However, no such explanation was given and in view of the unhelpful nature of the investigations, some explanation was required.”[73]
[73] T 7.15–31.
The appellant, in his submissions in reply, describes Associate Professor Sheridan’s interpretation of the MRI scan as based on an interpretation of a scan itself, rather than on one of the radiological reports dealing with a scan.[74] The appellant’s submissions dealing with Ground No. 2 make a similar point, where the appellant submits “the professor has had regard to both his interpretation of the MRI scan and his interpretation of the history provided”.[75] Given that none of the radiologists’ reports, dealing with the MRI scans, refer to nerve compression, the appellant’s explanation is probably correct. The description of the MRI scan appearances, in Associate Professor Sheridan’s report, did not come from any of the radiological reports; it may be appropriately inferred it came from Associate Professor Sheridan. The respondent, making submissions on this point in respect of Ground No. 2, submits that “if there was neural compression, rationally it would be commented on in all the MRI scan reports”. It submits Associate Professor Sheridan “plainly misreported the MRI scans”.[76]
[74] Appellant’s submissions in reply, [2(d)].
[75] Appellant’s submissions, [8].
[76] Respondent’s submissions, [24].
The appellant’s statement indicates that he consulted Associate Professor Sheridan for a second opinion.[77] The report was brief, reflecting the circumstances in which it was created. It does not purport to be a full analysis of the type that would appear in a medicolegal report. Be that as it may, Associate Professor Sheridan set out substantial reference to the factual background on which his opinion was based. He recorded “persisting lower back pain and leg pain with paraesthesia and numbness extending to his foot on the right”. He recorded the limitations on the appellant’s day to day activities:
“He cannot sit, stand or walk very far. He cannot do any physical chores. His sleep is disturbed. He is managing the pain with quite large doses of narcotic analgesia now. He has tried physiotherapy and rehabilitation and injections none of which have helped.”
[77] Appellant’s statement dated 29 November 2018, [27], ARD 72.
Associate Professor Sheridan concluded:
“I believe Dr Darwish has recommended a lumbar fusion for him which is entirely reasonable and appropriate given the circumstances and his failure of conservative treatment. I have recommended he go back and see Dr Darwish to arrange this operation.”
The basis on which the Arbitrator dealt with Associate Professor Sheridan’s opinion is set out at [67] above. The Arbitrator assumed that, properly interpreted, whichever of the MRI scans was viewed by the doctor did not demonstrate nerve compression, as none of them had been interpreted that way by the relevant radiologists. The Arbitrator then suggested that, if the Associate Professor’s opinion was that clinical signs were consistent with nerve compression notwithstanding that the MRI scans did not demonstrate this, the Associate Professor should have said so. This was the “explanation” which the Arbitrator said “was required”, but was not given.[78] This ignored the clear statement in his report, that Associate Professor Sheridan himself interpreted an MRI scan as showing nerve compression, and more specifically, nerve compression which in the doctor’s opinion was consistent with the appellant’s symptoms. This is what Associate Professor Sheridan said in his report: “[h]e has an MRI scan which shows disc bulging and nerve compression at L5-S1 consistent with his symptoms”.
[78] T 7.20–31.
Both parties make submissions dealing with the acceptability of Associate Professor Sheridan’s interpretation of the MRI scan that he was shown (see [55] and [57] above). There is some common sense validity in the submissions of both parties. There is no clear evidentiary basis in the medical evidence to accept one or other of these submissions. Identifying a preference for one or the other of the interpretations of the MRI scan was not the course adopted by the Arbitrator. The Associate Professor’s interpretation of a scan was different to the reports from two radiologists. The Arbitrator did not deal with this on the basis that he was required to choose between competing medical opinion on the interpretation of the scans. He approached it on the basis that he had “gone through them [the MRI scans], and none of them suggest nerve root involvement”.[79] That is, the reasons assumed the correctness of the radiological reports, without dealing with the fact that Associate Professor Sheridan’s interpretation was to the contrary.
[79] T 7.17–18.
Following discussion in his reasons, which also dealt with the opinions of Dr Day and Dr Gehr, the Arbitrator dealt with the weight to be afforded to the appellant’s medical case, saying:
“In the case of all four experts on Mr Sutherland’s side who have recommended this invasive procedure, their recommendation has been based upon symptoms only. As I have indicated, those symptoms vary from doctor to doctor.”
Associate Professor Sheridan was a neurosurgeon who assessed the appellant to provide a second opinion on the appropriateness of the surgery recommended by Dr Darwish. The focus of his attention was on an issue closely related to that in these proceedings. His report, whilst not lengthy given the circumstances of his involvement, was based on a satisfactory history of the appellant’s symptoms, the appellant’s failure to respond to conservative treatment, and the doctor’s interpretation of one of the MRI scans. His opinion was not based on “symptoms only”, and clearly was entitled to weight. The other factor relied on by the Arbitrator, the Associate Professor’s failure to offer an “explanation” (see [71] above) was based on a false premise. It assumed, incorrectly, that in the doctor’s opinion the MRI scan did not support the presence of nerve compression, that accordingly a diagnosis of nerve compression would have to be dependent on clinical signs only, and that the doctor should have explained this. On a proper reading of the report of Associate Professor Sheridan, his opinion was dependent on not only clinical signs and symptoms, but also his interpretation of the MRI scan that he was shown.
The way in which the Arbitrator dealt with the evidence of Associate Professor Sheridan involved appealable error, of the sort identified in Raulston, applying Whiteley Muir & Zwanenberg (see [24] above). The Arbitrator overlooked evidence, being the doctor’s interpretation of the MRI scan, which he must have viewed when he examined the appellant. Additionally, the Arbitrator failed to give appropriate weight to the doctor’s opinion due to a perceived failure to offer an “explanation”, which was not in the circumstances required.
Ground No. 1 is upheld. It is unnecessary to deal with the balance of the grounds.

DISPOSITION OF THE APPEAL

The appropriate course is that the matter be remitted to be re-determined by another Arbitrator. Any applications to deal with late documents can be dealt with in the normal way, on the remitter.

DECISION

The Arbitrator’s decision dated 12 February 2019 is revoked.
The matter is remitted pursuant to s 352(7) of the 1998 Act for re-determination by a different Arbitrator.

Michael Snell

DEPUTY PRESIDENT

26 July 2019