Sydney Catholic Schools Limited v Bridgefoot - [2021] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17
APPELLANT:	Sydney Catholic Schools Limited
RESPONDENT:	Gelsomina Bridgefoot
INSURER:	Catholic Church Insurances Limited
FILE NUMBER:	A1-5317/20
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	12 November 2020
DATE OF APPEAL DECISION:	8 June 2021
CATCHWORDS:	WORKERS COMPENSATION – Section 294 of the Workplace Injury Management and Workers Compensation Act 1998 – adequacy of reasons – ex tempore decisions – addendum to oral reasons added at the end of their delivery
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
Astridge and Murray Solicitors
Respondent:
Ms L Goodman, counsel
Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 12 November 2020 is revoked.
2. The matter is remitted to another member to be dealt with in accordance with these reasons.

INTRODUCTION AND BACKGROUND

The respondent worker, Ms Gelsomina Bridgefoot has been a school teacher in the Catholic Education system for approximately 39 years.[1] She was employed as a teacher at Villa Maria Catholic Primary School in Hunters Hill.
[1] Respondent’s statement, 31 July 2019, Application to Resolve a Dispute (ARD), p 1.
The respondent alleged she sustained injury to her right knee in the course of her employment on 30 January 2008, when bending down to the floor teaching year 1 students (the first incident).
On 30 November 2018, the respondent alleges that whilst she was on a bus accompanying students leaving the Ryde Aquatic Centre, the bus driver pulled out from the kerb, struck a brick wall before reversing at speed and then striking a road sign. She was taken by ambulance to hospital, with alleged injury to her right shoulder, neck, back and body, fractured ribs, and left shoulder[2] (the second incident).
[2] Transcript of oral reasons of 11 November 2020 (reasons), 1.30.
On 6 December 2019, whilst travelling on a bus to Ryde Aquatic Centre with students, the respondent alleges that the drive braked, and her feet slid forward, causing her to strike her right knee on the seat in front of her (the third incident).
Ultimately, on 1 June 2020, the respondent underwent a total right knee replacement.[3] She claimed the cost of the surgery, asserting that it was reasonably necessary as a result of the injury sustained in the third incident.
[3] Respondent’s statement 31 July 2020, ARD, p 5.
The dispute before the Arbitrator essentially centred around the acceptance and rejection of the medicolegal opinions, principally of Drs Broe (the treating surgeon) and Wallace, qualified by the insurer, (whose evidence is considered in detail below). Dr Broe supported the respondent’s position that the surgery was reasonably necessary. After having initially agreed, Dr Wallace ultimately changed his opinion and performed a ‘backflip’ in his view. Dr Wallace concluded that there was no right knee injury before 6 December 2019, so surgery was not reasonably necessary as a result of the incident of 6 December 2019 alone.
Ultimately, the Arbitrator found that the surgery was reasonably necessary and ordered the appellant pay for the costs of the surgery. This appeal is from that determination.

TRANSITIONAL MATTERS

After the current appeal was lodged, the Workers Compensation Commission was abolished.[4] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[5] 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. In view of his appointment at the time of his decision, for convenience, I will refer to the Member in his capacity as an Arbitrator.
[4] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[5] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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 Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE EVIDENCE

The evidence in this matter is not greatly in dispute. The dispute that was contested was in the fairly narrow compass of whether or not the surgery that was undertaken was as a result of the injury sustained on 6 December 2019. Injury simpliciter on that date is not in dispute, nor is there any contest that the surgery was appropriate and necessary to treat the knee condition. Consequently, whilst the evidence is referred to in various paragraphs of this decision (below) it is not necessary, in order to decide this appeal, to recount the evidence at length or in detail.

THE ARBITRATOR’S REASONS

At the end of the arbitration hearing on 11 November 2020, the Arbitrator gave ex tempore reasons for his decision. At the outset of the reasons, the Arbitrator noted the first injury occurred on 30 January 2008. He noted the second injury was said to have occurred on 30 November 2018, when the respondent was conveyed to hospital by ambulance from the school with alleged injuries to her right shoulder, neck, back and body, and fractured ribs and left shoulder.[6] The Arbitrator then stated the third injury, relied upon in these proceedings, occurred on 6 December 2019.
[6] Reasons, 1.24–33.
The Arbitrator noted it was not in contention that on that date, the respondent was a passenger on a bus and the driver braked and the respondent’s knee slid forward causing her to strike her right knee on the seat in front of her. The Arbitrator acknowledged the claim before him only concerned the cost of the right knee operation performed under the hands of Dr Broe. He set out the only issue before him, being “whether the need for the … right knee replacement surgery result[ed] from her injury of 6 December 2019 in the sense that it [was] causally related and in a further sense as to whether or not the surgery was reasonably necessary.”[7]
[7] Reasons, 2.35–3.4.
The Arbitrator noted that both parties’ submissions had been recorded and he would not repeat them at length because the parties will have available to them a transcript of what was said.
The Arbitrator referred to the s 78 notice dated 6 April 2020 which denied the need for the surgery. He acknowledged that the respondent herself related the need for the surgery to all three incidents. The Arbitrator paused to note that the respondent had a fall in 2016, but it was of little moment in terms of her pathology.[8] He stated there was some dispute as to whether or not the respondent injured her right knee on 30 November 2018. The Arbitrator said this was because although the respondent believed she suffered that injury, her claim form, and the report of Dr Edwards in October 2019, did not mention any right knee injury in November 2018. The Arbitrator said: “Perhaps that injury was a very minor injury, but I will not venture into speculation in that regard”.[9] In any event, the Arbitrator noted that the respondent returned to work in January 2019 and refers to her statement where she refers to continuing to experience pain in her right knee.
[8] Reasons, 4.5.
[9] Reasons, 4.15.
The Arbitrator turned to consider Dr Broe’s reports, the first of which was dated 18 March 2020. The Arbitrator set out the history recorded. The Arbitrator noted that in the middle of the period between January 2019 to December 2019, the respondent consulted Dr Edwards. The Arbitrator found that Dr Edwards did not note any evidence of injury to the right knee on 30 November 2018.[10]
[10] Reasons, 5.4–16.
With respect to Dr Broe’s report dated 30 October 2020, the Arbitrator recorded the doctor’s reference to all three incidents in 2008, 2018 and 2019, and that the respondent commenced attending physiotherapy twice per week after the December 2019 incident. Reference is made to the note in Dr Broe’s report that the respondent was provided with pain relief, and that, by eight weeks post-surgery, she was no longer in need of opioid pain medication.[11] The Arbitrator also noted Dr Broe’s opinion that following the December 2019 incident, the respondent’s condition deteriorated.[12]
[11] Reasons, 5.24–32.
[12] Reasons, 6.3–5.
The Arbitrator then discussed the evidence of Dr Wallace, qualified by the insurer, who saw the respondent soon after the 6 December 2019 incident. Of note, the Arbitrator stated the following:
“[Dr Wallace] reported on 20 December 2019 with a diagnosis that the applicant had sustained, amongst other things, soft tissue injury to the right knee and an aggravation of pre-existing osteoarthritis as a result of the incident of 6 December 2019. He expressed the opinion in relation to causation that the applicant’s findings were consistent with her presentation and that her right knee condition was due to her bus accident of 6 December 2019.
Dr Wallace’s subsequent report is dated 13 February 2020 in which he deals with a number of matters, many of which are not at present relevant having regard to the confined pleadings. But he does confirm that the applicant does require an operation. On 21 May 2020 Dr Wallace then reported that he was now referring to an incident of 2018. He was also aware at that time that the initial incident was in 2008 and that notwithstanding confirmed that surgery was reasonably necessary.
We then have Dr Wallace’s report of 17 June 2020 which, in summary, is a total ‘backflip’. Dr Wallace was given the claim form and Dr Edwards’ opinion and noted that there was no objective evidence of any injury to the applicant’s right knee on 30 November 2018. There was no history of right knee complaints on consultation with the applicant’s general practitioner. That excluded the evidence of any injury to the right knee on 30 November 2018. Dr Wallace then concludes that there was no right knee injury before 6 December 2019 so operative surgery was not reasonably necessary as a result of 6 December 2019 alone.”[13]
[13] Reasons, 6.10–7.7.
Under the heading “Discussion”, the Arbitrator referred to the above evidence of Dr Wallace, finding it ignored a number of matters, including that there was a lack of any significant complaints at consultation with the general practitioner between 30 November 2018 and 6 December 2019. The Arbitrator also placed some reliance upon the report of Dr Edwards. The Arbitrator found that as at 19 May 2019, the respondent was not complaining of any problems with the right knee, but after 6 December 2019, she was not only complaining of right knee symptoms, but in Dr Broe’s opinion, her condition with respect to the right knee had significantly deteriorated.[14] Relying upon Kooragang Cement Pty Ltd v Bates,[15] the Arbitrator found that Dr Wallace’s ‘backflip’ “[did] not make a lot of sense when one thinks about common sense causation” as required by Kooragang.[16]
[14] Reasons, 7.11–22.
[15] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[16] Reasons, 7.23–25.
The Arbitrator “accept[ed] that the need for the applicant on causation is to show that the injury complained of caused and/or materially contributed to the need for surgery.”[17] Having borne the earlier chronology in mind, particularly the absence of complaint to Dr Edwards in May 2019 and the clear deterioration of the respondent’s condition after 6 December 2019, the Arbitrator was “comfortably satisfied” that Ms Bridgefoot had demonstrated on the balance of probabilities the existence of a pathological change in her right knee as a result of injury sustained by her on 6 December 2019.[18]
[17] Reasons, 7.27–29.
[18] Reasons, 7.27–8.6.
The Arbitrator then considered whether the surgery was reasonably necessary. Of note, the Arbitrator said:
“Medical reports, in particular, Dr Broe’s opinion and reported initially at least by Dr Wallace confirms that after 6 December 2019 things got much worse for the applicant to the extent that, as I have already said, the need for physiotherapy increased and the need for opioids increased and in those circumstances I am of the view that the applicant should have had that surgery. I express that position aware of the decision of Burke J in Rose[19] being should the applicant have (had) the surgery?. I have considered the alternatives which have been pursued by the applicant, the general view in the medical profession and the other matters outlined in Diab[20] that on the balance of probabilities this Commission takes the view that the surgery was reasonably necessary. The applicant trialled other measures to no avail and it is pleasing to see that the applicant has experienced a successful result from the surgery, although I would hasten to add that this latter matter is not significant to my decision in the matter.”[21]
[19] Rose v Health Commission(NSW) (1986) 2 NSWCCR 32.
[20] Diab v NRMA Limited [2014] NSWWCCPD 72.
[21] Reasons, 8.14–32.
The Arbitrator proceeded to make an award in favour of Ms Bridgefoot and then asked if there was anything he had overlooked.[22] Ms Goodman, counsel for Ms Bridgefoot, replied she thought the Arbitrator had covered it all. The Arbitrator then offered to refer to Dr McGee-Collett. The Arbitrator noted that when Dr McGee-Collett saw the respondent on 29 August 2019, the doctor noted she was still complaining of knee symptoms related to the November 2018 injury, which the Arbitrator said appeared to be at odds with the opinion of Dr Edwards.[23]
[22] Reasons, 9.5.
[23] Reasons, 9.17–22.
The Arbitrator then informed the parties that he would add an addendum to the reasons,[24] referring to Dr McGee-Collett’s report where he recorded a history of pain in the knee related to the November 2018 injury. The Arbitrator further noted the respondent said she injured her knee on 30 November 2018. The Arbitrator concluded that what was important, in his view, was the allegation of right knee injury in its proper context and what impressed him was the fact the respondent had returned to work in January 2019 and appeared to have been able to manage her duties without complaint until the incident on 6 December 2019.[25] The Arbitrator was satisfied that, to the extent Ms Bridgefoot did suffer any “injury” in 2018, it was not of sufficient moment to either require her to be off work for any lengthy period of time, nor to seek any ongoing medical treatment. The Arbitrator said that, accordingly, the history given to Dr McGee-Collett must be considered in that context.[26]
[24] Reasons, 9.26.
[25] Reasons, 9.27–10.5.
[26] Reasons, 10.6–12.
Following this, the Arbitrator asked whether there was anything else that needed to be “tidied up”,[27] to which counsel for the appellant, Mr Saul, replied: “I don’t have anything further to say”.[28] After making some concluding remarks to the parties, the Arbitrator ended the reasons saying “If there’s nothing else then the parties are excused.”[29]
[27] Reasons, 10.17–19.
[28] Reasons, 10.25.
[29] Reasons, 10.35–11.1.
The Certificate of Determination issued on 12 November 2020 records:
“1. The knee replacement surgery to the applicant’s right knee performed by Dr D Broe on 1 June 2020 was reasonably necessary medical treatment resulting from injury to the applicant on 6 December 2019 (treatment).
2. The respondent is to pay to the applicant the costs of and incidental to the treatment.”

GROUNDS OF APPEAL

The appellant asserts the Arbitrator erred in fact and law in:
(a) failing to properly engage with the submissions made by the appellant, and the evidence before him, and failing to provide proper reasons (Ground 1), and
(b) failing to properly consider the report of Dr McGee-Collett, and in failing to find that the worker suffered significant right knee symptoms prior to 6 December 2019 (Ground 2).

LEGISLATION

Section 60(1) of the 1987 Act provides:
“(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).”

SUBMISSIONS

It is convenient at the outset to set out the areas which the appellant does not dispute. The appellant maintains that it does not dispute that the respondent sustained injury to her right knee on 6 December 2019 within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). It also does not dispute that the right knee replacement “was an appropriate and necessary procedure to treat the effects of the right knee condition (generall [sic]).”[30]
[30] Appellant’s submissions, [3]–[4].
The appellant clarifies that it appeals the Arbitrator’s determination that the right knee replacement “was reasonably necessary as a result of injury sustained on 6 December 2019”[31] (emphasis in original). It seeks the decision should be revoked and remitted to a different member for re-determination.[32]
[31] Appellant’s submissions, [5].
[32] Appellant’s submissions in reply.
The respondent agrees that the dispute concerned whether the knee replacement surgery was reasonably necessary as a result of injury on 6 December 2019.

Ground 1

Appellant’s submissions

The appellant notes that the Arbitrator commenced his reasons by reviewing the evidence generally. Reference is made to the Arbitrator’s note that whilst the respondent asserted that she injured her right knee “in an earlier work-related injury on 30 November 2018 there was evidence competed [sic] at and shortly after that event which did not mention any right knee injury”, and it is noted the Arbitrator “did concede at that ‘perhaps it was a very minor injury’.”[33]
[33] Appellant’s submissions, [6].
The appellant also notes the Arbitrator reviewed the reports of Dr Broe and Dr Wallace. It concedes the Arbitrator correctly identified the issue to be determined, being that Ms Bridgefoot needed to demonstrate the pleaded injury “caused or materially contributed to the need for surgery”, noting the reference to ‘material contribution’ was a reference to Murphy v Allity Management Services Pty Ltd,[34] on which the parties addressed.
[34] [2015] NSWWCCPD 49 (Murphy), [58].
It is said that following this, the Arbitrator noted only that there was an absence of complaint to Dr Edwards in May 2019 about any right knee issue and there was a clear deterioration in the knee after 6 December 2019, which the Arbitrator stated led him to be ‘comfortably satisfied’ the respondent sustained a frank personal injury on 6 December 2019.

The appellant submits that the Arbitrator’s reasoning process was flawed, and he conflated the test for injury under s 4 of the 1987 Act with the test for whether surgery was reasonably necessary to treat the effects of that injury under s 60 of the 1987 Act. It argues that whilst the Arbitrator initially correctly noted the relevant test on the issue before him was whether the work injury had made a material contribution to the need for surgery, he then proceeded to apply that test to whether the worker sustained ‘pathological change’, under s 4 of the 1987 Act.[35]
[35] Appellant’s submissions, [10].
The appellant refers to the Arbitrator’s note under the heading “Reasonably Necessary”,[36] that Drs Broe and Wallace supported that after 6 December 2019 things got much worse for the respondent, including the need for physiotherapy and opioid pain relief. The Arbitrator then stated that he was of the view that Ms Bridgefoot should have had that surgery.[37] The appellant submits, however, that finding and the reasons that follow were directed to the need for surgery generally, not to the critical question of whether the need for that procedure had received material contribution from the work injury.[38]
[36] Reasons, 8.10–12.
[37] Reasons, 8.14–20.
[38] Appellant’s submissions, [12].
The appellant submits that the Arbitrator failed to engage with critical submissions made by it. The appellant says it directed lengthy submissions to the fact that Dr Broe, on whose opinion the respondent principally relied, had based his opinion on the need for surgery, on a history of the worker suffering injuries in 2008, on 30 November 2018, and 6 December 2019. It was submitted that Dr Broe had not stated that the injury on 6 December 2019 alone had made a material contribution to the need for the claimed surgery and that the evidence therefore did not discharge Ms Bridgefoot’s onus. The appellant submits that the Arbitrator had not addressed those submissions. It asserts this constitutes an error of law. The appellant argues that the Arbitrator did not address the appellant’s submissions at all, aside from noting that they were “recorded” in the reasons at 3.8–11.
The appellant submits that the reasons given by a decision maker should enable the parties to identify the basis of the Arbitrator’s decision and the extent to which their arguments had been understood and accepted, relying on Soulemezis v Dudley (Holdings) Pty Ltd.[39] It argues that it was not sufficient to merely conclude that following the injury on 6 December 2019, the respondent’s condition deteriorated and that surgery was contemplated thereafter. The appellant says that it had asserted that Dr Broe did not provide any direct opinion that the injury on 6 December 2019 had made a material contribution to the need for surgery. The appellant complains that the Arbitrator had not addressed that submission. Further, it adds, it is not apparent from the reasons that the Arbitrator made the findings required by Murphy, regarding material contribution to the need for surgery. It acknowledges the test was stated, but says that it was not applied.[40]
[39] (1987) 10 NSWLR 247 (Soulemezis).
[40] Appellant’s submissions, [16].
The appellant argues that if the Arbitrator did apply the test, he provided insufficient reasons. The appellant relies upon Beale v Government Insurance Office of NSW,[41] submitting there was an obligation on the Arbitrator to state sufficient reasons for his decision, and failure to do so is an error of law.[42]
[41] (1997) 48 NSWLR 430.
[42] Appellant’s submissions, [17].
The appellant postulates that if the Arbitrator was of the view that Dr Broe’s opinion supported that there was a material contribution from the injury on 6 December 2019 (noting that a dispute on that issue was the subject of submissions made by it), the appellant submits the Arbitrator was obliged to make that finding and state reasons for it. This, the appellant contends, did not occur.
The appellant further adds that the Arbitrator did not undertake any consideration of the basis on which Dr Broe reached his opinion. The appellant maintains that the doctor’s opinion was premised on three separate injuries in 2008, 30 November 2018 and 6 December 2019, and that these injuries all contributed to the need for the knee replacement. The appellant asserts that the Arbitrator was required to address the submission that Dr Broe had proceeded on forming his opinion on an incorrect basis and that his report did not establish that the knee replacement was reasonably necessary due to the injury on 6 December 2019 alone.[43]
[43] Appellant’s submissions, [19].

Respondent’s submissions

The respondent says that after she first injured her knee on 30 January 2008 and underwent surgery, she recovered well and returned to work.[44] Reference is made to the incident on 30 November 2018 where it is noted the respondent was taken by ambulance from the school with injuries to her right shoulder, neck, back and body, fractured ribs and left shoulder. The respondent recounts the Arbitrator noted there was some dispute as to whether she suffered injury to her right knee in this incident.
[44] Respondent’s submissions, [5].
The respondent says that whilst she believed she injured her knee in the incident on 30 November 2018, the injury notification form and report of Dr Edwards dated 16 October 2019 do not mention any injury to the right knee. The respondent notes the Arbitrator’s observation that Dr Edwards’ report following a consultation on 29 May 2019 did not note any evidence of injury to the right knee on 30 November 2018. Reference is made to the Arbitrator’s comment that injury (on 30 November 2018) was very minor and the respondent returned to work.
The respondent recalls that following the third injury on 6 December 2019, Dr Broe noted the respondent’s condition had deteriorated and Dr Wallace accepted that the right knee condition was due to the bus accident on 6 December 2019. The respondent refers to the Arbitrator’s observation that Dr Broe noted that the respondent had undergone physiotherapy and that her need for pain relief increased and included taking Endone. She also refers to the Arbitrator’s observation that Dr Wallace, in his report dated 20 December 2019 diagnosed, amongst other things, soft tissue injury to the right knee and an aggravation of pre-existing osteoarthritis as a result of the incident of 6 December 2019.
With regard to the appellant’s assertion that the Arbitrator conflated the test of injury pursuant to s 4 of the 1987 Act with the test for whether surgery was reasonably necessary to treat the effects of injury under s 60 of the 1987 Act, the respondent submits this is not so. The respondent argues the Arbitrator correctly identified that there was an injury to her right knee on 6 December 2019 which, according to Drs Broe and Wallace, resulted in a deterioration of her condition, and the Arbitrator considered whether the right knee replacement was reasonably necessary as a result of the injury on 6 December 2019.[45]
[45] Respondent’s submissions, [12].
The respondent says that in considering whether it was reasonably necessary as a result of the 6 December 2019 injury, the Arbitrator noted that Dr Broe based his opinion for the need for surgery on her suffering injuries in the three incidents. The respondent submits that it is not necessary for there to be medical evidence which specifically states that injury on 6 December 2019 materially contributed to the need for the surgery. The appellant maintains this was a conclusion for the Arbitrator to reach if he is satisfied on the basis of the medical evidence before him. The respondent says the Arbitrator was satisfied of such.[46]
[46] Respondent’s submissions, [14].
The respondent further submits that a condition can have multiple causes, citing Murphy. She states the injury of 6 December 2019 does not have to be the only, or even a substantial, cause of the surgery before the cost of it can be recovered pursuant to s 60. The respondent argues that she only has to establish, applying the common sense test of causation as espoused in Kooragang, that the treatment is reasonably necessary as a result of the injury on 6 December 2019. That is, she has to establish that the injury of 6 December 2019 materially contributed to the need for surgery.[47]
[47] Respondent’s submissions, [15].
The respondent points out that the Arbitrator referred to the report of Dr Wallace dated 20 December 2019, in which the doctor diagnosed her, amongst other things, as having sustained soft tissue injury and an aggravation of pre-existing osteoarthritis as a result of the incident of 6 December 2019. The respondent also relies on Dr Wallace’s opinion that the findings were consistent with her presentation and her right knee condition was due to the incident on 6 December 2019.[48]
[48] Respondent’s submissions, [16].
The respondent reiterates that the injury to the right knee on this date was not disputed. She says it was therefore only necessary for the Arbitrator to find that the knee replacement surgery was reasonably necessary as a result of the injury on 6 December 2019.[49] The respondent refers to the Arbitrator’s note of Dr Wallace’s report dated 13 February 2020, in which the doctor confirmed the need for surgery, and also noted that although the doctor, in his report of 21 May 2020, reported that he was now referring to an incident in 2018, confirmed the surgery was necessary.[50]
[49] Respondent’s submissions, [17].
[50] Respondent’s submissions, [18].
The respondent refers to the Arbitrator’s finding that in the report of 17 June 2020, Dr Wallace “did a total ‘backflip’”. The respondent observes the doctor had been provided with the claim form and Dr Edwards’ report and noted that there was no objective evidence of any injury to the respondent’s right knee on 30 November 2018. Dr Wallace, it is said, “then concluded that as there was no right knee injury before 6 December 2019 operative surgery was not reasonably necessary as a result of the injury on 6 December 2019 alone.”[51]
[51] Respondent’s submissions, [19].
Reference is also made to the Arbitrator’s note that Dr Wallace’s opinion dated 17 June 2020 ignored the lack of any significant complaints to the general practitioner between 30 November 2018 and 6 December 2019. The respondent contends that the Arbitrator relied upon the opinion of Dr Edwards dated 19 May 2019 that she was not complaining of any problems with her right knee, whereas after 6 December 2019, she was not only complaining of problems with her right knee, but according to Dr Broe, her condition had significantly deteriorated.[52]
[52] Citing the reasons, 7.10–20.
The respondent further records that on the basis of the absence of complaints to Dr Edwards, and the clear deterioration of her condition after 6 December 2019, the Arbitrator was satisfied on the balance of probabilities that she had demonstrated a pathological change in her right knee as a result of the incident on 6 December 2019.[53]
[53] Respondent’s submissions, [21].
The respondent submits it is clear the Arbitrator accepted the opinion of Dr Broe over that of Dr Wallace, particularly as Dr Wallace kept changing his mind and ultimately thought the surgery was not reasonably necessary without giving reasons for the “backflip”.[54]
[54] Respondent’s submissions, [22].
The respondent argues that although Dr Broe based his opinion on causation on all three injuries, as long as the injury of 6 December 2019 materially contributed to the need for surgery, the test is satisfied. The respondent says this is clearly what the Arbitrator found.[55]
[55] Respondent’s submissions, [23].
The respondent maintains there was no probative medical opinion advanced that was relied upon by the appellant which opined that the incident of 6 December 2019 was not a material contributing factor. She submits there was evidence to the contrary, referring to the lack of complaints prior to 6 December 2019, the fact she returned to work in January 2019 and continued working until the further injury on 6 December 2019, and the deterioration in her condition following that injury.[56]
[56] Respondent’s submissions, [24].
The respondent also says the Arbitrator had before him the opinion of Dr McGee-Collett dated 29 August 2019. She submits:
“Although Dr. McGee-Collett noted that the [r]espondent [w]orker was still complaining of right knee problems, related to the injury of November 2018, which appeared to the Arbitrator to be at odds with the opinion of Dr Edwards, this was of course consistent with what the [r]espondent [w]orker herself said in her statement. The Arbitrator resolved this conflict by stating that what impressed him was the fact that she had returned to work in January 2019 and appears to have managed her duties without complaint until the injury of January 2019 and that the history that [sic] Dr McGee-Collett ought to be seen in this light.”[57]
[57] Respondent’s submissions, [26].
The respondent concludes by submitting that the Arbitrator has made no error in the approach he took, and ultimately, in the finding he made in respect of the injury of 6 December 2019 being a material contributing factor to the need for surgery.[58]
[58] Respondent’s submissions, [27].

Appellant in reply

The appellant asserts that the Arbitrator’s rejection of the opinion of Dr Wallace is not challenged in this appeal.
The appellant submits Ms Bridgefoot bore the onus to establish that the surgery was reasonably necessary as a result of the pleaded injury. It maintains that the thrust of its argument is that the Arbitrator did not properly engage with the submissions it made at length addressing the deficiencies with the opinion of Dr Broe. It says the doctor merely concluded that the respondent required a total right knee replacement, on a background history of three separate work injuries, only one of which was pleaded and relied upon.[59]
[59] Appellant’s submissions in reply, [3].
The appellant clarifies that it has not sought to challenge the propositions raised by the respondent that a condition can have multiple causes[60] or that the work injury need not be the only or a substantial cause of the need for treatment in order to be reasonably necessary.
[60] Citing Murphy.
The appellant submits the Arbitrator “failed to squarely deal with the submissions made by the appellant as to the reports and opinion of Dr Broe, and whether those reports were sufficient to establish that the pleaded injury on 6 December 2019 had made a material contribution to the need for surgery”.[61]

Ground 2

[61] Appellant’s submissions in reply, [5].

Appellant’s submissions

The appellant contends the Arbitrator “placed some weight on the evidence which he concluded did not establish the presence of any right knee injury or symptoms flowing from the incident on 30 November 2018”.[62] The appellant says this included reports from Dr Edwards in 2019. It argues that the Arbitrator relied on those factual findings to conclude that the knee symptoms post 6 December 2019 were caused by that injury.
[62] Appellant’s submissions, [20].
The appellant asserts that after concluding the matter and entering his award for Ms Bridgefoot,[63] the Arbitrator only then addressed and considered the report of Dr McGee-Collett dated 29 August 2019. The appellant notes it was completed only 3 months prior to the subject injury. It says, that as the Arbitrator noted, the report recorded the respondent was complaining of right knee pain related to the injury of 30 November 2018. It adds that the report also recorded that the pain was persisting and the doctor suggested referral to an orthopaedic surgeon for that right knee condition. The appellant notes that the Arbitrator stated that, to the extent the respondent suffered an injury on 30 November 2018, it was not sufficient to require time off work or seek medical treatment.[64] The appellant submits this was an erroneous approach to fact finding and to the determination of the matter and is an error of law.
[63] Citing the reasons, 9.1–5.
[64] Appellant’s submissions, [22].
The appellant also argues that the reasons do not disclose that the Arbitrator considered Dr McGee-Collett’s report when making his findings. It says this is confirmed by the statement made by the Arbitrator to the respondent’s counsel after his decision was made, when he said:[65] “if you want me to I can refer to Dr McGee Collett”. The appellant asserts that “it was not a matter of ‘referring’ to that evidence”.[66] It contends that the report contained a history germane to the dispute, in that it established knee pain shortly before the pleaded injury. It says the report contradicted the Arbitrator’s earlier conclusions regarding the absence of knee pain before the work injury.
[65] Reasons, 9, 10–11.
[66] Appellant’s submissions, [27].
The appellant says Dr McGee-Collett’s report was consistent with the respondent’s own allegation of right knee pain after the injury on 30 November 2018 and with the reports of Dr Broe. It points out that the Arbitrator’s earlier reasons suggested that he did not accept the presence of right knee symptoms prior to the 2019 injury. The appellant concludes that that finding was contrary to the balance of the evidence and not properly considered.[67]
[67] Appellant’s submissions, [28].
The appellant maintains that the Arbitrator was required to consider that evidence, which it says is significant, when making his factual findings on which the award was based. The appellant says this could not occur after his findings and determination were made. The appellant reiterates that the Arbitrator’s approach to that evidence and the fact-finding process generally, constituted an error of law.[68]
[68] Appellant’s submissions, [29].

Respondent’s submissions

The respondent says it is clear from a reading of Dr McGee-Collett’s report that she was referred to him for her spinal and other problems rather than her right knee, as a result of the 2018 injury. She submits the relevance of this report is that he recorded a complaint of right knee pain before the 2019 injury and he thought that “she probably has a right knee arthropathy”. The respondent also observes the doctor noted that she should see an orthopaedic surgeon for her pain. The respondent says that she was already under the care of Dr Broe, an orthopaedic surgeon, at this time. The respondent contends that Dr McGee-Collett’s report confirmed what she had said in her statement, that is, that she continued to have pain in her right knee after the injury on 30 November 2018.
The respondent states that the Arbitrator had not turned off the recording device at the time he realised that he had not referred to Dr McGee-Collett’s report dated 29 August 2019. She contends the Arbitrator made it clear that he was then going to deal with and consider Dr McGee-Collett’s opinion by way of an addendum. The respondent submits that counsel for the appellant could have objected at that stage, but did not.[69]
[69] Respondent’s submissions, [31].
She says that in any event, the Arbitrator asked counsel for the appellant whether there was anything else that needed to be tidied up, to which he replied: “I don’t have anything further to say”. The respondent submits the appellant could have objected to the Arbitrator dealing with the matter in this way, however, did not do so.[70]
[70] Respondent’s submissions, [33].
The respondent concludes by submitting that it is necessary for the Arbitrator’s reasons to be read as a whole, and the reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error, relying upon Rail Corporation NSW v Aravanopules.[71] She argues that a fair reading of the Arbitrator’s reasons shows no error in the way the Arbitrator approached the evidence.[72]
[71] [2019] NSWWCCPD 65.
[72] Respondent’s submissions, [34]–[35].

Appellant in reply

The appellant does not dispute that it is necessary to read the reasons as a whole.[73] It says that the challenge to the decision lies in whether there was an error of law in failing to deal with direct submissions made by the appellant, and to fail to deal with a key piece of evidence before making the finding that the surgery was reasonably necessary.
[73] Appellant’s submissions in reply, [6].
The appellant submits it made direct submissions addressing the report of Dr McGee-Collett. It says it submitted the report was “important”,[74] as it established that the respondent was still complaining of right knee pain as of 29 August 2019.[75] The appellant refers to the reasons at 7.17, where the Arbitrator made a specific factual finding that as at 19 May 2019, the respondent was not complaining of any problems with her right knee, but that after 6 December 2019, she was complaining of such issues. It is noted that the Arbitrator determined the respondent was suffering no, or “very minor” right knee symptoms prior to December 2019.
[74] Transcript of arbitration proceedings 11 November 2020 (T), 32.12.
[75] Appellant’s submissions in reply, [8].
The appellant submits Dr McGee-Collett’s report was not consistent with the conclusion, and the Arbitrator did not consider that report when making those findings of fact.[76] It argues the only available inference is that the Arbitrator did not consider the report when making his earlier factual findings. Only considering the report after the award being entered, it says, was a failure to deal with a direct submission of the parties, and failure to consider an important piece of evidence. The appellant submits this constitutes an error of law.
[76] Appellant’s submissions in reply, [9]–[10].
Referring to the respondent’s submissions at [31], the appellant asserts the error under this ground is that the Arbitrator only considered the report of Dr McGee-Collett after the award was made. It argues there is no requirement on the appellant to raise that appealable error with the Arbitrator directly at that time.[77]
[77] Appellant’s submissions in reply, [13].
With respect to the respondent’s submissions at [69] above, in relation to the Arbitrator’s question concerning whether anything else needed tidying up, the appellant submits the exchange occurred after the Arbitrator’s decision had already been delivered. It states that if the decision and approach by the Arbitrator contained appealable error, the appropriate course is to file an appeal. It contends that the right to appeal is not lost because it did not challenge the Arbitrator directly on the errors now alleged.[78]

DISCUSSION

[78] Appellant’s submission in reply, [14]–[15].

As to Ground One

This ground of appeal alleges that the Arbitrator made three errors. Firstly it is alleged that the Arbitrator failed to engage with submissions that were made by the appellant on the critical question of whether on the basis of the injury pleaded, this caused or materially contributed to the need for surgery. Secondly it is alleged that the Arbitrator failed to deal with the evidence that was before him on this question, and finally it is alleged that the Arbitrator failed to provide proper reasons.
The obligation to give reasons is defined in the statute. Section 294(2) of the 1998 Act mandates that a brief statement of the reasons is to be attached to the Commission’s certificate. Various cases have held that this obligation does not require lengthy or elaborate reasons.[79] However whilst this has long been the law, an Arbitrator is required to engage with the issues canvassed by the parties.[80] The question therefore arises whether or not the Arbitrator has met this standard in his decision. The fact that the decision was made ex tempore does not in any way detract from or modify this obligation.
[79] Soulemezis per McHugh JA, 280.
[80] University of New South Wales v Brooks [2014] NSWWCCPD 68, per Roche DP.
In the hearing before the Arbitrator, counsel for the now appellant submitted as follows. It was recognised and accepted that the need for the surgery could have multiple causes.[81] Counsel further submitted, on the basis of an examination of the medical evidence, and in particular the opinions of Drs Broe and Wallace, that Ms Bridgefoot did not possess expert medical evidence which established that the 2019 injury materially contributed to the requirement for the surgery. This submission was summarised at T 31.9–16. Ultimately, it was submitted as follows:
“My friend is asking you to apply Murphy v Allity and I understand, yes, you should as well but you can only apply it, that is the material contribution aspect of Murphy v Allity, with speculation and that’s not what you should be doing, you need to do it based on evidence and there is no sufficient evidence, in my respectful submission, to allow you to isolate from the medical reports one injury, be it the last, doesn’t matter for the total knee replacement purposes.”[82]
[81] T 27.25–27.
[82] T 33.10–19.
The argument clearly advanced on behalf of the employer before the Arbitrator involved a review of the medical evidence and a submission that the requirement of material contribution had not been established on the basis of that evidence, which is of course the case which had been pursued by the appellant. The case having been put in this manner, it was incumbent upon the Arbitrator to deal with this argument.
In terms of how the Arbitrator dealt with this submission, it cannot, with respect, be said that it had been grappled or dealt with in terms. Rather, the approach was to record salient points from both Dr Broe’s and Dr Wallace’s reports and to examine the history recorded in the report of Dr Edwards of 19 May 2019. Reliance was placed by the Arbitrator upon the chronology of events which had been set out before making the now contested finding which reads as follows:
“I am comfortably satisfied that the applicant, on the balance of probabilities, has demonstrated the existence of a pathological change in her right knee as a result of the frank personal injury suffered by her on 6 December 2019.”[83]
[83] Reasons, 8.2–6.
With respect, this did not engage with the argument advanced by the appellant which I have set out in summary form above. This is not a question which engages with the commonsense evaluation of the casual chain as set out in Kooragang; the question for consideration here is whether the argument that was fairly and squarely advanced by the appellant was dealt with.
In Wang v State of New South Wales,[84] the following principles were set out:
“It was submitted that the judge failed to respond to substantial, clearly articulated arguments relying on established facts on behalf of Mr Wang …
The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.”[85] (emphasis added).
[84] [2019] NSWCA 263 (Wang).
[85] Wang, [62]–[63] per McCallum JA, Macfarlan and Meagher JJA agreeing.
Whilst the Arbitrator’s result for all intents and purposes has dismissed the appellant’s argument that was conducted below, a close consideration of the Arbitrator’s reasons does not reveal how the argument that was submitted to him was rejected. Whilst I accept that in weighing the evidence, the Arbitrator was correct to have regard to the approach set out by Kirby P in Kooragang, that is an entirely separate question from dealing with the arguments that were put on behalf of the appellant. I think it is clear that on a fair reading of the decision it is not possible to discern why these submissions were rejected. Clearly the appellant submitted to the Arbitrator difficulties with the medical evidence, which in their submission meant that Ms Bridgefoot could not establish an entitlement. At the very least, this required the Arbitrator to attempt to resolve or grapple with that issue in terms of the doctors’ opinions. It is not possible to discern exactly how the medical evidence was construed to reach the result which I have set out above.
Whilst I accept that the sum in dispute in this matter is important and substantial for the worker, it is a relatively modest sum. It is therefore unfortunate that the failure to deal with the submissions advanced below by the employer will now of necessity require that the matter be remitted for re-determination by another member. The failure to deal with the argument is a constructive failure to exercise jurisdiction in the sense referred to in Dranichnikov, and is thus an error of law. Ground One is therefore established.
As I have stated above, the appellant also alleges that the Arbitrator failed to deal with the evidence that was before him on this question and that there was a failure to provide proper reasons. Given my finding, and the fact that the matter will be remitted, it is not necessary for me to deal with these two aspects of Ground One although it might be said that given the finding I have made in relation to the failure to deal with the appellant’s submissions made below, that aspects of these complaints might also have been established. I make no finding in relation to these matters as it is not necessary to do so.

As to Ground Two

Given my decision with respect to Ground One, it is unnecessary for me to deal with Ground Two at length.
Ground Two asserts that the Arbitrator, having completed delivering his ex tempore reasons, could not then add to those reasons, the award having been made. This is not technically correct in that the decision is not formally entered in the Commission’s records until the Certificate of Determination is issued. There is no suggestion that the Certificate of Determination was issued before the Arbitrator embarked upon his additional remarks.
Decisions of the Commission are final and binding.[86] However, a decision is not vitiated because of any informality or want of form.[87] Additionally, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and proceedings can be conducted with as little formality and technicality as the proper consideration of the matter permits.[88]
[86] Section 350(1) of the 1998 Act.
[87] Section 350(2)(a) of the 1998 Act.
[88] Section 354 of the 1998 Act.
As I have said above, the sum in contest in these proceedings is relatively modest. It is exactly the type of dispute which lends itself readily to an ex tempore decision, which is completely in simpatico with the objectives of the former Workers Compensation Commission set out in s 367 of the 1998 Act. The approach taken by the Arbitrator in terms of the discussion had with counsel at the conclusion of the delivery of the oral reasons is consistent with the statutory provisions under which the former Workers Compensation Commission operated. The approach urged upon me by the appellant in this respect would introduce a level of formality and rigidity in the Commission’s operations which are contrary to the objectives and conduct of the tribunal generally. Whilst it is true that decisions are final, s 350(3) enables the Commission to undertake a reconsideration of any matter that it has previously dealt with and alter or amend that decision. Patently, the Arbitrator in this case was not exercising the s 350(3) power, I merely refer to this provision as being illustrative of the flexibility in approach that has been bestowed on the Commission by the Parliament.
There is no error in this approach and I consequently reject Ground Two.

DECISION

Whilst the decision reached by the Arbitrator was one that might have been available to him on the facts, the argument advanced by the appellant was not in real terms dealt with, and as a consequence an error of law has arisen. The matter must be remitted to be dealt with in accordance with law.
I order as follows:
1. The Certificate of Determination dated 12 November 2020 is revoked.
2. The matter is remitted to another member to be dealt with in accordance with these reasons.

Judge Phillips
PRESIDENT

8 June 2021