The Executive Inn Pty Ltd v Mackinney
[2024] NSWPICPD 27
•14 May 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | The Executive Inn Pty Ltd v Mackinney [2024] NSWPICPD 27 |
APPELLANT: | The Executive Inn Pty Ltd |
RESPONDENT: | Margaret Therese Mackinney |
INSURER: | Hotel Employers Mutual Limited |
FILE NUMBER: | A1-W518/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 14 May 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 29 June 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – whether an accepted work injury has resolved – ongoing entitlement to weekly compensation – the relevance of medical evidence – May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 considered |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr M van der Hout | |
| BBW Lawyers | |
| Respondent: | |
| Mr M Bechelli, solicitor | |
| Whitelaw McDonald | |
DECISION UNDER APPEAL: | Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311 |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 29 June 2023 |
INTRODUCTION
The respondent, Ms Margaret Mackinney, was employed by the appellant as a housekeeper. There is no dispute that whilst at work with the appellant on 7 July 2020, the respondent suffered injury to her back while trying to make up a foldout bed. The respondent has not worked since that date and managed her injury through conservative treatment measures, including spinal block injections in 2021.[1] The appellant accepted liability and made payments of weekly compensation and medical expenses until a notice was issued to the respondent under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) declining ongoing liability from 19 July 2022 on the basis that she had recovered from her work injury, and her continuing symptoms were due to a pre-existing condition. This notice was dated 7 June 2022 and raised ss 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act).[2]
[1] Reply to Application to Resolve a Dispute (Reply), pp 33–37.
[2] Application to Resolve a Dispute (ARD), p 4.
The respondent sought a review of the s 78 notice, which was rejected by way of a s 287A notice issued under the 1998 Act.[3]
[3] ARD, p 56.
As a consequence of this denial of liability, proceedings were commenced by the respondent in the Personal Injury Commission, claiming weekly compensation pursuant to s 37 of the 1987 Act from 19 July 2022 to 17 January 2023.[4]
[4] While the respondent’s ARD claimed ongoing weekly compensation from 19 July 2022 pursuant to ss 37 and 38 of the 1987 Act, as is referenced by the Member in the Reasons, the orders sought by the respondent in her written submissions dated 14 April 2023 limited the claim to a closed period, at p 7.
The proceedings were the subject of a preliminary conference before Member Wynyard on 6 March 2023. As the matter did not resolve, the Member directed that written submissions be filed and exchanged, which direction was complied with by the parties. The issues for determination by the Member were whether the respondent’s injury had resolved and any resulting entitlement to weekly compensation.
The Member subsequently made an award in favour of the respondent worker in a decision dated 29 June 2023.[5] The Member held that the respondent had not recovered from her work injury and continued to be incapacitated for work, thus ordering the appellant to pay weekly compensation. It is from this decision that the appellant seeks relief on appeal.
[5] Mackinney v The Executive Inn Pty Ltd [2023] NSWPIC 311 (reasons).
THE MEMBER’S REASONS
The Member referred to the independent medical reports of Dr Chris Harrington, orthopaedic surgeon, of 19 November 2020 and 13 January 2022, relied on by the appellant in its s 78 notice.[6] In his initial report, Dr Harrington diagnosed the respondent with acute back pain as a result of the injury, but also canvassed the possibility she suffered an aggravation of previously asymptomatic conditions in her spine. The doctor estimated it would take approximately six months for this to settle and recommended conservative treatment. At the time of his second report, the doctor understood that the respondent had undergone bilateral medial branch block injections in 2021 (under the care of Dr Willem Volschenk, treating pain specialist) which were ineffectual in resolving her symptoms. Dr Harrington confirmed that the respondent continued to suffer from pain and incapacity for her pre-injury duties; but opined that the work injury of 7 July 2020 had ceased, and ongoing presentation was due to “intrinsic” issues in her spine. Dr Harrington did not think the respondent presented with any serious spinal pathology suggestive of a “significant deterioration”.[7]
[6] ARD, pp 13–25.
[7] Reasons, [25]–[37].
The Member was of the view that Dr Harrington’s opinion was “logically unsupportable”, as he offered no explanation as to why the condition in her spine had continued. There had been no attack on the respondent’s credit. The Member observed that Dr Harrington had been supportive of the respondent’s complaints, apart from finding that compensation would not be payable in his second report.[8]
[8] Reasons, [94]–[95], [103].
The Member reviewed the medico-legal opinions of Dr Alan Hopcroft, orthopaedic surgeon, whose reports of 10 August 2022 and 1 September 2022 were qualified by the respondent in seeking the s 287A review.[9] In the first report, Dr Hopcroft queried Dr Harrington’s opinion of the work injury resolving, stating that it appeared to ignore the respondent’s ongoing pain and his own finding that the spinal injections were unsuccessful. Dr Hopcroft felt it necessary to investigate the left sacroiliac joint and ordered a diagnostic therapeutic injection which took place on 30 August 2022. In his second report of 1 September 2022, the doctor records a phone call with the respondent in which she advised of a successful outcome of the injection. Dr Hopcroft nonetheless commented that the outcome of the injection would be variable and would require monitoring and potential repetition into the future. The respondent was still unfit for pre-injury work. Dr Hopcroft assessed the respondent with 7% whole person impairment.
[9] ARD, pp 37–55.
A primary argument of the appellant’s turned on this report of 1 September 2022, and a purported “critical inconsistency” with the respondent’s statement of 16 November 2022, wherein the respondent stated that she informed Dr Hopcroft that the injection worked on 30 August 2022, but her “pain returned as usual” the following day.[10] The appellant said there were no contemporaneous clinical records to support the nature, duration or frequency of any treatment. The respondent’s assertions were untested, and thus could not be determinative. The medical evidence alone, it was argued, demonstrated she was pain free as of 30 August 2022 when she had informed Dr Hopcroft the injection had worked. In a similar vein, the appellant argued that no evidence had been tendered as to the respondent’s incapacity. This, the appellant said, was a significant omission on the part of the respondent and raised a Jones v Dunkel[11] inference.[12]
[10] Respondent’s statement of 16 November 2022, ARD, p 1.
[11] [1959] HCA 8; 101 CLR 298.
[12] Reasons, [49]–[60].
In considering this argument, the Member noted that there was no attack on the respondent’s credit, and observed that the evidence before him appeared to confirm continuing symptoms since injury, apart from the “one occasion relied on so heavily by the [appellant] on the day of her diagnostic injection by Dr Hopcroft”.[13] The Member accepted a potential discrepancy as to when the phone call between the respondent and doctor occurred, as an inference could be drawn from Dr Hopcroft’s report that the respondent reported the injection’s success on 1 September 2022 (the day after the injection), but her statement inferred that her pain had actually returned on this day. The Member also considered there to be merit in the appellant’s criticism of the respondent’s preparation of her case, and acknowledged the respondent’s lack of reference to her capacity within her statement, and the lack of evidence tendered following Dr Hopcroft’s report.[14]
[13] Reasons, [82].
[14] Reasons, [83]–[85].
However, these deficiencies were to be balanced with the whole of the evidence, in the context of whether the respondent had satisfied her onus of proof.[15] The effect of the injection was to be considered in the context of the evidence of her pathology; the fact that injections of this nature would have a numbing effect for a short time; the radiologist (who conducted the injection) recommending a two-week follow up; Dr Hopcroft’s own opinion that the outcome of the injection would be variable, and the respondent’s assertion that her pain had returned on the background of prior injections also failing to provide ongoing relief. Accordingly, the Member accepted the respondent’s position that she continued to be symptomatic since the work injury.[16]
[15] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), [55].
[16] Reasons, [91]–[93].
It was the appellant’s view that Dr Harrington’s opinion should be accepted, in that the injury was not serious, but a temporary aggravation, which was consistent with the opinion of the respondent’s treating neurosurgeon, Dr Ferch, who did not find any significant pathology in the spine and thus did not recommend surgical intervention,[17] as well as Dr Volschenk who was quoted in the s 78 notice as not finding significant leg pain or right sided back pain[18].[19] With respect to Dr Ferch’s comment that the respondent had not suffered a “significant structural injury to [her] back”, the Member held that there was no requirement for an injury to be structural, or significant, to qualify for workers compensation. Further, while it is true Dr Volschenk made those assertions, the appellant failed to refer to the doctor’s next sentence which clearly indicated that she had persistent left sided lower back pain.[20]
[17] Reply, p 43.
[18] Reply, p 36; ARD, p 5.
[19] Reasons, [61]–[75].
[20] Reasons, [96]–[99].
In assessing the respondent’s capacity for work, the Member referred to both Dr Hopcroft and Dr Harrington’s opinions that the respondent would be unfit for pre-injury duties. The Member placed weight on Dr Harrington’s opinion that the respondent may be fit for light duties but would require retraining and rehabilitation. With reference to her age, work-experience and education (as required by s 32A of the 1987 Act), the Member found that the respondent did not possess any capacity for any work and ordered the payment of weekly compensation.
The Certificate of Determination issued on 29 June 2023 records:
“1. The [appellant] will pay the sum of $360 per week from 19 July 2022 to 3 January 2023 pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act).”
GROUNDS OF APPEAL
The appellant pursues this appeal in a very narrow ambit challenging the Member’s findings on the question of incapacity. Two grounds are advanced which I set out below:
Ground 1 – The Member misdirected himself in determining that there was sufficient evidence to find that the respondent had total incapacity from 30 August 2022.
Ground 2 – An error in fact in finding that there was ongoing total incapacity.
The appellant seeks orders revoking the Certificate of Determination dated 29 June 2023 and substituting orders for the payment of compensation up to 31 August 2022, with an award in favour of the appellant thereafter.[21]
[21] Appellant’s submissions 27 July 2023, [2(j)].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 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 and enabling legislation without holding any conference or formal hearing.”
Neither party seeks an in-person hearing in this matter. Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; 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.
DISCUSSION
As to Ground 1
The appellant argues that:
“There were no certificates of capacity whatsoever in the ARD. There was a notable deficiency of a report from the [nominated treating doctor] confirming ongoing complaints of pain and/or incapacity. As it stood, on medical evidence alone, the Respondent was pain free in her back as at 30 August 2022.”[22]
[22] Appellant’s submissions 27 July 2023, [14].
The appellant says that it “did not put in issue a contention that symptoms as alleged by the worker were somehow manufactured or the result of dishonesty.”[23] The issue always was that the injury had resolved. The appellant says that notwithstanding raising no credit issue, the Member approached the matter as if credit was in issue.
[23] Appellant’s submissions 27 July 2023, [17].
The appellant maintains that:
“Member Wynyard’s validation for the Respondent’s total incapacity, absent any actual contemporaneous medical evidence, and on the background of his own commentary regarding the temporal gaps and preparation of the case, was an error of law. The Appellant submits, the lack of updated medical evidence should not permit the Member to interpret outdated medical evidence and infer that the worker was likely to have reverted to her symptomatic state following an injection, leading to a total incapacity.”[24] (emphasis in original)
[24] Appellant’s submissions 27 July 2023, [19].
The appellant submits that the standard of “reasonable satisfaction” referred to in Briginshaw v Briginshaw[25] cannot be met “by weak or inexact evidence”.[26] The appellant complains that there is no medical evidence beyond 30 August 2022 supporting incapacity, and again asserts that on 1September 2022 the respondent reported to Dr Hopcroft feeling pain free in her back after the injection had been administered the day before.[27]
[25] [1938] HCA 34; 60 CLR 336.
[26] Appellant’s submissions 27 July 2023, [22].
[27] Report of Dr A Hopcroft, 1 September 2022, ARD, p 48.
The appellant says that the Member “misdirected himself in determining that there was sufficient evidence to find that the Respondent had total incapacity beyond 30 August 2022, based on mere assumptions and vague inferences.”[28]
[28] Appellant’s submissions 27 July 2023, [23].
In response the respondent argues that the only issue disputed in the s 78 notice was causation, not incapacity. As a consequence, the respondent states there was no need for medical evidence on the issue of incapacity.[29]
[29] Respondent’s submissions 9 August 2023, [2]–[3].
The respondent responds to the issue about her credit.[30] I have considered these submissions but do not repeat them for the purposes of this decision.
[30] Respondent’s submissions 9 August 2023, [4]–[10].
The respondent relies on the Member’s review of the medical evidence, particularly at reasons [94], and says there is no basis for the submission that the Member was in error in finding total incapacity.
In its reply submissions, the appellant says incapacity was disputed in the s 78 notice. The appellant says that Dr Harrington’s opinion, referred to at reasons [94], was given prior to the respondent reporting that she was pain free on 1 September 2022 and as a result, the doctor’s opinion is deficient for not having that information.
Consideration
Firstly, I do not accept the respondent’s submission that the question of incapacity had not been disputed. A cursory review of the s 78 notice confirms that incapacity for work was indeed disputed, the insurer clearly stated in its decision to decline liability that “you are not incapacitated for work …”[31] and “… we do not agree that you have a total or partial incapacity for work”.[32] There is nothing in this complaint.
[31] ARD, p 5.
[32] ARD, p 6.
I now turn to the appellant’s arguments in this ground, which can be distilled into the following proposition. The appellant says that the respondent needed to present medical evidence of incapacity beyond 30 August 2022 and did not do so. In the absence of such medical evidence the Member was in error to proceed to find incapacity. There is a subsidiary controversy about the respondent’s credit, which has a tendency to confuse the real issue in dispute and neglect other evidence. The dispute the Member was called upon to decide was whether the respondent’s pain (a) continued to be work-related or (b) was attributable to the “intrinsic” nature of her lumbar spine in accordance with Dr Harrington’s opinion.[33]
[33] ARD, pp 23–24.
As described above, the respondent had a spinal injection on 30 August 2022 and reported to Dr Hopcroft that she felt pain free which the doctor recorded in his report. This was confirmed by the respondent in her statement where she says the following: “Dr Hopcroft rang me on the same day as I had the diagnostic therapeutic injection which was on 30 August 2022 and on that day after having the injection, I was pain free.” But in the same passage the respondent added the following: “However, the following day the pain returned as usual. I have not had any further injections and the pain has continued.”[34]
[34] Respondent’s statement 16 November 2022, ARD p 2, [15].
The Member reviewed Dr Hopcroft’s opinions at reasons [38]–[48]. He correctly records the doctor’s opinion that the result of such injections is “variable“.[35] Tellingly, the Member dealt with Dr Hopcroft’s opinion of 1 September 2022 at reasons [91]–[92] before making his finding that the respondent continued to be symptomatic at reasons [93]. Dr Hopcroft’s opinion is not as has been argued by the appellant in this ground. The appellant asserts that once Dr Hopcroft recorded the pain relief experienced by the respondent after the injection, all incapacity ceased. But this does not do justice to an examination of Dr Hopcroft’s report of 1 September in its entirety. The doctor goes on to say, “I can now advise that the outcome from that injection is variable and may give the patient six months of significant improvement in her sacroiliac joint pain, or may need repeated [sic] from time to time, no more often than two or maximum three times per year.”[36] The doctor then says:
“This patient suffered a significant injury to her lumbosacral sine and sacroiliac joints in the work-related accident of 7 July 2020, and has ongoing significant low back pain with left-sided sciatic symptoms along with a wrenching injury of the sacroiliac joint which will require monitoring by her general practitioner into the future.
It is my opinion the injury suffered in the course of her work was the substantial contributing factor to her current ongoing significant spinal disfunction, and I believe she will be compromised in any attempt to return to repetitive bending and lifting work such as was carried out in her pre-injury employment, and she would be advised therefore to seek lighter work into the future.”[37]
[35] Reasons, [46].
[36] ARD, p 48.
[37] ARD, p 49.
Whilst Dr Harrington, in his report of 13 January 2022,[38] says that the respondent’s condition is no longer related to her employment, rather it is due to the “intrinsic nature of her spine”,[39] he is of the view that she is not fit for pre-injury duties. Given her age and back condition, Dr Harrington opines that “[f]or all intent and purpose, Ms MacKinney is a retiree.”[40] Dr Harrington is of the view, when ones considers his opinion as a whole, that the respondent is totally incapacitated. I would remark that this opinion is not qualified as to time.
[38] ARD, p 20.
[39] ARD, p 23.
[40] ARD, p 24.
The appellant had directed the Member’s attention to Nguyen, which sets out the correct approach to fact finding.[41] In summary, this requires a decision maker to feel that an ‘actual persuasion’ of the existence of a fact is greater than its non-existence.
[41] Reasons, [87]–[88].
This is the principle that the Member acted upon. In particular, he reasoned why Dr Harrington’s opinion about the pain being a part of the intrinsic nature of the respondent’s back did not mean that the aggravation had ceased.[42] This was within the Member’s decision-making discretion without error.
[42] Reasons, [100]–[104].
However, the essence of this appeal ground relates to the appellant’s complaint that there was no medical evidence after 30 August 2022 supporting a finding of total incapacity. Indeed, the appellant’s submission elevates the requirement for there to be such medical evidence as constituting the sine non qua of a member making a finding of incapacity. This is not correct in principle. The question of the need or role for medical evidence was examined in May v Military Rehabilitation and Compensation Commission[43] where the Full Federal Court found:
[43] [2015] FCAFC 93; 322 ALR 330 (May).
“118. The meaning of the word ‘injury’ in s 4(1) comes in part from the statutory legal context of, and what is revealed by, cases such as Hume Steel, McIntosh, Zickar and Kennedy Cleaning. The phrases used in those cases are not substitute definitions, but are exemplifications of meaning. Their utility and relevance will often be influenced or dictated by the precise context. For instance, suddenness is of particular relevance when distinguishing between the natural progression of a disease and an event or incident that is an injury. Also, there is a degree of ordinary meaning or common understanding involved, as was recognised by Latham CJ in Hume Steel: the difference between getting hurt and becoming sick. Medical evidence or opinion will, of course, be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.
…
209. A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of ‘injury’ in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls ‘symptoms’ and the need for a ‘diagnosis’. As part of the statutory question, one asks whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.
…
211. Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as ‘symptoms’) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.
…
216. This focus on the lack of pathology, aetiology or diagnosis which the Tribunal emphasises again at [62] and [66] of its reasons, illustrates the Tribunal’s misconception that it needed to be satisfied of an appropriate clinical diagnosis of the physiological disturbances the appellant reported before it could find he had suffered an ‘injury’ within s 4(1).
217. This focus on the need for an appropriate clinical diagnosis reflects a tendency to elevate a requirement for one kind of proof (medical opinion) over reasonably founded lay common-sense inference that is not scientifically derived, but drawn from the plain sequence of events. In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Rich ACJ said the following at 563–564:
‘In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore’s labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone: cf. Partridge Jones and John Paton Ltd v James. I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. The conclusion of the special magistrate may prove to be in advance of its time, but, as matters stand, I prefer that of the Full Court.’” (emphasis added)
Whilst May was appealed to the High Court, these remarks were not affected by the decision of the High Court. Just like the unsuccessful party in May (on this issue), the appellant seeks to elevate medical opinion over lay evidence, which had not been challenged. Just as in May, a close examination of the sequence of events, especially after the injection, provides a basis for the Member’s findings. I should say that these findings based on the respondent’s evidence are not contrary to any of the medical opinion. I do not accept the assertion that the Member acted on “mere assumptions and vague references”. This submission does not engage with the evidence.
These comments from May also sit comfortably with the approach to fact finding from cases such as Nguyen and as found by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[44] In Branir, his Honour said: “in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[45] This passage from Branir and the remarks in May reflect the approach on appeal to the Member’s fact-finding in this case. I do not accept the appellant’s submission that the Member wrongly elevated the appellant’s evidence into an issue regarding credit as argued in the appellant’s submissions of 27 July 2023 at [17].
[44] [2001] FCA 1833 (Branir).
[45] Branir, [28].
I do not accept that, in the circumstances of this case, the Member was in error to proceed in the manner in which he did. Rather he considered the evidence, both lay and expert, and having weighed it, accepted that the respondent’s work injury had not recovered, and found the respondent was incapacitated for work.[46] Indeed one of the deficiencies in the appellant’s argument is its failure to address the respondent’s evidence that the pain relief post-injection was short lived. The appellant has for the purposes of its argument, set this evidence at nought. It was correct for the Member to weigh the entirety of the evidence. There was no error in this approach.
[46] Reasons, [106]–[107].
I also do not accept that there is a dearth of medical evidence after 30 August 2022 going to the question of incapacity. The reports of Drs Hopcroft and Harrington, the salient sections of which I have outlined above at [31]–[33], reveal the doctors both considered that the respondent was incapacitated for work, with little if any residual capacity. Dr Hopcroft opines that the respondent could perform lighter duties and her prognosis is guarded.[47] Both of these doctors gave opinions on or before 1 September 2022, which was Dr Hopcroft’s last report. But their opinions regarding the respondent’s capacity for work were not time limited, notwithstanding Dr Harrington’s opinion that the appellant should not be liable for this incapacity, a proposition which was not accepted by the Member. There is therefore support within the doctors’ opinions to substantiate a finding of ongoing incapacity. Neither opinion is supportive of the appellant’s submission that the respondent is fit for work post 30 August 2022. The appellant’s assertion to the effect that the respondent has capacity after this date has not been established and hence there is no error on the Member’s part in so finding.
[47] ARD, p 49.
Error has not been established. Ground 1 is dismissed.
As to Ground 2
The appellant asserts that “in the absence of updated clinical notes from any treating practitioner, certificates of capacity or, at least a report from the [nominated treating doctor], the Appellant submits that it was not open to Member Wynyard to automatically accept that the Respondent had total incapacity.”[48]
[48] Appellant’s submissions 27 July 2023, [24].
The appellant says that Dr Hopcroft did not reach an opinion that the respondent was unable to participate in any form of employment as ultimately was found by the Member. The appellant also asserts that Dr Harrington’s opinion had been superseded by the respondent telling Dr Hopcroft that she was pain free, 8 months after Dr Harrington had reported in January 2022. The appellant says that Dr Harrington’s opinion was “merely an opinion in time and not reflective of the ongoing claim. The Appellant submits that there was no longer a ‘fair climate’ to rely upon the opinion of Dr Harrington with respect to ongoing incapacity (post 30 August 2022).”[49]
[49] Appellant’s submissions 27 July 2023, [28].
In response, the respondent says that the appellant has failed to show how the Member’s conclusions were wrong, or what facts were overlooked or given little or undue weight.[50] In its reply submission, the appellant repeats what it said about Dr Hopcroft’s opinion on the question of capacity for work and says that the respondent should have obtained additional medical evidence.
[50] Respondent’s submissions 9 August 2023, [18], citing Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.
Consideration
This ground suffers from the defect that the error said to have been committed by the Member has not been, in terms, articulated. Rather, the ground is in truth an impermissible attempt to re-prosecute the merits. This ground is also a derivation of the complaint from Ground 1 that I have dismissed. To the extent that this ground relies upon arguments in Ground 1, it cannot succeed.
However there is a complaint about how the Member used Dr Harrington’s opinion. To the extent that the Member relied on Dr Harrington’s opinion with respect to incapacity post 30 August 2022, the appellant challenges whether there was a ‘fair climate’ for Dr Harrington’s opinion to be relied on. The expression ‘fair climate’ is of course a reference to the seminal decision of Paric v John Holland Constructions Pty Ltd[51] and in the High Court.[52]
[51] [1984] 2 NSWLR 505, (Paric), [509]–[510].
[52] Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844, 846.
In Paric, Samuels JA said the following:
“Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition [of Wigmore on Evidence] (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
In this case the one fact the appellant alleges that Dr Harrington was not possessed of was that after having her spinal injection in late August 2022, the respondent reported as being pain free. This, the appellant says, means that the opinion no longer is given in a ‘fair climate’.
This submission neglects to refer to the respondent’s own statement, which I have set out above, which describes that the back pain returned the day after the injection, having experienced a brief respite. No issue was taken with that evidence. Therefore the one fact said to have destroyed the ‘fair climate’ in which Dr Harrington’s opinion could be deployed is not a fact in any conclusive sense. The ‘fact’ was a sensation experienced by the respondent for a short time after the injection of being pain free, before her condition reverted to its prior state. I do not accept that by being unaware of this fact, the doctor’s opinion was no longer worthy of being given such weight as the Member considered was necessary. As Samuels JA said, some “[d]iscrepancies may be fatal” but “in other cases even broad departures are not likely to affect the force of the expert opinion.” Here the “discrepancy” relied upon by the appellant was merely a transitory feeling of relief from pain. When the evidence is viewed in its entirety, the complaint about the doctor’s opinion not being given in a ‘fair climate’ is not made out.
Ground 2 is dismissed.
DECISION
The Certificate of Determination dated 29 June 2023 is confirmed.
There is one matter that I raise for the parties’ consideration. The claim was for compensation between 19 July 2022 and 17 January 2023, yet the Member made an award up to 3 January 2023. Reading the decision it is not obvious why this is the case and no submission has been made on appeal about this apparent discrepancy. I would request that the parties examine this issue and given that I am confirming the Certificate of Determination, if this is in fact an error, it can be re-considered by the Member.
Judge Phillips
PRESIDENT
14 May 2024
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