Toll Transport Pty Ltd v Smith - [2021] NSWWCCPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Toll Transport Pty Ltd v Smith [2021] NSWWCCPD 7
APPELLANT:	Toll Transport Pty Ltd
RESPONDENT:	David Smith
INSURER:	Toll Holdings Limited
FILE NUMBER:	A1-3886/20
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	23 September 2020
DATE OF APPEAL DECISION:	5 February 2021
SUBJECT MATTER OF DECISION:	Whether the incapacity for work resulted from the pleaded injury – Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 considered; alleged error of fact – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Pinder, solicitor
Minter Ellison
Respondent:
Ms E Grotte, counsel
Gerard Malouf & Partners
ORDERS MADE ON APPEAL:	1. The name of the appellant (the respondent below), wherever it appears in these proceedings and in the proceedings below, is amended to read “Toll Transport Pty Ltd.” 2. The Certificate of Determination dated 23 September 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Mr David Smith (the respondent) was employed by Toll Transport Pty Ltd (the appellant) as a driver. The respondent suffered a number of injuries both prior to and in the course of his employment with the respondent. Relevantly, the respondent was injured in a motor vehicle accident on 5 April 2019, in which he claimed injury to his neck, left shoulder, left thumb and low back. The appellant accepted liability for the injuries.
The respondent had no capacity for work for a period of time and was then certified as fit for work on suitable duties. At times, suitable duties were not made available. The respondent was then certified fit for pre-injury duties on a work trial from 17 July 2019. The respondent commenced those duties and, on 19 July 2019, suffered significant neck and left shoulder pain while attempting to tighten a ratchet on the chain around a load. The respondent was again certified as having no capacity for work.
The respondent returned to work on 15 August 2019 after having requested a return to truck driving duties and providing a certificate indicating that he was fit for pre-injury duties. The appellant provided the respondent with administrative/office duties as a precautionary measure. On 2 September 2019 (which was a Monday), the respondent reported that he was unable to work because of significant neck and shoulder pain which was associated with migraine headaches. The respondent did not cite a particular precipitating event, but it appears that the onset occurred when the respondent was reaching out to his grandchild.
The respondent was again put off work and his employment was terminated in October 2019. The appellant disputed liability from 9 November 2019, asserting that, by the time of the incident on 19 July 2019, the respondent had recovered from the effects of the injury on 5 April 2019 and any symptoms from which the respondent suffered were not referrable to the accepted injury.
The respondent brought proceedings in the Commission in respect of the injury on 5 April 2019 (the pleaded injury), seeking weekly payments of compensation from 9 November 2019 and treatment expenses. The matter was unable to be resolved and proceeded to arbitration on 21 September 2020. Arbitrator Sweeney delivered an oral decision on 22 September 2020, in which he found in favour of the respondent (the applicant in those proceedings) and awarded the respondent (applicant) ongoing weekly payments and treatment expenses. The Certificate of Determination encapsulating the orders made was issued on 23 September 2020.
The appellant appeals the decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers.’

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.

A PRELIMINARY MATTER

In the documents lodged with the Commission, the name of the appellant (the respondent in the proceedings below) was variously described as:
(a)    Toll Global Logistics, Industrials Port Kembla;
(b)    Toll Global Logistics, and
(c)    Toll Holdings Limited.
A Direction was issued by a delegate of the Registrar on 26 November 2020, directing the parties to advise of the correct name of the legal entity of the appellant.
On 3 December 2020, the appellant advised that it was instructed that the correct name of the appellant was “Toll Transport Pty Ltd,” of which Toll Logistics was a business division. The appellant advised that “Toll Holdings Pty Ltd” was the name of the self-insurer of the appellant.
The appellant sought to have the name of the appellant (the respondent below) amended to “Toll Transport Pty Ltd.” The respondent consented to the amendment. Accordingly, the name of the appellant (the respondent below), wherever it appears in these proceedings and in the proceedings below, is amended to read “Toll Transport Pty Ltd.”

THE EVIDENCE

The respondent’s statements

The respondent provided a statement dated 20 May 2019.[1] He gave details of his employment with numerous employers as a truck driver prior to commencing employment with the appellant in January 2015. The respondent said that prior to commencement with the appellant, he was fit and healthy and passed a medical examination in which he was certified as fit to perform the work required of him by the appellant. The respondent said that his hours of work with the appellant varied between 8 to 12 hours per day and he worked up to six days per week. He said he always accepted any overtime that was offered. He reported to Mr Stephen Smith, the Logistics Manager, and Mr John Owen, the Senior Manager.
[1] Application to Resolve a Dispute (ARD), pp 213–222.
The respondent stated that he mainly drove a prime mover pick up and delivered loads to various places. He said he also conveyed steel in large trucks called “tugs” within the boundaries of the depot. The respondent said that part of his duties required him to secure about 5 chains per load that weighed about 25 kilograms and he carried out about 4 loads per day. He added that occasionally he would drive a forklift.
The respondent described prior injuries in the course of his previous employment, including a lower back injury in 2011, following which he was off work for about one week, and a “whiplash” injury to his neck in 2014 when a tarpaulin rope snapped causing him to be off work for two days.
The respondent referred to an injury with the appellant on 10 July 2015. He said he was operating a ratchet to secure a load when the equipment either slipped or missed a link. He was thrown backwards and jolted, injuring his right arm and shoulder. He had a period off work and during that period, Dr Mark Haber, orthopaedic surgeon, performed surgery on his right shoulder. He returned to suitable duties and was certified fit for full duties in May 2016, which he was able to manage despite some continuing symptoms in that shoulder.
The respondent described being involved in a motor vehicle accident while being driven home from work by a co-worker on 9 September 2016, in which he hit his head and suffered a “whiplash” injury to his neck and a further injury to his right arm. The respondent indicated that the following day he experienced a very sore neck and right shoulder, but not in the same area as the pain he had experienced previously. He did not consult a doctor until December 2016 and an x-ray of the cervical spine did not show any abnormality. He said the pain settled and he was able to perform his usual duties at work.
The respondent described other minor injuries at work which are not relevant to this appeal. He then stated that his most recent injury occurred on 5 April 2019, when he was driving a “tug,” carrying red-hot steel. He said that the truck, together with the tug, weighed about 125 tonnes. He said he was driving the tug before dawn and in minimal lighting along a road which had a dirt surface. Parts of the road were under water because of recent heavy rain. The respondent said that he hit two large potholes, which caused a large jolt. He said he felt a little pain in the neck but when he drove a further 10 metres to where the steel was to be unloaded, he experienced pain similar to an electric shock shooting up his left arm and into his neck. The respondent advised that the pain travelled from the back of his skull through to his back and he had pins and needles on his face and torso, as well as both shoulders.
The respondent reported that paramedics were called to the scene and his neck was placed in a hard collar. He was taken to Wollongong Hospital where x-rays were performed. The respondent said he was discharged nine hours later by which time he was experiencing severe headaches and mostly pain around the neck region. On Monday 8 April 2019, the respondent attended Dr Carmel Mason, general practitioner, who was not aware of his previous history of injuries. The respondent said he was able to subsequently consult his usual general practitioner of the same practice, Dr Benjamin. Dr Benjamin certified him as being unfit for work and referred him to Nowra Physiotherapy, where he was treated by Mr Lachlan Chisholm, physiotherapist.
The respondent described his injuries as a “whiplash” injury to both sides of his neck, injury to the back, radiating left leg pain and severe pain in his left thumb caused by wrenching of the thumb on the steering wheel when he hit the potholes. He was certified as unfit for work.
The respondent provided a supplementary statement dated 9 April 2020.[2] The respondent disputed various assertions made by the appellant in relation to the speed he had been travelling when the pleaded injury occurred, as well as the respondent’s knowledge of the presence of potholes in the road. He referred to his prior injuries, and stated that towards the end of 2017 or the beginning of 2018, he had completely recovered from the injuries sustained in the earlier motor vehicle accident and his general practitioner had certified him as fit to return to full duties. He performed those duties without restriction for over a year. The respondent said that he was working 12–14 hours per day and on some occasions six days per week, during which time he had absolutely no problems with his neck, left shoulder or thumb.
[2] ARD, pp 223–230.
The respondent described the treatment he received following the pleaded injury. He reported pain similar to an “electric shock” and felt severe pain in his left shoulder and thumb. He said his symptoms deteriorated following cessation of treatment after the appellant declined liability for ongoing compensation.
The respondent reported that he suffered a further aggravation of his injuries on 19 July 2019. He said he had just received a clearance to return to pre-injury duties and was using his right hand to throw six chains over a load. While using a ratchet to tie the load, he felt a “popping” sensation between his left shoulder and his neck, travelling into his neck and jaw. He said the symptoms were similar to those sustained in the pleaded injury, and his general practitioner downgraded his duties to lighter work, working 15 hours per week. Those duties required him to collect the mail in the morning and otherwise sit in the television room and watch the television, which he did for a few months. The respondent said that he would have to move around every five to ten minutes because of severe cramping and pain in his neck and left shoulder. He said he asked for other duties but was told there were none and in about September or October 2019 he was sent home because there was no work to do.
The respondent said that, although he was certified fit to work 15 hours per week by his general practitioner, he found it difficult to work in any environment because he was not receiving treatment. The respondent asserted that he had no office, administrative or computer skills, or experience in sales work, and could not work in areas in which he was experienced, or in process work, because of his physical limitations. He considered he could perform light courier work or taxi driving for 15 hours per week without lifting heavy items such as luggage. The respondent felt that there was no suitable work in the open labour market that he could perform.
The respondent described significant ongoing pain and limitations in the neck, left shoulder and left thumb. He said he was keen to return to the workforce as soon as possible.

The general practitioners’ evidence

Dr Timothy Benjamin, the respondent’s treating general practitioner, provided a report directed to the respondent’s legal representatives dated 2 December 2019.[3] Dr Benjamin noted that, following the injury involving the respondent driving the tug over potholes in the road, the respondent had initially been seen at the practice by Dr Carmel Mason, general practitioner. Dr Benjamin advised that the respondent had previously been seen in the practice, having last attended on 8 October 2018. Dr Benjamin said that the respondent had not consulted the practice in respect of neck, back, left thumb, left wrist or left shoulder pain before the pleaded injury, although there had been a neck x-ray on 27 February 2017 and a lumbar x-ray on 29 June 2011.
[3] ARD, p 13.
Dr Benjamin reported that the respondent was certified fit for suitable duties, four hours per day, two days per week from 1 June 2019, increasing to five hours per day, three days per week from 18 June 2019. Dr Benjamin noted that no suitable duties were available, and the respondent was eventually certified fit for pre-injury duties from 13 July 2019, with restrictions recommended which were recorded on a certificate of capacity. Dr Benjamin advised that on 19 July 2019, the respondent re-injured the shoulder and neck area and was subsequently certified fit to work five hours per day, three days per week, with restrictions. Dr Benjamin added that, without appropriate treatment, the respondent would be unlikely to return to full duties. Dr Benjamin reiterated that opinion in a hand-written response directed to the appellant dated 19 June 2020.[4]
[4] ARD, pp 15–17.
Dr Benjamin’s clinical records were also in evidence.[5] On 8 April 2019, the respondent consulted Dr Mason of the same practice, who recorded a consistent history of the injury occurring three days prior to the consultation and the subsequent complaints of severe pain in the neck, with pain in the left shoulder. Dr Mason examined the respondent, discussed a return to work on suitable duties and issued a certificate of capacity.
[5] ARD, pp 18–90.
Dr Benjamin recorded the next consultation on 12 April 2019. Dr Benjamin noted pain in the respondent’s back, neck stiffness and muscular pain in both shoulders. The respondent continued to consult Dr Benjamin and, on 31 May 2019, Dr Benjamin recorded that the respondent felt he was improving and was ready to upgrade to suitable duties. On 14 June 2019, Dr Benjamin noted that the appellant had not provided suitable duties and the respondent was remaining at home. He was doing physiotherapy exercises and had ongoing left thumb and wrist pain, pain in the left buttock and a stiff neck. Over the following consultations, Dr Benjamin noted some improvement in the respondent’s symptoms and on 12 July 2019, the respondent advised him that he was prepared to trial a return to pre-injury duties.
On 25 July 2019, Dr Benjamin noted:
“Was feeling confident to get back to full duties
Had a work place assessment by the OT
On the 19/07/19
while trying to tighten the ratchet felt a sharp pain in his left shoulder and neck area.
Could not continue the work, saw another doctor in Wollongong for WCC”.[6]
[6] ARD, p 22.
Dr Vincent Au, general practitioner from the same practice, noted that on 15 August 2019, the respondent was again ready to go back to pre-injury duties. The same doctor noted on 2 September 2019 that the respondent had been back at work for two weeks and his neck pain had been worse over the past few days doing duties that Dr Au considered would likely exacerbate the neck pain. Dr Au reduced the hours the respondent was able to work.
Dr Benjamin saw the respondent again on 12 September 2019, noting the respondent was performing office duties and had suffered an exacerbation of pain ten days earlier. The respondent continued to consult Dr Benjamin, complaining of ongoing symptoms. Dr Benjamin referred him to Dr Haber for specialist review of his shoulder and neck pain. On 22 November 2019, Dr Benjamin noted that the respondent continued to complain of shoulder pain, which showed little improvement after a cortisone injection. He also noted that the appellant had denied liability for ongoing treatment.
Dr Benjamin provided certificates of capacity from 31 May 2019 to 28 June 2019, indicating that the respondent had some capacity to work and set out the restrictions.[7] On 12 July 2019, Dr Benjamin issued a certificate stating that the respondent “is fit for pre-injury work … trialling pre-injury duties”.[8] Dr Benjamin recorded in that certificate that the factors preventing recovery were neck stiffness and sciatic like pain down the left leg.
[7] Reply to Application to Resolve A Dispute (reply), pp 50–52 and 56–57.
[8] Reply, pp 99–101.
On 15 August 2019, Dr Au issued a certificate indicating that the respondent was fit for pre-injury duties.[9]
[9] Reply, pp 134–137.
Dr Benjamin also provided a number of certificates of capacity covering the period from 10 October 2019 to 5 June 2020, in which the respondent was certified as having capacity to work five hours per day, three days per week with restrictions. In each certificate, Dr Benjamin commented that there had been an exacerbation of the respondent’s previous injury to the left shoulder and neck on 19 July 2019 when trying to tighten a rachet. Dr Benjamin nominated the date of the injury as 5 April 2019. He advised that the respondent was suffering from neck stiffness and shoulder pain.[10]
[10] ARD, pp 182–212.

The Nowra Physio Sports and Rehabilitation records

The records compiled by Mr Lachlan Chisholm, physiotherapist, were in evidence and confirmed that the respondent consulted that practice from 23 April 2019.[11] Unfortunately, the entries in the notes did not record the dates of attendance and are therefore of little assistance, although the contents of those notes appear to reflect the history and observations recorded by Mr Chisholm in reports directed to Dr Benjamin.
[11] ARD, pp 92–124.
A number of reports by Mr Chisholm directed to Dr Benjamin were included with those documents. On 30 April 2019, Mr Chisholm confirmed that the respondent initially presented on 23 April 2019 in relation to a “whiplash” injury to the cervical spine and lower back. Mr Chisholm considered that the lower back symptoms were discal in nature with referred leg pain and he opined that the respondent was not fit for work.[12] In a report dated 2 May 2019, Mr Chisholm reported to Dr Benjamin in relation to the respondent’s left thumb and wrist, advising that he had placed the left thumb in a brace. Mr Chisholm also reported that the respondent’s neck was steadily improving but that the lower back symptoms were responding more slowly to treatment. Mr Chisholm again considered that the respondent was not fit for work.[13]
[12] ARD, p 96.
[13] ARD, p 99.

On 23 May 2019, Mr Chisholm wrote:
“I have been treating David Smith for work related discy back injury, grade 2 whiplash and L thumb ligament injury now for several weeks. David's neck injury is progressing well and he has restored most of his ROM but still has pain the last 20 degrees of rotation and dysfunctional movement patterns. His thumb is still in a brace in the protection phase but has a significant decrease in grip strength and pain levels … His lower back injury is progressing, however slowly it is still following a discy pattern with significant pain and spasm in the glutes and responding well to movement but is aggravated by sustained positions and manual therapy so our approach to treating this is with exercises and movement.”[14]
[14] ARD, p 103.
Mr Chisholm opined that the respondent was ready for “light duties” for four hours per day, two days per week and listed the required restrictions, which included no repetitive or sustained neck movements.
In a further report dated 27 June 2019, Mr Chisholm reported that the respondent’s neck injury was progressing well but had plateaued with continuing restriction and dysfunction of movement. The respondent’s lower back was progressing slowly but was being aggravated by sustained positions and manual therapy. The left thumb was still in a brace.[15] Mr Chisholm recommended an upgrade in suitable duties to four or five hours per day, three to four days per week, with restrictions,
[15] ARD, p 112.
Mr Chisholm again reported to Dr Benjamin on 8 July 2019. Mr Chisholm advised that:
(a)    the injury to the neck had initially progressed well but had plateaued, with some dysfunction on movement and residual restriction of rotation;
(b)    the brace on the left thumb had been removed, but there was some continuing pain;
(c)    the lower back injury was progressing well, and
(d)    he considered that the respondent was ready to upgrade to suitable duties for four to five hours per day, three to four days per week, with restrictions including only occasional repetitive or sustained neck movements.[16]
[16] ARD, p 116.
Mr Chisholm next reported to Dr Benjamin on 1 August 2019. In that report Mr Chisholm noted that the respondent’s neck injury had settled “since his aggravation at work” but the respondent was still suffering with pain and had the same degree of limitation on rotation and dysfunctional movement as reported in his previous report. He observed that the lower back injury had resolved, but the respondent continued to have issues with the left thumb.[17]
[17] ARD, p 119.
The last report of the respondent’s progress was dated 12 August 2019. Mr Chisholm informed Dr Benjamin that:
“[The respondent’s] arm and neck has settled well since his aggravation on light duties. He has progressed well with his exercise and activity program in regards to all three injuries.
In clinic today, I put [the respondent] through a mini functional assessment in regards to his injuries, he passed with minimal difficulties. I feel he is ready to return to his pre-injury duties.
[The respondent’s] neck injury has settled but still has some pain at EROM rotation and minor dysfunctional movement patterns but he is improving with a conscious effort. We are continuing to work to correct this with exercises for motor pattern, strength and ROM.
[The respondent’s] thumb has also settled well his grip has returned to L 46.3kg R 46.6kg and reports only slight p [sic] on very forceful gripping. [The respondent] will continue with his strength and mobility exercises.
His back has returned to pre-injury levels, however, he is still continuing with his exercises program.
Assuming all goes well, I would like to review [the respondent] 2-3 more times on his return to full duties to ensure no flare-ups and keep him on track with his exercise program, then discharge him to ongoing self-management.”[18]
[18] ARD, p 123.

Dr Andrew Porteous, occupational physician

Dr Andrew Porteous was asked to examine the respondent and provide a medico-legal opinion in respect of these proceedings. Dr Porteous provided his opinion in a report dated 5 February 2020.[19] Dr Porteous recorded the history of the incident on 5 April 2019, when he reached to disconnect the trailer from the vehicle, following which the respondent noticed the onset of pain in the left arm, shooting suddenly from the left hand to the left neck and scalp. The pain was associated with a headache, and the respondent also experienced pain in the left thumb. Dr Porteous noted that the respondent complained of, not only neck, left shoulder and arm pain, but also an onset of lower back pain when he awoke on the Sunday morning, which was two days after the incident.
[19] ARD, pp 1–12.
Dr Porteous further noted that the respondent was off work for three weeks and then returned to work on restricted duties, then felt that he was able to return to normal duties on 17 July 2019. Dr Porteous observed that on 19 July 2019 the respondent was required to secure a load by throwing five heavy chains over it and, when tightening the fourth chain, experienced significantly increased pain in the left shoulder and could not move his neck. Dr Porteous said that the respondent was then off work for a further three weeks and then returned to work five hours per day five days per week. Dr Porteous recorded that the respondent was performing office work that involved prolonged sitting which increased his low back and left leg pain, so his duties were reduced to three days per week until he was made redundant on 28 October 2019.
Dr Porteous noted that, at the time of the consultation, the respondent was suffering from chronic neck and left shoulder pain, shooting down the left arm and into the thumb, with moderate aching of the left thumb. He also suffered from chronic lumbar and left buttock pain. Dr Porteous described the difficulties experienced by the respondent with everyday activities. He also noted the numerous injuries the respondent had suffered prior to April 2019 and the respondent’s assertion that he had fully recovered from those injuries, so that he was able to perform full duties at work until the pleaded injury on 5 April 2019.
Dr Porteous performed an examination of the respondent, noting extensively reduced range of motion in the left shoulder, the cause of which he could not explain without further investigation. He formed the view that the respondent had suffered an aggravation of degenerative changes in the cervical spine, lumbar spine and in the base of the left thumb. Dr Porteous confirmed that the respondent reported left shoulder pain since the pleaded injury and he diagnosed a mild soft tissue shoulder strain. Dr Porteous opined that there was a consistent history of the onset of symptoms in the cervical spine, left shoulder, left thumb and lumbar spine as a result of the pleaded injury. Dr Porteous noted that five months earlier, Dr Anthony Smith, orthopaedic surgeon, found normal range of movement in the left shoulder, which was in contrast with Dr Porteous’ findings of substantially reduced range of movement. Dr Porteous considered that further investigations were required in order to establish whether the reduced range of movement was due to the pleaded injury.
Dr Porteous confirmed his opinion that, in the incident on 5 April 2019, the respondent had suffered an aggravation of degenerative changes in the cervical spine, lumbar spine and in the base of the left thumb and there was no evidence that the aggravation had ceased. He considered that, because of the cervical spine, lumbar spine and left thumb injuries, the respondent was not fit for work requiring static positions, heavy lifting, pushing, pulling or carrying. He was also not fit for use of the left arm above shoulder height because of the shoulder strain injury which occurred in the incident on 5 April 2019. Dr Porteous felt, however, that the respondent had some capacity for work as a truck driver in selected duties and at a reduced level but considered that he would have difficulty in securing work.
Dr Porteous commented that, although Dr Smith was of the view that the injuries had resolved, he was of the opinion that the aggravation had never stopped since the pleaded injury. He said the aggravation had clearly not resolved. Dr Porteous proceeded to assess the respondent’s whole person impairment.

Dr Anthony Smith, orthopaedic surgeon

The appellant arranged for the respondent to be medically examined by Dr Anthony Smith. Dr Smith provided a report dated 5 September 2019.[20] He took a history of the pleaded injury, noting that the respondent suffered pain in the neck, shoulders, shoulder blades, low back and jaw pain with pins and needles “all over”. Dr Smith recorded that just less than a month previously, the respondent returned to work on “light duties” using a computer for eight hours each day. His duties were then reduced to five hours per day because of neck and left shoulder pain. Dr Smith noted that there was still discomfort around the base of the left thumb but that the respondent’s lower back was no longer a problem, except for occasional buttock pain. Dr Smith referred to various prior injuries, including the neck injury in the motor vehicle accident in 2014, following which the respondent had no time off work.
[20] Reply, pp 455–461.
Dr Smith took the history that the respondent was certified fit to work by his general practitioner a little over three weeks previously but was not fit for truck driving.
Dr Smith reviewed the radiological evidence of the cervical spine, left wrist and left thumb. He performed an examination of the respondent and found:
(a)    neck movements were reduced to 80% of normal range and rotation to the left was weaker than the right;
(b)    both shoulders had no loss of range or rhythm;
(c)    there was global power loss of movement in both upper limbs, left worse than right;
(d)    there was a reduction of range of movement of both thumbs;
(e)    extension, flexion and rotation of the lumbar spine was unremarkable, and
(f)    there was no lower leg deficit.
Dr Smith diagnosed spinal degenerative disease as well as bilateral thumb base arthritis and said that the respondent was likely to have a number of other co-morbid conditions. He considered that the respondent could have easily exacerbated the cervical and spinal degenerative disease in the incident on 5 April 2019 and also aggravated the left thumb base osteoarthritis. Dr Smith was of the opinion that, on the basis of the examination that day, the respondent had recovered from the aggravations. He remarked that the respondent’s presentation was inconsistent with any organic illness which could support the pattern of weakness the respondent exhibited.
In conclusion, Dr Smith expressed the view that the respondent had recovered from his injuries and would be as fit for his usual occupation as he was in March 2019.

Mr Steve Williams, Master of Work Health and Safety

Mr Williams was asked to provide a report to the respondent’s legal representatives in relation to any potential occupational liability for the respondent’s pleaded injury and the exacerbation on 19 July 2019. In his report dated 4 July 2020,[21] Mr Williams expressed the view that the work allocated to the respondent just two days after his return to full duties in July 2019 was inconsistent with occupational standards for managing musculoskeletal disorders.[22]
[21] ARD, pp 151–181.
[22] ARD, p 156.

Dr Andrew McIntosh, biomechanics and ergonomics expert

Dr McIntosh was asked by the appellant to provide an expert report in relation to the mechanism of the pleaded injury. He provided a report dated 5 August 2020.[23] After assessing the evidence in detail, Dr McIntosh provided his opinion that, in the circumstances of the incident in question, the jarring mechanism was unlikely to have caused an intervertebral disc injury to a healthy spine because the truck was travelling at a low speed. He further opined that the injuries suffered by the respondent could be attributed to the incident as an aggravation of the respondent’s pre-existing musculoskeletal condition, where the pre-existing condition was unrelated to the incident.
[23] Reply, pp 307–343.
Dr McIntosh noted that the respondent was deemed fit for full duties in July 2019, which he considered was consistent with his knowledge of recovery times from “whiplash” type motor vehicle accidents, where there are similar cervical and lumbar disorders. He concluded that the injuries suffered by the respondent resolved within three to four months. Dr McIntosh indicated that he disagreed with the opinion of Mr Williams.

Other relevant documentation

On 19 July 2019, the respondent completed an Incident Report Form, referring to neck pain occurring that morning. The respondent wrote:
“previous injury preventing me from securing load of plate … neck pinching pain … not being able to pull myself into truck without major discomfort …”.[24]
[24] Reply, p 108.
On 19 July 2019, Ms Tina Chandra, Injury Management Advisor to the appellant, wrote to Dr Maria Salinas, general practitioner at Sonic Health Plus, advising that the respondent had commenced a trial of his pre-injury duties on 17 July 2019 and had experienced a “flare up” of his neck and shoulder injury on the morning of 19 July 2019. Ms Chandra requested a medical examination of the respondent.[25]
[25] Reply, p 113.
Mr Stephen Smith wrote to Ms Chandra and Ms Margaret Layt (the respondent’s Case Manager) on 21 August 2019, advising that he had told the respondent that, although his doctor had issued a certificate indicating that he was fit for pre-injury duties, the appellant was focussed on the respondent’s welfare by not re-aggravating the respondent’s injury. He told the respondent that he would remain on suitable duties until at least 5 September 2019, when a functional assessment would be undertaken.
On 2 September 2019, Mr Smith again wrote to Ms Chandra and Ms Layt, informing them that the respondent had sent a text message indicating that he was unable to work due to neck stiffness and associated migraines. Mr Smith commented that “Luckily the BU made a decision not to let [the respondent] trial any PID and has not done any physical work.”[26] Ms Chandra responded, indicating that she had spoken with the respondent, who advised her that there was no precipitating event in the past seven days which would explain the symptoms.[27] On 2 September 2019, Dr Au downgraded the respondent’s capacity to five hours per day, five days per week.[28]
[26] ARD, p 139.
[27] Reply, p 141.
[28] Reply, p 142.

THE ARBITRATOR’S REASONS

The Arbitrator delivered oral reasons for his decision on 22 September 2019.[29] The Arbitrator noted that the respondent was a truck driver who was employed by the appellant to drive heavy vehicles, which was arduous work and required the respondent to secure loads with chains, involving at least moderate physical exertion. The Arbitrator described the incident on 5 April 2019 and noted the respondent’s account that he felt a huge jolt and was thrown around. The Arbitrator said that the injuries suffered by the respondent were accepted by the appellant, however, the appellant disputed that the respondent continued to suffer from the effects of the injury after 7 November 2019. He observed that the denial of liability was predominantly based on the opinion of Dr Smith. The Arbitrator referred to the passage from Dr Smith’s report in which Dr Smith accepted that the respondent’s disease conditions would have been aggravated in the incident, but that Dr Smith considered that the respondent had recovered from those aggravations. The Arbitrator commented that Dr Smith also doubted the reliability of the respondent’s ongoing complaints and considered that the respondent was fit to engage in his usual occupation as a truck driver.
[29] Transcript of reasons, 22 September 2019 (T), Smith v Toll Transport Pty Ltd (3886/20, 23 September 2020).
The Arbitrator observed that the appellant also relied on other evidence in its submissions at arbitration, which included:
(a) the opinion of Dr McIntosh, who expressed the same view as Dr Smith, and
(b) the respondent’s treating practitioners’ clinical records, which were said to show that the respondent’s symptoms no longer related to the pleaded injury but were referrable to later events.
The Arbitrator summarised the appellant’s submissions that:
(a)    after the period of treatment for the pleaded injury, the respondent was certified fit for pre-injury duties;
(b)    the respondent suffered the further injury to the neck and left shoulder when tightening the ratchet, which rendered him unfit for work and required further treatment, and
(c)    following a substantial recovery, the respondent suffered a further injury at home in September 2019 when reaching out to his grandchild, which caused an increase of pain in his left shoulder and neck.
The Arbitrator observed that, following the September incident, the respondent was referred to Dr Haber for specialist review. He proceeded to summarise the respondent’s submissions, which were that, after the pleaded injury, the respondent was never symptom free in the back, neck or left shoulder, and that the Court of Appeal decision in Secretary, New South WalesDepartment of Education v Johnson,[30] which dealt with supervening injuries, applied in this case.
[30] [2019] NSWCA 321.
The Arbitrator reviewed the factual history, noting the injuries prior to the pleaded injury and the events thereafter, as well as the various certifications in respect of the respondent’s incapacity. He noted that the respondent’s evidence was that his symptoms in the neck, back and left shoulder persisted ever since the pleaded incident. The Arbitrator observed that the reliability of the respondent’s evidence was critical to the determination of whether the effects of the injury continued in the context of Dr Smith’s view about the respondent’s significant pain behaviour. The Arbitrator reasoned that he would be reluctant to make an adverse finding as to the reliability of the respondent’s evidence if it were solely based on the opinion of a medical practitioner who had examined the respondent on one occasion only. The Arbitrator remarked that the appellant did not directly attack the reliability of the respondent’s evidence, but argued that there were factual matters that Dr Benjamin and Dr Porteous failed to take into account.
The Arbitrator said that it could readily be inferred that both Dr Porteous and Dr Benjamin were of the view that the respondent’s neck and back symptoms continued at various degrees since the time of the pleaded injury. The Arbitrator was of the view that Dr Porteous clearly understood that to be the case and had access to the full account of the medical history recorded by Dr Benjamin. The Arbitrator concluded that the appellant’s criticism of the history recorded by Dr Porteous was not borne out. The Arbitrator noted that Dr Benjamin recorded the history of both subsequent incidents relied upon by the appellant in defence of the case. Dr Benjamin referred to the shoulder and neck symptoms precipitated by the July 2019 incident in the letter of referral to Dr Haber. The Arbitrator said that he was satisfied that both Dr Benjamin and Dr Porteous had a reasonable history, with the exception of the history of the left shoulder condition.
The Arbitrator concluded that, on the whole of the evidence, he accepted that the respondent continued to suffer from the injuries to the respondent’s back and neck sustained in the incident on 5 April 2019. He reasoned that it had not been established that the pleaded injury had no role to play in the subsequent incidents in July and September 2019 and those incidents did not constitute a novus actus interveniens in circumstances where the symptoms in the back and neck persisted to some degree since the time of the pleaded incident.
The Arbitrator considered that the exception in relation to the left shoulder was that it was not as clear that the left shoulder symptoms related to the pleaded injury. The Arbitrator referred to the evidence of Dr Porteous, in which Dr Porteous observed that on 8 April 2019, Dr Mason, at the same practice as Dr Benjamin, recorded a very good range of movement of the left shoulder. He noted that Dr Porteous also referred to subsequent consultations, usually with Dr Benjamin, where it was recorded that the respondent had a very good range of movement in the left shoulder.

The Arbitrator observed that, since the incident in July 2019, the respondent’s shoulder had deteriorated significantly and there was a degree of inconsistency on examination in later consultations. The Arbitrator compared the findings on examination recorded by Dr Smith and those recorded by Dr Porteous. The Arbitrator formed the view that it was not evident to him that the respondent’s current symptoms in the left shoulder (shoulder pain) related to the pleaded injury. The Arbitrator said that the earlier examination conducted by the general practitioners suggested that the symptoms were better explained as referred pain from the respondent’s neck, although it was possible that the respondent had developed a “frozen” shoulder. Noting that the respondent had been referred to a shoulder surgeon, who he was yet to see, the Arbitrator elected not to make a finding in relation to the nature of the injury to the shoulder which occurred in the pleaded injury. The Arbitrator proposed to discount the restriction of movement in the left shoulder in his consideration of the respondent’s capacity for work.
The Arbitrator reiterated that, on the basis of the evidence before him, the respondent suffered an injury by way of an aggravation of a pre-existing asymptomatic condition of the cervical spine, lumbar spine, back, neck and right [sic, left] thumb.
The Arbitrator proceeded to determine the question of the respondent’s capacity for work. He noted that there was a consensus on the medical evidence that the respondent was fit for some work but that the respondent asserted that on the basis of his symptoms and limited training, he effectively had no capacity for work. The Arbitrator observed that the current legislation provides that, in a claim for weekly compensation, if there was no real job the respondent was able to perform, he was considered to have no current capacity for work. He noted that Dr Benjamin had certified that the respondent was fit to work five hours per day, three days per week. He further noted that Dr Porteous was of the opinion that the respondent could potentially work longer hours but that the respondent would be disadvantaged in the marketplace and was unlikely to find suitable work. The Arbitrator considered that Dr Smith, who held the view that there were no restrictions on the respondent’s employability, was the “odd man out.” The Arbitrator said that the evidence of the treating general practitioner was always important. He thought that, in the light of the respondent’s previous attempts to return to work, the respondent’s neck, back and thumb symptoms would pose a real difficulty for the respondent to perform full time work. He said, however, that after discounting the left shoulder restrictions (as he was required to do), in his view the respondent could probably work for longer periods than those certified by Dr Benjamin and that this view was more consistent with the opinion of Dr Porteous.
The Arbitrator concluded that it was likely that the respondent could perform a real job such as courier work, driving an Uber, or light process work on a part-time basis, of between 22 and 25 hours per week. He acknowledged that those jobs would pay far less than the respondent’s pre-injury earnings, which included his overtime rates. The Arbitrator concluded that the respondent would be able to earn $500 per week, which was more than he would have found if the respondent had been able to establish that the left shoulder restrictions resulted from the pleaded injury.
The Arbitrator noted that the parties had agreed that 80% of the respondent’s pre-injury average weekly earnings was $1,388.12, which entitled the respondent to an award of weekly payments pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $888.12 per week. The Arbitrator indicated that he would make the necessary orders in a Certificate of Determination, which he issued on 23 September 2019.
The Certificate of Determination issued on 23 September 2019 records:
“The determination of the Commission in this matter is as follows:
1.     The applicant suffered injury arising out of and in the course of his employment on 5 April 2019 to his cervical spine, lower back, left thumb, and symptoms in his left shoulder.
2.     As a result of these injuries the applicant was totally or partially incapacitated for work until 8 November 2019 and paid wages or compensation.
3. From 9 November 2019 the applicant has been incapacitated for his pre-injury duties by reason of injury to the cervical spine and low back but had a current work capacity as that phrase is used in section 37 of the 1987 Act.
4.     It is agreed between the parties that the applicant’s PIAWE is $1735.14 and that 80% of that figure is $1388.12
5.     In suitable employment as that phrase is used in section 32A of the 1987 Act the worker has been capable of earning the sum of $500 per week.
6. Award for the applicant pursuant to section 37 at the rate of $888.12 per week from 9 November 2019 to date and continuing until same is suspended or terminated in accordance with the provisions of the 1987 Act.”

GROUNDS OF APPEAL

The appellant alleges the Arbitrator erred on the following grounds:
(a)    in finding that as a result of the injuries to the respondent’s cervical spine, lower back, left thumb and the symptoms in the left shoulder, the respondent was totally or partially incapacitated for work until 8 November 2019 (Ground One);
(b)    in finding that from 9 November 2019 the respondent was incapacitated for his pre-injury duties by reason of injury to the cervical spine and lower back (Ground Two);
(c) in entering an award in favour of the respondent pursuant to s 37 of the 1987 Act from 9 November 2019 to date and continuing (Ground Three);
(d)    in his fact-finding process, including the facts found which underpinned his orders (Ground Four);
(e)    by failing to provide sufficient reasons (Ground Five), and

(f) by finding that the opinion of Dr Porteous was of sufficient weight to support the respondent’s case of incapacity (Ground Six).

SUBMISSIONS

The appellant’s submissions

The appellant, contrary to the requirements of the Commission’s Practice Direction No 6, does not address each ground of appeal separately but instead submits on the first four grounds together. This approach is not satisfactory and can result in the appeal being rejected for non-compliance. As a consequence of the appellant’s approach, the respondent also made combined submissions in respect of all four grounds. For convenience, I have summarised the submissions made by both parties on the same basis.

Grounds One to Four

The appellant’s submissions

The appellant refers to the pleadings in which the respondent claimed weekly compensation as a result of the aggravation, acceleration, exacerbation or deterioration of a disease occurring on 5 April 2019. The appellant reproduced the description of the injury from Part 4 of the ARD. The appellant maintains that its position remained the position set out in the notice issued pursuant to s 78 of the 1998 Act, which was that the injuries sustained by the respondent in that incident had resolved by September 2019. The appellant says that it drew support for that position from the evidence of Dr Smith, Dr McIntosh and the contemporaneous records of the general practitioners and the physiotherapist.
The appellant points out that the Arbitrator noted the appellant’s position. The appellant says that the respondent’s position was that the symptoms flowing from the pleaded injury never resolved.
The appellant describes as “critical” the Arbitrator’s finding that he accepted that the appellant’s injuries to the back and neck continued because it had not been established that the pleaded injury had no role to play in the subsequent incidents in July and in September 2019. That is, the Arbitrator found that they did not constitute a novus actus interveniens in respect of those body parts. The appellant includes the passage from the Arbitrator’s oral reasons in which the Arbitrator found that the respondent had suffered an injury in the form of an aggravation of a pre-existing asymptomatic condition in the neck and back on 5 April 2019 but left open the question of the nature of the injury to the left shoulder. The appellant submits that those findings were not open to the Arbitrator on the evidence and were in error.
The appellant concedes that there was contemporaneous evidence of the injuries having been sustained in the incident in the general practitioners’ clinical records and it was not disputed that the respondent suffered some incapacity flowing from that event. The appellant asserts that the respondent’s condition gradually improved, was re-aggravated and then totally resolved. The appellant submits that there is clear evidence to that effect in the general practitioners’ clinical notes and the physiotherapist’s records.
The appellant pointed to the evidence that:
(a)    from the beginning of May 2019, the respondent’s condition improved with physiotherapy, and this improvement was continuing, as recorded on 27 June 2019 and 8 July 2019;
(b)    Dr Benjamin noted on 31 May 2019 that the respondent felt he was improving and on 28 June 2019 observed that there was improvement every fortnight;
(c)    on 2 July 2019, Dr Benjamin explained to the respondent the expected time frames for recovery from musculoskeletal injuries and noted that the respondent was occupying himself by doing housework;
(d)    the respondent was keen to return to work by 12 July 2019 and then suffered an aggravation at work on 19 July 2019;
(e)    on 1 August 2019, the respondent reported to Dr Benjamin that he felt good after physiotherapy but afterwards experienced back pain. However, he was keen to return to some work, and
(f)    on the same day, Mr Chisholm advised that:
“[the respondent’s] neck injury has settled since his aggravation at work back to his previous level he still has pain the last 10 degrees of rotation and dysfunctional movement patterns but he is improving with a conscious effort …
[the respondent] is still reporting ongoing issues with his thumb … His pain has improved over the last week but not his strength.
His lower back injury seems to have resolved however he is still continuing with his exercises program.
At this stage I think [the respondent] is ready to upgrade light duties with the following capacity …”.[31]
[31] ARD, p 119.
The appellant further quotes from Mr Chisholm’s report dated 12 August 2019, in which Mr Chisholm observed that the respondent had experienced minimal difficulties during a mini functional assessment. He felt that the respondent was ready to return to pre-injury duties but after a return to full duties would like to review the respondent to ensure there were no flare-ups of his condition.
The appellant points to the entry made by Dr Au in the general practitioners’ clinical notes on 2 September 2019 in which Dr Au recorded that the respondent suffered an exacerbation of his neck pain performing office duties. The appellant submits that the subsequent entry recorded by Dr Benjamin on 12 September 2019, in which Dr Benjamin took the history that the exacerbation occurred when the respondent was reaching out and when he was using the “physio band”, cast doubt on the reliability of Dr Au’s record. The appellant also refers to the respondent being examined by Dr Smith on 5 September 2019.
The appellant acknowledges that s 352 of the 1998 Act requires that an appeal from a decision of an arbitrator is limited to a determination of whether the decision was affected by an error of fact, law or discretion, and refers to the applicable principles discussed by Roche DP in Raulston v Toll Pty Ltd.[32] The appellant also refers to Northern NSW Local Health Network v Heggie[33] as authority for the proposition that a Presidential member is not entitled to interfere with an arbitrator’s decision simply because the member considers a different outcome would be preferable.
[32] [2011] NSWWCCPD 25; 10 DDCR 156.
[33] [2013] NSWCA 255; 12 DDCR 95.
The appellant maintains that the Arbitrator was in error to find that the respondent’s pain continued because it was contrary to the opinions of Dr Au and Mr Chisholm and further erred in fact by finding an incapacity which warranted the making of an award of weekly compensation from 5 April 2019 on an ongoing basis. The appellant submits in the alternative that the Arbitrator erred in attributing any ongoing symptoms to the pleaded injury and not an intervening event. The appellant asserts that the Arbitrator’s rejection of the evidence from the general practitioner’s clinical notes and the physiotherapy notes was not consistent with his observation that the general practitioner’s evidence was important.
The appellant submits that the Arbitrator’s observation that the history of the respondent’s return to work would lead him to suspect that the neck, back and right [sic, left] thumb alone would pose a real difficulty in the respondent’s ability to perform full time work.
The appellant asserts that the opinions of Dr Smith and Dr McIntosh, together with the general practitioners’ clinical notes and the evidence from Mr Chisholm, support a finding that the respondent was not incapacitated for work beyond August 2019. The appellant submits that, in the alternative, the weight of the evidence that there was no ongoing incapacity far outweighed the opposite position found by the Arbitrator. The appellant asserts that the Arbitrator should not have been satisfied that the respondent’s symptoms were ongoing and certainly should not have been satisfied that there was an ongoing incapacity.
The appellant submits that, while it might be said that the report of Dr Benjamin dated 2 December 2019 was evidence supportive of the Arbitrator’s findings, when giving that evidence closer consideration, it is of no assistance. The appellant says that Dr Benjamin does not deal with the clearance to return to work given by Dr Au, which Dr Au gave after having examined the respondent, or the view taken by Mr Chisholm following the mini functional assessment. The appellant submits that Dr Benjamin’s answers provided in the report must be understood in the context of the questions that were asked of him, and those questions were not in evidence.
The appellant refers to the opinion of Dr Porteous and says that it relies on its criticism of the opinion in respect of Ground Six of the appeal and submits that the opinion should not have been accepted. The appellant submits that the result is that the only remaining evidence (that of Dr Smith, Dr McIntosh and the treating practitioners’ records) supports the appellant’s contention that there was no medical basis to support the respondent’s case of ongoing symptoms and incapacity.
The appellant submits that the caution expressed in both Container Terminals Australia Ltd v Huseyin[34] and Mason v Demasi[35] in respect of dealing with clinical notes of a treatment provider does not apply in the circumstances of this case because both Dr Au (in a medical certificate) and Mr Chisholm (in his report) expressed separate but consistent views in relation to the respondent’s capacity.
[34] [2008] NSWCA 320.
[35] [2009] NSWCA 227.

The respondent’s submissions

The respondent submits that he was motivated to return to work despite the fact that the effects of the pleaded injury continued. The respondent refers to the entries in the general practitioners’ clinical notes made on 30 April 2019, 2 May 2019, 23 May 2019 and 27 June 2019 and asserts that those entries recorded an improvement in the low back and neck conditions, but that by the end of June 2019 the respondent was performing light duties, with some dysfunction. The respondent adds that the notes disclose that on 28 June 2019, he was experiencing ongoing neck pain and pain shooting into his left shoulder.
The respondent refers to Dr Benjamin’s reply to questions raised by the respondent’s legal representatives dated 2 December 2019, in which Dr Benjamin advised that the respondent was certified fit for suitable duties on a graded return to work until 13 July 2019, when he was cleared for pre-injury duties because there were no light duties available. The respondent submits that the certification should not be taken at face value and should be understood in its true context, which was that the return on pre-injury duties was on a trial basis only and instigated because there were no suitable duties available. The respondent refers to the appellant’s letter to him in which he was advised that he was to be “trialled” for pre-injury duties from 12 July 2019 to 26 July 2019. The respondent says that this evidence was an acknowledgment that the return to work was to be on a trial basis.
The respondent further refers to the entry in the general practitioners’ notes made on 3 July 2019, which recorded that the appellant said that there was still no work available that was in accordance with the previous certification of capacity. The respondent says that the same clinical note recorded that the respondent continued to suffer some neck restriction, was happy to trial pre-injury duties, and should return to see Dr Benjamin for review of his capacity if there were any issues. The respondent points to the entry in the general practitioners’ clinical notes dated 16 July 2019, when Dr Benjamin referred the respondent to the physiotherapist because of ongoing symptoms in the thumb. The respondent notes that on 19 July 2019, after having felt confident of returning to full duties, he returned to see Dr Benjamin because of the onset of sharp pain in the shoulder and in the neck while tightening a ratchet, which rendered him unable to continue to work.
The respondent submits that the evidence shows that this incident was not one that “broke the chain of causation” and could not constitute a novus actus interveniens because at the time of the incident, the respondent was continuing to experience the effects of the injury. The respondent asserts that the incident was an aggravation or exacerbation while he was performing selected duties. The respondent describes the heavy nature of his pre-injury duties.
The respondent points to the entry in the clinical notes recorded by Dr Au on 2 September 2019, in which Dr Au noted that the respondent had been performing office duties for two weeks, which activities would be likely to exacerbate the respondent’s neck pain. Dr Au recommended a reduction in the respondent’s working hours and thereafter the respondent was certified as having some capacity for 5 hours per day, three days per week.
The respondent refers to the appellant’s submission that the incident in which the respondent was reaching out to his grandchild was a novus actus interveniens. The respondent points out that this incident occurred at the same time as he was performing restricted duties in the office, which Dr Smith noted involved computer work for lengthy hours, exacerbating the respondent’s neck condition. The respondent submits that the appellant’s assertion that the “reaching out” incident constituted a novus actus interveniens ignores the material contribution to his neck injury and incapacity made by the office duties.
The respondent points out that his attempt to return to work on office duties had a deleterious effect on his neck injury and he had continued problems with his thumb. The respondent submits that this evidence discloses that the pleaded injury caused ongoing restrictions in his capacity, he had attempted to return to pre-injury duties prematurely and, as a result, exacerbated his injuries.
The respondent submits that the Arbitrator’s decision was based on all of the evidence before him and that the Arbitrator gave clear reasons for accepting that the neck and back injuries continued to cause a degree of incapacity. The respondent points out that the Arbitrator was unable to satisfy himself as to whether the symptoms in the left shoulder resulted from the pleaded injury and ultimately did not include the left shoulder restrictions in his assessment of the respondent’s capacity.

The respondent refers to the reservations expressed by the Arbitrator in determining the reliability of the respondent’s evidence solely on the opinion of Dr Smith, who had only examined the respondent on one occasion, in the context of the appellant having not cross-examined the respondent or otherwise challenged his evidence. The respondent submits that it was open to the Arbitrator to find that he was not persuaded by Dr Smith’s opinion and he could not accept that evidence over all of the other evidence about injury and capacity. The respondent points to the Arbitrator’s reasons, in which the Arbitrator explained that:
“it can readily be inferred, however, from the applicant’s medical case that the doctors were of the view that the symptoms, at least in the applicant’s back and neck, had continued to one degree or another since the time of the injury.”[36]
[36] T 8.21–25.
The respondent asserts that the Arbitrator dealt with the appellant’s submission in relation to the incidents in July 2019 and September 2019, and noted that:
(a)    the respondent’s doctors were apprised of all of the relevant evidence and the histories;
(b)    the doctor’s opinions were based on all of the relevant material, and
(c)    those opinions conformed with the standard required of expert evidence.
The respondent submits that the Arbitrator’s conclusion that the respondent’s neck and back injuries continued was based upon the whole of the evidence referred to and was a finding that was open to the Arbitrator. The respondent further submits that it was open to the Arbitrator to discount the left shoulder symptoms on the basis of the inconsistent findings recorded by Dr Smith and Dr Porteous when assessing the respondent’s incapacity.
The respondent further submits that, on the basis of the evidence before the Commission, it was open to the Arbitrator to determine that the respondent had a capacity to earn in the order of $500 per week, after discounting the left shoulder condition from that consideration.
The respondent contends that:
(a)    it was open to the Arbitrator to prefer the respondent’s evidence;
(b)    having preferred one view of the evidence, it was open for the Arbitrator to draw inferences from that evidence;
(c)    it is not sufficient that a different decision maker might draw a different inference or have a different view of the evidence, if both views are open on the evidence;
(d)    no material facts were overlooked and no particular evidence was given undue or too little weight, and
(e)    the Arbitrator did not overlook any relevant considerations or take into account any irrelevant considerations.
The respondent refers to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[37] as authority for those propositions and submits that, for those reasons, the decision was not affected by error.

Ground Five

[37] [2001] FCA 1833.

The appellant’s submissions

The appellant quotes at length from the discussion by McColl JA (with Ipp JA and Bryson JA agreeing) in Pollard v RRR Corporation Pty Ltd,[38] in which her Honour set out what is required in relation to the giving of adequate reasons and observed that:
(a)    a judge does not have to spell out every detail in the process of reasoning;
(b)    the reasons for resolving a critical issue between the parties must be exposed, and
(c)    the reasons must do justice to the issues posed and explain why the arguments put were either accepted or rejected.
[38] [2009] NSWCA 110, [56]–[59].
The appellant submits that the whole of the decision is to be taken into account and that the reasons need not be lengthy or elaborate, in accordance with the principle enunciated in Beale v Government Insurance Office (NSW).[39] Further, the focus ought to be on the substance of the decision.[40] The appellant says that while the Arbitrator did broadly identify the issues between the parties, he did not sufficiently set out his path of reasoning so that the parties could understand why he made a number of key findings and rejected the appellant’s submissions.
[39] (1997) 48 NSWLR 430 (Beale).
[40] Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115.
The appellant refers to the Arbitrator having rejected the opinion of Dr Smith about the respondent’s lack of reliability because that opinion was based solely on the one occasion when Dr Smith examined the respondent. The appellant asserts that there was no explanation as to why the Arbitrator formed that view and cited no authority in support of that conclusion. The appellant submits that this was required in circumstances where he formed a view about the reliability of the respondent’s evidence when the respondent was not cross-examined. The appellant refers to the decision of Roche DP in JB Metropolitan Distributors Pty Ltd v Kitanoski.[41] The appellant adds that Dr Smith formed his adverse view of the respondent on the basis of objective medical signs, which reinforces the need for the Arbitrator to give detailed reasons for rejecting Dr Smith’s opinion.
[41] [2016] NSWWCCPD 17, [121].
The appellant further refers to the Arbitrator’s finding that it could be inferred from the respondent’s medical case that the doctors held the view that the respondent’s back and neck symptoms continued to some extent from the date of the pleaded injury and that Dr Porteous clearly understood that to be the case. The appellant submits that, on the basis of the medical evidence from the general practitioners and the physiotherapist, the Arbitrator was required to explain why that inference could be drawn and why he preferred the submissions of the respondent in relation to that material.
The appellant adds that there was no explanation provided by the Arbitrator for his observation that he would be reluctant to accept the view of a doctor who had only examined the respondent on one occasion. The appellant says that this was apparent from the Arbitrator having failed to explain the conclusion reached in the face of the opinions of Dr McIntosh and Dr Smith. The appellant asserts that the evidence of Dr McIntosh was not challenged by other expert evidence. Further, the Arbitrator did not explain why he did not accept Dr Smith’s opinion that the respondent was likely to have had restrictions on his capacity for a closed period only. The appellant submits that this hypothesis was entirely consistent with the evidence from the general practitioners and the physiotherapist.

The respondent’s submissions

The respondent submits that the Arbitrator’s reasons for rejecting Dr Smith’s opinion on the reliability of the respondent’s evidence were cogent and rational. The respondent says that the reasons were based on the evidence and the Arbitrator’s preferred view of the evidence and his reasons were sufficient to assist the parties to understand the outcome. The respondent maintains that the Arbitrator made findings on material questions of fact by reference to the evidence upon which those findings were based. Further, he applied the correct legal principles.
In conclusion, the respondent submits that, in order to establish error on the part of the Arbitrator by failing to give adequate reasons, the appellant must demonstrate that the inadequacy amounted to a failure on the part of the Arbitrator to exercise his statutory duty.[42] The respondent submits that the Arbitrator carried out his duty comprehensively and there was no error.

Ground Six

[42] NSW Police Force vNewby [2009] NSWWCCPD 75, [149]–[151].

The appellant’s submissions

The appellant asserts that, contrary to the Arbitrator’s finding, it is apparent from the face of the document that the opinion of Dr Porteous was arrived at without having regard to the respondent’s actual history. The appellant submits that this failing rendered Dr Porteous’ opinion as having no probative value and could not be relied upon to support a finding of incapacity, and there was no other evidence that the respondent had an incapacity.
The appellant refers to the decision in AP v NSW Police Force,[43] in which Roche DP reviewed the considerations as to whether an expert’s opinion could be accepted. Roche DP observed that the expert must identify the facts and reasoning process which justifies the expert’s opinion. The appellant also refers to the Court of Appeal authority of Hancock v East Coast Timber Products Pty Ltd,[44] in which Beazley JA (as her Honour then was) observed that, although the Commission is not bound by the rules of evidence, the expert must provide a satisfactory basis for their conclusion. Further, the acceptance of that evidence is a matter of weight, not of admissibility.
[43] [2013] NSWWCCPD 11, [296].
[44] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399.
The appellant says that Dr Porteous listed the documents provided to him and that list did not include the records from the physiotherapist and the extent of the treatment received from the physiotherapist was not recorded in Dr Porteous’ report. The appellant submits that it is apparent that the history recorded by Dr Porteous, which was obtained during the consultation, did not include very relevant aspects of the history from the general practitioners’ records and those of the physiotherapist. The appellant points to Dr Porteous’ apparent lack of awareness that the respondent was certified fit for pre-injury duties by two separate experts in August 2019 before he went off work again. The appellant contends that, in the absence of that information, Dr Porteous did not have a fair climate in which to base his opinion.
The appellant adds that Dr Porteous formed the view that he could only conclude that the incident was the substantial cause of the respondent’s cervical thoracic and left thumb symptoms on the basis that there was an unbroken temporal association with the reported incident. The appellant also refers to Dr Porteous’ opinion that it was more likely than not that the ongoing neck, lumbar and thumb conditions were caused by the pleaded incident because there was no evidence that the temporal association had been broken.
The appellant submits that the general practitioners’ records and the records of the physiotherapist clearly show that it was not the case that there had been a clear and unbroken temporal relationship between the symptoms and the incident on 5 April 2019. The appellant further submits that this observation by Dr Porteous gives rise to the unavoidable inference that Dr Porteous was not aware of the respondent’s situation in August 2019.

The respondent’s submissions

The respondent contends that the Arbitrator did not simply rely on the opinion of Dr Porteous. The respondent submits that Dr Porteous’ opinion was part of a matrix of medical opinion which the Arbitrator found persuasive in relation to the respondent continuing to suffer incapacity as a result of the injuries to the back and neck. The respondent says that the Arbitrator explained at length why he preferred the opinion of Dr Porteous over that of Dr Smith. The respondent asserts that the Arbitrator was satisfied that Dr Porteous had a full account of the relevant histories and that Dr Porteous’ opinion was based upon a solid foundation.

THE RELIEF SOUGHT

The appellant seeks to have the appeal upheld and an award in its favour in respect of the respondent’s entitlements to compensation beyond 2 September 2019, or, in the alternative, that the matter be remitted for re-hearing.
The respondent submits that the appellant has failed to establish error of fact, law or discretion as required by s 352(5) of the 1998 Act and that the appeal ought to be rejected. The respondent seeks to have the Arbitrator’s decision confirmed.

DISCUSSION

Grounds One to Three of the appeal assert error on the part of the Arbitrator in finding the respondent was not fit for his pre-injury duties during the period up to 8 November 2019 and from 9 November 2019, and awarding the respondent a continuing weekly payment of compensation pursuant to s 37 of the 1987 Act. The appellant’s submissions in support of these grounds are largely reliant upon the proposition that the effects of the pleaded injury had resolved, and any symptoms and incapacity resulted from new events in July 2019 and/or September 2019. The fact-finding process adopted by the Arbitrator which resulted in the award of weekly payments is challenged in Ground Four of the appeal. It is convenient therefore to deal with Ground Four before turning to the first three grounds of appeal.

Ground Four

The appellant asserts that the Arbitrator erred in his fact-finding process that led to his conclusion that the effects of the pleaded injury continued, which resulted in the respondent being entitled to weekly payments of compensation. Firstly, the appellant submits that there is evidence from the general practitioners’ notes that, after the pleaded injury, the respondent’s condition gradually improved, was re-aggravated, and then totally resolved. The appellant relies on the clinical notes of Dr Benjamin, which recorded improvement in the respondent’s symptoms between May 2019 and 12 July 2019 and a re-aggravation on 19 July 2019.
The appellant refers to:
(a)    the evidence of Mr Chisholm that on 1 August 2019, the respondent reported that his neck symptoms had “settled since his aggravation at work back to his previous level,”[45] and that the back injury appeared to have resolved;
(b)    Mr Chisholm’s observation on 12 August 2019 that the respondent had minimal difficulties completing the mini functional assessment and was ready to return to pre-injury duties, and
(c)    Dr Au’s entry in the clinical notes on 2 September 2019 that the respondent suffered an exacerbation of his neck pain performing office duties.
[45] ARD, p 119.
The appellant asserts that the Arbitrator erred in rejecting the evidence in the clinical notes made by the general practitioners and the evidence of Mr Chisholm. It appears that the respondent is referring to those entries summarised above. The appellant says that in doing so, the Arbitrator acted contrary to his own observation that the evidence of the general practitioner was important.
The entry made by Mr Chisholm on 1 August 2019 that the appellant’s neck symptoms had settled to the level experienced prior to the work related aggravation is clearly a reference to the work related aggravation occurring in July 2019 when the appellant had attempted to return to pre-injury duties. This entry cannot be read as evidence that the neck pain consequent upon the pleaded injury had resolved prior to the aggravation in July 2019 or at any time thereafter. In fact, it is implicit that the entry confirms that the respondent experienced neck pain in the pleaded injury, which had improved to an extent, was re-aggravated, but again settled to the level of pain experienced after the pleaded injury and before the re-aggravation.
The entry recorded by Mr Chisholm on 1 August 2019 included a reference to the respondent’s back condition appearing to have resolved. That entry must be read in the context of the entry of the same date made by Dr Benjamin that the respondent felt better after physiotherapy but subsequently experienced back pain. Although Mr Chisholm suggested an upgrade in the respondent’s suitable duties at that time, that upgrade was not to the level of pre-injury duties.
The fact that the respondent had minimal difficulties during a mini functional assessment does not demonstrate that the respondent was fit to perform the sustained full-time heavy work he had undertaken pre-injury.
It is notable that the appellant never returned to pre-injury duties after the pleaded injury, except for the few days in July 2019 which resulted in an aggravation of his injuries. The letter from Ms Chandra dated 19 July 2019 confirms that the return to pre-injury duties was on a trial basis only, and the outcome was that it was unsuccessful. It is also notable that the certificate dated 12 July 2019, which certified that the respondent was fit for pre-injury duties, was issued at the request of the respondent who, on a proper assessment of the evidence, appeared highly motivated to return to work. Dr Benjamin recorded on 12 July 2019 that the respondent expressed his willingness to trial a return to work. The certificate of capacity dated 12 July 2019 expressed that the pre-injury duties were to be a trial and noted that the factors affecting recovery were neck stiffness and sciatic pain down the left leg. Further, the letter from Mr Stephen Smith dated 2 September 2019 confirmed that the respondent’s return to pre-injury duties in late August 2019, which never eventuated, was also to be on a trial basis. The pre-injury duties certificate issued by Dr Au on 15 August 2019 also recorded that neck stiffness and sciatic pain down the left leg were factors preventing recovery.
This evidence, when read together, undoubtedly supports the Arbitrator’s finding that the symptoms consequent upon the pleaded injury had not resolved before the aggravation in July 2019 or the aggravation in late August 2019. The medical evidence thereafter also supports the notion that the respondent’s incapacity resulted from the pleaded injury, with the exception of the opinion of Dr Smith.
Dr Smith examined the respondent on 5 September 2019, shortly after the respondent had returned to work performing lengthy hours of computer work and aggravated his neck condition. Dr Smith diagnosed degenerative disease in the cervical and lumbar spine, which he accepted could have been exacerbated in the pleaded injury. Dr Smith formed the view that the respondent had recovered from the effects of the injury and, in respect of the neck condition, arrived at that conclusion on the basis of his physical examination of the respondent. Dr Smith’s conclusion was to the effect that the pattern of weakness in the neck and left shoulder demonstrated on examination was not anatomically consistent with the mechanism of injury and was not caused by any “organic illness.”[46] Dr Smith did not provide any explanation as to why he formed the view that the aggravation of the lower back degenerative condition had resolved.
[46] Report of Dr Smith, reply, p 459.
The appellant says that on the one hand, Dr Au’s clinical note recorded on 2 September 2019 could not be considered reliable because it was inconsistent with Dr Benjamin’s subsequent note that the onset of neck pain was caused by “reaching out” and using a physiotherapy band. On the other hand, the appellant submits that the Arbitrator erred in finding that the respondent’s pain continued because it was contrary to the opinions of Dr Au and Mr Chisholm. These apparently contradictory submissions are unconvincing in terms of establishing error on the part of the Arbitrator.
The Arbitrator’s task was to evaluate that evidence in order to reach a factual conclusion as to whether he was satisfied that the aggravation to the respondent’s degenerative condition in the neck and lower back continued.
The Arbitrator weighed the evidence of Dr Smith against the contemporaneous clinical records, the opinion of Dr Benjamin and the opinion of Dr Porteous. The probative value of the opinion of Dr Porteous is discussed below in relation to Ground Six of the appeal.
Whether the respondent’s incapacity resulted from the pleaded injury must be determined on the facts of this case. In Kooragang Cement Pty Limited v Bates,[47] Kirby P (as his Honour then was) made the following relevant observations:
“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 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 common sense 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 a disease), is a question of fact to be determined on the basis of evidence, including where applicable expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[48]
[47] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[48] Kooragang, 463–464.

As Parker ADP observed in Le Twins Pty Ltd v Luo,[49] “[m]ost conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.”
[49] [2019] NSWWCCPD 52, [71].
The Arbitrator’s finding that the effects of the pleaded injury continued was a finding of fact which had a sound basis in the evidence. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise and generally a matter that falls within the province of the primary decision maker.[50] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[51]
[50] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
[51] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
The Arbitrator’s finding that the effects of the pleaded injury continued was open to him on the evidence. The appellant has provided no convincing submission upon which to found its allegation of error on the part of the Arbitrator in his fact finding process and this ground of appeal fails.

Grounds One, Two and Three

The appellant alleges that the Arbitrator erred in finding that, as a result of the injuries to the respondent’s cervical spine, lower back, left thumb and the symptoms in the left shoulder, the respondent was totally or partially incapacitated for work until 8 November 2019, from 9 November 2019 and erred in entering a continuing award.
The Arbitrator did not find that the respondent’s capacity for work was compromised by the left shoulder injury. The Arbitrator found that the respondent’s injuries to his neck and back affected his capacity for work to varying degrees at all times from 5 April 2019. As was pointed out in Ground Four, the respondent never returned to his pre-injury duties, except for the few days during which he trialled his usual duties and suffered a further aggravation of his condition. For the reasons set out in respect of Ground Four, it was open to the Arbitrator to find that the effects of the pleaded injuries to the neck and back continued. The appellant’s submissions that the Arbitrator was in error in finding that the respondent lacked capacity for work rests upon the argument that the pleaded injuries resolved. That argument failed. The overwhelming evidence, referred to in my consideration of Ground Four, supports the respondent’s claim that he suffered a continuing incapacity. The appellant does not challenge the Arbitrator’s finding as to the extent of the respondent’s capacity for work, the quantum of the entitlement to weekly payments, or the application of s 37 of the 1998 Act. The appellant has failed to identify error on the part of the Arbitrator in his determination.
For those reasons, Grounds One, Two and Three of the appeal also fail.

Ground Five

Ground Five of the appeal asserts error on the part of the Arbitrator in that the Arbitrator failed to give an explanation, or adequate reasons for:
(a)    rejecting the opinion of Dr Smith about the reliability of the respondent’s evidence;
(b)    inferring that the respondent’s doctors were of the view that the respondent’s symptoms were referrable to the pleaded incident in the back and neck continued;
(c)    considering that Dr Porteous clearly understood that the doctors were of that view;
(d)    observing that he would be reluctant to accept the opinion of Dr Smith because Dr Smith had examined the respondent on only one occasion, when Dr Smith’s view was supported by that of Dr McIntosh, and
(e)    failing to accept Dr Smith’s opinion that the respondent’s capacity for work was restricted for a closed period only.
In ADCO Constructions Pty Ltd v Ferguson,[52] Deputy President Fleming set out the approach to be taken in assessing the adequacy of reasons.
[52] [2003] NSWWCCPD 21 (Ferguson).
The Deputy President made the following observations:
“The standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker. The decision to refuse to allow the filing of a Reply, in the context of the Commission’s informal and expeditious process, does not require lengthy, detailed written reasons. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and is obliged to act according to equity and good conscience and the demands of the instant case. The purpose of giving reasons is to enable the parties to understand why the decision has been made.”[53]
[53] Ferguson, [31].
The Arbitrator’s conclusion in relation to whether the left shoulder symptoms resulted from the pleaded injury has not been challenged in this appeal, so that it is not necessary to deal with that aspect of the medical opinions. The Arbitrator considered that the reliability of the respondent’s evidence was critical to the acceptance of Dr Smith’s opinion. He contrasted that opinion with the opinions of Dr Benjamin and Dr Porteous. The Arbitrator reviewed the respondent’s medical evidence which he considered supportive of the notion that the symptoms referable to the pleaded injury in the back and neck had, to various degrees, continued. The Arbitrator did so on the basis that both Dr Benjamin (as a treating doctor) and Dr Porteous (who had access to and reviewed the clinical material produced by the respondent’s general practitioners) were informed of the respondent’s progressive complaints. It was a logical conclusion that those doctors were in a better position to assess the respondent’s reliability than Dr Smith, who did not identify what documentation was provided to him by the appellant for review or considered by him, other than:
(a)    the letter from Mr Chisholm dated 30 April 2019, which did not mention the left thumb injury;
(b)    an x-ray report of the left wrist dated 30 April 2019 and an MRI dated of the left wrist on 26 June 2019, and
(c)    details of an MRI scan of the neck undertaken on 3 July 2019.
The fact that Dr McIntosh came to the same view as Dr Smith is of little value in determining the medical issue before the Commission. Dr McIntosh is not medically qualified and has never examined the respondent. His evidence is limited to the general theory of whether the ergonomic forces involved in the pleaded injury would be likely to have a prolonged effect. The appropriately qualified medical experts are in a better position to opine whether the respondent’s symptoms are referrable to the pleaded incident.
The Arbitrator’s reasons for rejecting Dr Smith’s evidence were logical, sound and sufficiently clear. The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case.[54] The Arbitrator is not required to give lengthy reasons. When giving consideration to the adequacy of the Arbitrator’s reasons, the decision must be read as a whole, and not with an eye attuned to find error.[55]
[54] Mifsud v Campbell (1991) 21 NSWLR 725, 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed).
[55] Beale, 443.
In that context, the reasons provided by the Arbitrator for the rejection of Dr Smith’s opinion were adequate. It follows that Ground Five of the appeal fails.

Ground Six

In this ground of appeal the appellant asserts that the Arbitrator erred by finding that the opinion of Dr Porteous was of sufficient weight to support the respondent’s case of incapacity. The appellant submits that it is clear on a plain reading of Dr Porteous’ report that Dr Porteous did not have regard to the respondent’s actual history when forming his opinion.
In his report, Dr Porteous listed the documents which he said he had received, reviewed and considered, which were:
(a)    the notice issued by the appellant pursuant to s 78 of the 1998 Act;
(b)    the application made by the respondent to ILARS “with annexures”;
(c)    the general practitioners’ clinical notes;
(d)    the report of Dr Benjamin dated 2 December 2019, and
(e)    the respondent’s statement.
Dr Porteous recorded a detailed account of the pleaded injury. He included a thorough review of the respondent’s treatment thereafter and his capacity for work. He noted that the respondent returned to restricted duties and then felt sufficiently well enough to attempt normal duties on 17 July 2019. Dr Porteous provided an account of the incident on 19 July 2019 and said that the respondent complained of “substantially increased left shoulder pain”[56] and an inability to move his neck. Dr Porteous noted that the respondent had a further three weeks off work and returned to office duties on reduced hours. Dr Porteous recorded that the respondent complained of an increase in lower back, left buttock and left leg symptoms as a result of the constant sitting involved in those duties. Dr Porteous said that the respondent’s hours and days of duties were further reduced, before being made redundant in October 2019.
[56] Report of Dr Porteous, ARD, p 2.
Dr Porteous exhaustively detailed the respondent’s past injuries and noted that the respondent “stated categorically”[57] that he had fully recovered from those past injuries and was able to return to his full duties prior to the pleaded injury. Dr Porteous also recorded a lengthy description of the tasks required of the respondent in his pre-injury duties and his findings on examination of the respondent.
[57] Report of Dr Porteous, ARD, p 3.
The matters identified by the appellant which it asserts were very relevant were that:
(a) Dr Porteous did not have available to him the physiotherapist’s notes, and
(b) Dr Porteous had an apparent lack of awareness that the respondent was certified as fit for pre-injury duties by both his general practitioner and his physiotherapist in August 2019, before he went off work for a further time.
In his report, Dr Porteous advised that he had “received, reviewed and considered” the documents provided to him. Those documents included the notice issued by the appellant pursuant to s 78 of the 1998 Act. In the reasons for disputing liability, the notice made clear reference to the certificate of capacity issued by Dr Au dated 15 August 2019. The notice also referred to the record of the physiotherapist having stated that he had undertaken a mini functional assessment of the respondent, which the respondent had passed with little difficulty, resulting in the physiotherapist concluding that the respondent was ready to return to his pre-injury duties. Dr Porteous also said he had reviewed and considered the general practitioners’ clinical notes.
It is abundantly clear that Dr Porteous was well aware of the respondent’s “actual history.” Having reviewed the notice issued pursuant to s 78, which made clear reference to the certificate issued, as well as the general practitioners’ clinical records, it was most likely that Dr Porteous was well aware of the contents of the certificate of capacity issued on 15 August 2019 and at least the opinions of Dr Au and Dr Benjamin that the respondent was fit for a trial of pre-injury duties.
As the respondent submits, the certification referred to must be considered in the context of all of the evidence. Dr Porteous formed the view that there was no evidence that the aggravation of the respondent’s condition in the neck and lower back had ceased. The evidence about the respondent returning to “pre-injury” duties was that the respondent advised Dr Benjamin that he would be prepared to trial full duties. Mr Stephen Smith referred to the duties as a “trial.” In that context, it was open to Dr Porteous to consider that there was a continuing relationship between the appellant’s fluctuating but ongoing symptoms and the pleaded injury.
The appellant’s assertion that Dr Porteous’ observation that there was an unbroken temporal association with the pleaded injury leads to the inference that Dr Porteous was unaware of the respondent’s situation in August 2019 is not made out. As a consequence, Ground Six of the appeal fails.

CONCLUSION

The appellant has failed to establish error on the part of the Arbitrator and the Certificate of Determination dated 23 September 2020 is confirmed.

DECISION

The Certificate of Determination dated 23 September 2020 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

5 February 2021