Taxis Combined Services (Victoria) Pty Ltd v Schokman - [2014] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18
APPELLANT:	Taxis Combined Services (Victoria) Pty Ltd
RESPONDENT:	Maurice Schokman
INSURER:	GIO General Ltd
FILE NUMBER:	A1-12490/12
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	11 December 2013
DATE OF APPEAL DECISION:	8 April 2014
SUBJECT MATTER OF DECISION:	Hospital and medical expenses (dental treatment) under s 60 of the Workers Compensation Act 1987; whether proposed treatment of peri-implantitis reasonably necessary as a result of an accepted work injury; causation; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons Lawyers
Respondent:	TD Kelly & Co
ORDERS MADE ON APPEAL:	1. Save to amend the name of the appellant employer to read Taxi Combined Services (Victoria) Pty Ltd, the Arbitrator’s determination of 11 December 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

Section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) provides that if, “as a result of an injury received by a worker, it is reasonably necessary” that any medical or related treatment be given to the worker, the worker’s employer is liable to pay the cost of that treatment. This appeal concerns liability for the cost of proposed dental treatment as a result of an accepted facial injury in 1991.

BACKGROUND

The respondent worker, Maurice Schokman, is a taxi driver. On 13 July 1991, he was assaulted in the course of his employment for the appellant employer. As a result of that assault, he suffered extensive facial injuries which (ultimately) resulted in the loss of his four upper central incisors. He was treated with a four-unit fixed bridge. At the time of that treatment, it was noted that Mr Schokman had a pre-existing periodontal disease (periodontitis) that was not related to the assault.
The bridge failed in 1999 due to a failure of the supporting lateral incisor teeth, which had also been damaged in the assault. Treatment in 1999 and 2000 consisted of a new four-unit bridge supported by two implants, fitted by Dr David Roessler, an experienced and highly qualified prosthodontist. Dr Roessler reported on 4 June 1999 that the loss of Mr Schokman’s four front teeth was directly attributable to the assault. He added that Mr Schokman’s periodontal problems were not related to trauma, but were due to inadequate oral hygiene, smoking (Mr Schokman was and is a regular smoker), and genetic susceptibility.
Because of broken screws, the bridge became loose in 2012 and Mr Schokman again saw Dr Roessler. Dr Roessler reported on 25 June 2012 to the appellant’s insurer, GIO General Ltd (GIO), that the abutments and the screws were no longer manufactured. Dr Roessler noted bone loss around the left side implant, which represented “early implantitis”, and which required local therapy treatment around the left side implant that would change the contours of the soft and hard tissues around both the implant and under the bridge. (Implantitis, also referred to in the evidence as peri-implantitis, is an inflammatory process around an implant and includes soft tissue inflammation and progressive loss of supporting bone beyond biological remodelling.)
Dr Roessler recommended the following treatment:
(a)     removal of the bridge, investigation and replacement of broken screws temporarily, if possible;
(b)     referral to Dr Sara Byrne, periodontist, for local therapy around the left side implant, and
(c)     construction of a new bridge.
The treatment in (a) has been provided, and paid for, and does not form part of the appeal. The treatment in (b), periodontal work by Dr Byrne, relates to Mr Schokman’s peri-implantitis. It is disputed that Mr Schokman has peri-implantitis and argued that, even if he has that condition, the treatment is not reasonably necessary as a result of the injury. If the treatment for the peri-implantitis is performed, that will change the contour of the tissues in Mr Schokman’s mouth and will mean that Mr Schokman will then require a new bridge. The claim for the new bridge is therefore disputed because, so it is argued, the periodontal work is not necessary as a result of the injury. There is also an argument that, even if the recommended periodontal work is not performed, a new bridge is required.
In or about June 2012, Mr Schokman made a claim for the cost of the treatment recommended by Dr Roessler.
Dr Roessler wrote to GIO on 11 July 2012 explaining that peri-implantitis is an infection by anaerobic bacteria. The causes of the infection were not well understood and there was no agreement in the literature. It appeared to be a site-specific problem, that is, it can affect one implant but not others, as was the case with Mr Schokman. There were associations with periodontitis, the most common reason why people have implants (though not in Mr Schokman’s case), poor oral hygiene and smoking, though “none of these factors have not [sic] been proven”. It had also been associated with some of the modern implants, again that had not been proven. It is obvious from the context that the quoted statement should read, “none of these factors have been proven”.
On 24 July 2012, GIO issued a s 74 notice agreeing to pay the treatment recommended by Dr Roessler at [5(a)] above. However, it disputed liability for the balance of the treatment on the grounds that:
(a)     there was no “aetiology” in Dr Roessler’s report of 11 July 2012 that pointed to “GIO being liable for perimplantitis [sic] or peridionitis [sic] on a causation basis”;
(b)     Mr Schokman had a long history of periodontitis;
(c)     accordingly, the periodontal condition was “not an injury that is ‘arising out of or in the course of [Mr Schokman’s] employment’”;
(d)     Mr Schokman’s periodontal condition was not an injury where “employment concerned was a substantial contributing factor to the injury”, and
(e)     the proposed treatment “resultant from periodontitis is ‘not reasonably necessary’ to treat an ‘injury received by a worker’ because periodontitis is not a work related injury”.
This notice demonstrated a misunderstanding of basic workers compensation principles and was fundamentally flawed. It was not alleged that Mr Schokman’s peri-implantitis was an injury under s 4 of the 1987 Act. Therefore, he does not have to prove that that condition was an injury that arose out of or was received in the course of his employment, or that employment was a substantial contributing factor to the condition. His case was and is that the treatment recommended by Dr Roessler is reasonably necessary as a result of the accepted injury in 1991. That issue was at least alluded to at point (e) above, though it was wrongly suggested that the proposed treatment is to treat periodontitis. The treatment proposed is to treat the peri-implantitis and to supply and fit a new bridge.
Mr Schokman claimed the cost of the proposed treatment in an Application to Resolve a Dispute (the Application) registered in the Commission on 16 October 2012.
In a Reply filed on 6 November 2012, the appellant’s solicitors confirmed that the issues in dispute were as per the s 74 notice, but added that the appellant denied that Mr Schokman “has suffered perimplantitis [sic] as a consequence of the injury suffered on 13 July 1991”.
In compliance with s 60(5), prior to determining the matter, the Commission referred to an Approved Medical Specialist (AMS) (Dr Thomas Boland) the following question:
“whether the proposed treatment is reasonably necessary as a result of the injury.”
In a non-binding Medical Assessment Certificate (MAC) issued on 1 October 2013, Dr Boland, dental surgeon, dealt with two separate matters: first, the treatment of Mr Schokman’s peri-implantitis and, second, the new bridge.
Dealing with the first issue, Dr Boland said, referring to Dr Roessler’s report of 11 July 2012, that to “say that a patient has peri-implantitis because they have an implant is simplistic and somewhat disingenuous”. Referring to a report in The American Academy of Periodontology titled Peri-Implant Mucositis and Peri-Implantitis: A Current Understanding of Their Diagnoses and Clinical Implications (the American Academy report), Dr Boland said that the report examined similarities between periodontitis and peri-implantitis, stating that peri-implant diseases have been associated with bacteria similar to those found around natural teeth in patients with severe chronic periodontitis.
Though the pathogenesis of peri-implantitis has not been specifically determined, Dr Boland said that the American Academy report highlighted a number of risk factors that may lead to the establishment and progression of peri-implantitis. For example, the report stated that peri-implantitis was a more frequent finding in patients with a history of periodontitis. Other factors mentioned in the report included poor plaque control and/or an inability to clean. This may be due to inadequate home-care procedures or unsuitable design of the superstructure. The report cited four reviews that concluded that there was an increased risk for peri-implantitis in smokers and also a review that suggested that occlusal overload was positively associated with peri-implant marginal bone loss. However, poor oral hygiene was still the key causative factor.
Based on his clinical findings on examination, Dr Boland was not able to make a diagnosis of peri-implantitis. He concluded that the periodontal work (local therapy around the left side implant) was not reasonably necessary.
Dealing with the second issue, the proposed new bridge, Dr Boland said that further information revealed that Dr Roessler was “now confident that he can refit the existing bridge and there is no mention of making a new bridge in his more recent reports”. Dr Boland also relied on:
(a)     Dr Roessler’s clinical entry in his notes of 16 August 2012, where he said “will need tissue removed to replace [the] bridge”;
(b)     part of Dr Roessler’s report of 20 August 2012, where Dr Roessler said that, following treatment by Dr Jackson, periodontist, he would “refit the bridge with new abutments and screws”, and
(c)     an email from Dr Jackson to Dr Roessler dated 18 October 2012 where Dr Jackson said “[Mr Schokman] can see you now for replacement of his implant bridge”.
Dr Boland concluded that the removal of the bridge, the investigation and replacement of the broken screws, as recommended by Dr Roessler, was reasonably necessary, but the construction and provision of a new bridge was not. He hoped that Mr Schokman could now proceed with having his original bridge refitted. Dr Roessler responded to this evidence in a report dated 10 November 2013, which is discussed below.
The Arbitrator (at [5]) identified the issue in dispute to be whether the treatment proposed by Dr Roessler, including the periodontal bridgework, was reasonably necessary for the purposes of s 60 of the 1987 Act. She said she had to be satisfied that the proposed treatment was reasonably necessary “as a result of” the subject injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)).
The Arbitrator accepted Dr Roessler’s evidence that, if not for the injury and the loss of Mr Schokman’s front teeth, Mr Schokman would not have required the treatment now recommended. She noted that the work injury did not have to be the “only” contributing factor to the need for treatment, and that the other possible factors had not been “proven” to be relevant in a causative sense. She was satisfied that the work injury contributed “in a material and real way to the present condition, and therefore the need for treatment” ([63]). The Arbitrator accepted Dr Roessler’s evidence that Mr Schokman required a new bridge.
On what she described as the “ultimate issue” ([70]) of whether Mr Schokman should have the treatment or not, the Arbitrator said, relying on Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 15 NSWCCR 233 (Bartolo) and Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41, that “[i]f in reason it should be said that [Mr Schokman] should not do without this treatment, then it satisfies the test of being reasonably necessary” ([70]). She was satisfied that Mr Schokman should have the treatment.
The Commission issued a Certificate of Determination on 11 December 2013 in which the appellant employer was wrongly identified as Taxi Combined Services. The Certificate of Determination made the following orders:
“The determination of the Commission in this matter is as follows:
Findings and Orders
1. In accordance with section 60(5) of the Workers Compensation Act 1987 the matter has already been referred to the Registrar for assessment under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.

2. The treatment as proposed by Dr Roessler, being local therapy around the left side implant and the construction of a new bridge, is reasonably necessary for the purposes of section 60(1) of the Workers Compensation Act 1987 as a result of the injury on 13 July 1991.

3. The respondent is to pay the costs of that proposed treatment as recommended by Dr Roessler.
4. The respondent is to pay the applicant’s costs as agreed or assessed.

Certification
1. In light of the medical, legal and factual complexities in this case and for the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2011 I certify this matter as complex with 20 per cent increase in the costs otherwise available to both parties.”

The employer has appealed.

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 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     her consideration of causation based on the principles outlined in Kooragang in accepting that the condition of peri-implantitis is causally related to Mr Schokman’s work injury, merely because of the existence of the dental implants;
(b)     failing to adequately consider the evidence relating to other factors such as Mr Schokman’s pre-existing periodontal condition and poor oral hygiene in analysing the chain of causation, and
(c)     considering the need for treatment as the “ultimate issue” in the proceedings in circumstances where the causal link between the work injury, the implants and the peri-implantitis condition was the main issue for determination.

FRESH EVIDENCE

Neither side has sought to tender fresh evidence or additional evidence on appeal. However, the appellant’s solicitor, Mr Pardy, has attached to his submissions a copy of the American Academy report that Dr Boland referred to in his MAC. Mr Pardy submitted that the report should be considered by the Presidential member who determines the appeal “as it assists to inform about the nature and development of peri-implantitis in considering the issue of causation”.
Attaching the American Academy report to the submissions on appeal, when the report was not attached to the MAC, and was therefore not in evidence before the Arbitrator, without making an application to tender the document as additional evidence on appeal, was improper. Nevertheless, as Dr Boland referred extensively to the report in his MAC, those parts of the report are in evidence and will be considered. However, to the extent that Mr Pardy’s submissions have referred to parts of the report not referred to by Dr Boland, I do not intend to consider them. I add, for completeness, that it is difficult to see how the report could have met the test for the admission of fresh evidence or additional evidence in s 352(6) of the 1998 Act. That is because, with reasonable diligence, it was clearly available at the time of the arbitration and because, even if the whole report were admitted, it would make no difference to the result. Thus, its exclusion would not cause any injustice in the circumstances.

SUBMISSIONS

Mr Pardy submitted:
(a)     the Arbitrator erroneously concluded that the mere fact of Mr Schokman having implants was, at least partially, causative of the development of the peri-implantitis;
(b)     the Arbitrator did not undertake a commonsense evaluation of the chain of causation, or adequately consider the evidence;
(c)     the Arbitrator erred in accepting that the injury in 1991 caused the peri-implantitis, based on the fact that the definition of the disease of peri-implantitis requires the existence of implants in the first instance. Her line of reasoning failed to consider the number of other factors that are causative of the condition and that the mere presence of dental implants does not lead to the development of peri-implantitis;
(d)     at [61], the Arbitrator concluded that it was Dr Roessler’s opinion, based on his report of 11 July 2012, that a connection existed between the peri-implantitis and implants “from the beginning”. She recorded that Dr Roessler referred to other relevant factors and she “drew the inference that Dr Roessler accepted a link between the condition of peri-implantitis and the injury in that report;
(e)     at [62], the Arbitrator did not agree that there was any material inconsistency between Dr Roessler’s opinion on 11 July 2012 and his report of 16 October 2012 and she accepted that his initial opinion was that the condition affects implants in different ways, but that his opinion also included the conclusion that the implant itself was causative of the condition (possibly along with other factors). Dr Roessler did not state there was a causative link between the development of peri-implantitis and the injury. He said that the condition is associated with chronic periodontitis, poor oral hygiene, smoking and some modern implant surfaces;
(f)      Dr Roessler said the condition was affecting one of Mr Schokman’s implants but not the other. This supports the conclusion that, even in the mouth of a patient who suffers peri-implantitis in one implant, there can be other implant sites which remain unaffected by the condition. A further conclusion can be drawn from that state of affairs, which is that the mere existence of an implant is not a causal factor in the development of peri-implantitis. Accordingly, it cannot be concluded, based on Dr Roessler’s opinion, that Mr Schokman’s peri-implantitis is causally related to the 1991 injury;
(g)     Dr Roessler’s opinion was not the best evidence regarding the state of Mr Schokman’s condition. Dr Roessler conceded in his report of 5 August 2013 that he did not do a complete examination of Mr Schokman when he last saw him on 12 September 2012. Dr Boland examined Mr Schokman on 19 July 2013 and was unable to make a diagnosis of peri-implantitis because there was no suppuration, soft tissue inflammation or bleeding around either implant site. Dr Boland’s opinion “should be considered persuasive”;
(h)     the Arbitrator erred in failing to adequately consider the evidence relating to the existence of the condition for which treatment was sought (peri-implantitis). If Dr Boland’s diagnosis was correct, there could be no proper basis for concluding that the treatment of a non-existent condition was reasonably necessary;
(i)      the Arbitrator erred in failing to adequately consider the evidence relating to other factors, such as Mr Schokman’s pre-existing periodontal condition and poor oral hygiene, in assessing the chain of causation. Dr Boland provided persuasive reasoning and historical evidence in support of the conclusion that Mr Schokman’s peri-implantitis was causally related to his poor oral hygiene and pre-existing periodontal disease;
(j)      Dr Boland referred to the American Academy report, which said that peri-implantitis is, by definition, located around implants. However, it is the cause of the inflammatory process around the implant leading to the diagnosis of peri-implantitis that is the real issue in the present matter. The correct inference to be drawn is that peri-implantitis arises at the site of implants due to non-work risk factors. Mr Schokman failed to maintain adequate oral hygiene prior to and following the placement of the implant bridge, was a long-term smoker and had periodontal disease dating back to at least 1991;
(k)     undertaking a commonsense evaluation of the chain of causation, the correct conclusion is that the need for treatment has been caused by Mr Schokman’s poor oral hygiene, pre-existing periodontal disease, or smoking, and not the work injury or the implants themselves;
(l)      by failing to consider the multiple non-work related factors present in Mr Schokman’s case, the Arbitrator has not correctly analysed the cause of the need for treatment, which is the ultimate issue for determination;
(m)   at [70], the Arbitrator recorded that the ultimate issue for consideration was should Mr Schokman have the treatment or not. Thus, she wrongly focused on Mr Schokman’s apparent need for treatment and did not adequately consider the issue of causation, in accordance with the principles in Kooragang, and
(n)     the Presidential member would not be satisfied that the development of the peri-implantitis and the need for treatment is causally related to the 1991 injury.

Counsel for Mr Schokman, Mr de Meyrick, submitted that the Arbitrator correctly identified and applied the relevant principles and made no error.

DISCUSSION AND FINDINGS

It is convenient to deal with Mr Pardy’s submissions under the following headings. First, did the Arbitrator err in finding that Mr Schokman has peri-implantitis? Second, did the Arbitrator err in finding that the work injury contributed in a material and real way to the need for the proposed treatment? Last, did the Arbitrator err in her statement of the ultimate issue?

Did the Arbitrator err in finding that Mr Schokman has peri-implantitis?

The Arbitrator accepted (at [59]) that Dr Roessler is a highly qualified specialist prosthodontist. That statement was appropriate and consistent with the evidence, which disclosed that, in addition to the usual undergraduate qualifications in dentistry, Dr Roessler holds a Masters of Dental Science in Prosthodontics and is a Fellow of the Royal Australian College of Dental Surgeons. In addition, he is an Adjunct Associate Professor at Sydney University and lectures at undergraduate and postgraduate level in Australia and internationally about all facets of restorative treatment, fixed and removable prosthetic dentistry, implants, aesthetics, and the diagnosis and conservative management of jaw and facial pain.
The Arbitrator referred (at [69]) to Dr Boland’s evidence that he was unable to make a diagnosis of peri-implantitis. She accepted the consistent diagnosis put forward by Dr Roessler, placing significant weight on the fact that he is a specialist prosthodontist and that Dr Byrne is a specialist periodontist. She considered Dr Boland’s opinions and conclusions and preferred the expert evidence of Dr Roessler.
In light of Dr Roessler’s qualifications, which clearly played a part in the Arbitrator’s overall assessment of the evidence, and was something that she was entitled to consider (English v Emery Reimbold [2002] EWCA Civ 605 per Lord Phillips MR at [73]), the submission that his opinion was not the best evidence regarding the state of Mr Schokman’s condition was surprising. As the treating specialist, he was well placed to make a diagnosis and it was open to the Arbitrator to accept that diagnosis. Dr Boland’s evidence was relevant and was evidence that the Arbitrator considered. However, the submission that Dr Boland’s evidence was “persuasive” did not establish error by the Arbitrator. His opinion was not determinative and the Arbitrator was not bound to accept it.
That Dr Roessler did not conduct a complete examination in September 2012 was not decisive. That evidence had to be considered with the evidence in his report of 10 November 2013 where he said that peri-implantitis is “often diagnosed by radiographic appearance alone” and that it is not simply the bone level but the shape of the bone loss. The Arbitrator was well aware of that evidence, having referred to this general point (at [20]) when summarising the submissions made on behalf of Mr Schokman.
Moreover, in his report of 10 November 2013, Dr Roessler made the following observation about Dr Boland’s opinion:
“Further, on Page 9 of his report, Dr Boland states that ‘anything other than gentle probing elicited a withdrawal response …’. He then concludes from this that he is not able to make a diagnosis of peri-implantitis even though he did not take a radiograph and conceded that he could not probe properly.”
Though he did not expressly say so, the implication from Dr Roessler’s report is that, as Mr de Meyrick submitted, he was obviously critical of Dr Boland’s conclusion.
The Arbitrator considered this issue in light of the submissions made and the evidence tendered. Her acceptance of Dr Roessler’s evidence on diagnosis disclosed no error.

Did the Arbitrator err in finding that the work injury contributed in a material and real way to the need for the proposed treatment?

After setting out a detailed summary of the parties’ submissions, which included a summary of the relevant evidence, the Arbitrator started her analysis by quoting the test of causation in workers compensation matters stated by Kirby P (as his Honour then was) at 463G in Kooragang where his Honour said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
It has not been suggested that that test was incorrect, or was not applicable in the present matter. Rather, Mr Pardy has argued, in essence, that the Arbitrator erred in her application of it to the circumstances of the present case because Dr Roessler did not state there is a causative link between the development of peri-implantitis and injury. I do not agree.
The Arbitrator said (at [61]) that Dr Roessler had referred to a connection between peri-implantitis and implants “from the beginning”. She noted that he also referred to other relevant factors, including poor oral hygiene and smoking, indicating that a link between such factors and the condition had not been proven. She said that the appellant had “overstated” the importance of these factors. In her view, Dr Roessler was:
“suggesting the genesis of the condition may not always be clear, and that several factors may contribute to the condition. However even in this early report [of 11 July 2012] Dr Roessler accepts a link between the condition and the fact of the implants.” ([61])
The Arbitrator’s reference to “from the beginning” was a reference to Dr Roessler’s report of 11 July 2012 where he explained that causes of peri-implantitis were not well understood and that there was no general agreement in the literature. He added that it appeared to be a “site specific problem”, that is, it can affect one implant but not others, as is the case with Mr Schokman, and that there were associations with periodontitis, poor oral hygiene and smokers, however, none of those factors had been proven. This evidence provided support for the Arbitrator’s statements at [61], but even if it did not, it was not the end of the Arbitrator’s analysis.
The Arbitrator said (at [62]) that Dr Roessler stated his position “even more clearly” in his report of 16 October 2012, where he said that peri-implantitis is an infection unique to dental implants and is only present because Mr Schokman has implants. The Arbitrator did not accept the appellant’s submission that Dr Roessler’s statement in his October 2012 report was inconsistent with his earlier report, where he had referred to other factors.
She noted that the October 2012 report explained, in more detail, that the implant was causative of the condition (possibly along with other factors). In her view, there was no doubt that Dr Roessler was of the opinion that Mr Schokman’s peri-implantitis was causally related to the injury or was a consequence of it. She added (at [62]) that Dr Roessler was “unequivocal” in his conclusion that, if not for the injury and the loss of his front teeth, Mr Schokman would not have required the proposed treatment. The Arbitrator therefore accepted Dr Roessler’s opinion and rejected the appellant’s submissions.
Dr Roessler’s October 2012 report answered specific questions put to him by Mr Schokman’s solicitor. Relevantly, his report reads:
“Your questions are set out below and answered in the order they have been asked:
1. Whether the periimplantitis or periodontitis has been aggravated by the implant
Periimplantitis is an infection unique to dental implants. It is only there because Mr Schokman has implants. The implants do not aggravate periodontitis.
2. Whether the periimplantitis or periodontitis if left under treated will impact on the viability of the implant
If the periimplantitis is left untreated it is highly probable that the implant will eventually fail and be lost. This will also mean that the entire bridge will be lost.
Treatment of the periimplantitis by cleaning and recontouring the infected area in combination with local chemical therapy will alter the contour of the tissues. This will mean that Mr Schokman will then require a new bridge.
3. In light of the above, and any other relevant considerations, whether the proposed treatment is reasonably necessary in connection with Mr Schokman’s injury.
At the time of the injury, Mr Schokman had all of his upper front teeth. If not for the injury, it is likely that he would still have all of his front teeth. In my opinion, all maintenance and/or replacement of the implants and/or the bridge is directly connected to the injury.” (emphasis included in original)
It is difficult to imagine a clearer or more emphatic statement of the commonsense link between peri-implantitis and the injury. It was perfectly logical and consistent with the history of the matter: peri-implantitis is unique to dental implants, the implants are present because of the injury, and maintenance of the implants is “directly connected to the injury”. The reference to “maintenance” of the implants includes treatment of conditions present because of the implants, such as peri-implantitis.
This evidence provided a sound basis for the Arbitrator’s conclusions and it was evidence that was open to her to accept and she clearly did accept it. It follows that the submission on appeal, namely, that Dr Roessler did not state there was a causative link between the development of the peri-implantitis and the injury, is untenable.
Mr Pardy’s submission that the peri-implantitis has only affected one side and therefore the implant is not a causal factor in the development of peri-implantitis is not supported by the evidence and is rejected. While Dr Roessler acknowledged that peri-implantitis is a “site specific problem”, and that it is unique to dental implants, he did not suggest that it occurs in every implant.
The submission that, in assessing the chain of causation, the Arbitrator failed to consider adequately the evidence relating to other factors, such as Mr Schokman’s pre-existing periodontal condition and poor oral hygiene, is incorrect and has ignored the Arbitrator’s reasons. The Arbitrator expressly dealt with the evidence as to other possible causative factors at [63] and [64]:
“63.The fact that Dr Roessler allows for the possibility that other factors might contribute to the condition does not mean the need for treatment does not now result from the work injury. The work injury does not have to be the ‘only’ contributing factor. There may be several contributing factors, although in this case Dr Roessler suggests other possible factors have not been ‘proven’ to be relevant in a causative sense. Nonetheless I need only to be satisfied the work-injury contributes in a material and real way to the present condition, and therefore the need for treatment. I am so satisfied.
64. In this regard some of the submissions for the [appellant] are misconceived. The [appellant] relies on the fact [Mr Schokman] had a long history of periodontal disease and I accept there is some evidence to that effect in the reports of Dr Goodman, Dr Jackson and Dr Roessler. However[,] that background, or pre-existing problem, does not alter Dr Roessler’s opinion that there is a clear causal connection between the present condition and the fact of implants. The fact of a pre-existing condition does not mean the present condition and the need for treatment do not ‘result from’ the assault in the sense discussed in Kooragang.”
The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler [2007] NSWCA 249 at [40]; 5 DDCR 286).
Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury. The appellant’s approach has ignored the fact, highlighted by Dr Roessler, that Mr Schokman required implants because of his injury, not because of his pre-existing periodontitis. The appellant’s submissions have also ignored Dr Roessler’s unequivocal evidence that the maintenance he has recommended is “directly connected to the injury”, which provided compelling support for the Arbitrator’s conclusion that the need for the treatment is necessary “as a result of” the injury.
Mr Pardy’s submission that the correct inference is that the peri-implantitis has arisen at the site of the implants due to non-work risk factors is, for the reasons explained by the Arbitrator, incorrect. It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from Dr Roessler, he easily met that test.
It follows that, even if it were accepted that the peri-implantitis was “caused” (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of commonsense, the need for the proposed treatment has arisen “as a result of” the injury. That is because, as Dr Roessler explained, the peri-implantitis is “only there because Mr Schokman has implants”. This is not a matter of merely saying that “but for” the presence of the implants Mr Schokman would not have the peri-implantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of commonsense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need.
It follows that the Arbitrator’s approach and conclusions were open on the evidence and disclose no error.

Did the Arbitrator err in her statement of the ultimate issue?

The submission that the Arbitrator wrongly focused on Mr Schokman’s apparent need for the treatment and failed to consider adequately the issue of causation has ignored the Arbitrator’s reasons and is rejected.
After dealing with whether the need for the proposed treatment resulted from the injury, that is, after dealing with the causation issue, the Arbitrator said, at [70]:
“70.The ultimate issue is whether the applicant should have the treatment or not. Relying on Yee as quoting Burke CCJ in Bartolo, if it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said [Mr Schokman] should not do without this treatment, then it satisfies the test of being reasonably necessary. Having considered the evidence carefully as well as the submissions of the parties I am satisfied [Mr Schokman] should have the treatment as proposed by Dr Roessler, being local therapy around the left side implant and the construction of a new bridge. I do not accept that, at this stage and in his circumstances, [Mr Schokman] should do without the treatment as proposed and I therefore conclude it is reasonably necessary as a result of the work injury in 1991.”
Contrary to Mr Pardy’s submission, the Arbitrator did not determine the claim by reference to whether Mr Schokman should have the treatment. Reading the decision as a whole, it is clear that the Arbitrator used the word “ultimate” at [70] of her decision in the sense of “final” or “last” in a series of questions, not in the sense of the “fundamental” question that had to be determined. That involved no error.
Section 60 requires an Arbitrator to answer two questions: first, whether the condition that is said to give rise to the need for the treatment has arisen “as a result of” the injury and, second, whether the treatment is “reasonably necessary”. Both questions must be answered in the affirmative before a worker can succeed. The Arbitrator discussed the first question (which has been the subject of challenge on appeal) from [61] to [69] and concluded that question in favour of Mr Schokman. For the reasons explained above, that finding was open to her and disclosed no error.
It was the second question that the Arbitrator focused on at [70], which she approached by asking if Mr Schokman should have the treatment. Having considered the evidence and the parties’ submissions, the Arbitrator concluded that Mr Schokman should have the proposed treatment, which includes the local therapy around the left side implant by Dr Byrne (to treat the peri-implantitis) and the construction of a new bridge.
Whether it is reasonably necessary that Mr Schokman have Dr Byrne’s treatment turns on whether the peri-implantitis is present. The Arbitrator accepted Dr Roessler’s evidence that it is and the appellant has not argued that, if it is accepted (contrary to its contention) that the peri-implantitis is present as a result of the injury, it is not reasonably necessary for Mr Schokman to have the treatment.
In the course of dealing with the causation issue, the Arbitrator considered (at [65]–[67]) whether a new bridge is reasonably necessary. She accepted Dr Roessler’s evidence that the cleaning and reshaping of the infected area (to treat the peri-implantitis) will alter the contour of the tissues, thus requiring a new bridge. Except for the challenge to the causation finding, which I have rejected, this finding has not been challenged on appeal. As the challenge to the causation finding has been unsuccessful, it follows that the Arbitrator’s finding that the supply and fitting of a new bridge is reasonably necessary is also upheld.
In any event, the Arbitrator’s finding that a new bridge is reasonably necessary is well supported by the evidence from Dr Roessler that, even if the recommended periodontal work is not done, it will “be difficult or impossible to retrofit the [old] bridge” because the porcelain is cracked and chipped. In addition, Dr Roessler said that porcelain of “this age, if placed in a furnace for repair, tends to fracture”. Moreover, the abutments and screws used for the old bridge are damaged and must be replaced, but they are no longer manufactured.
The Arbitrator acknowledged (at [65]) that Dr Roessler initially thought that repair of the old bridge was a possibility, which was one of the main reasons Dr Boland gave for stating that a new bridge is not reasonably necessary, but (at [67]) accepted Dr Roessler’s later evidence as summarised above. Her acceptance of that evidence was open to her and involved no error.

CONCLUSION

Causation is a question of fact (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 per Mason CJ at [16]). The Arbitrator’s findings were well supported by expert evidence from an eminently qualified prosthodontist and disclosed no error. Effectively, the appellant sought to conduct a rehearing of the claim, something that is not permitted under s 352.

DECISION

Save to amend the name of the appellant employer to read Taxi Combined Services (Victoria) Pty Ltd, the Arbitrator’s determination of 11 December 2013 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

8 April 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE