Tuggerah Lakes Memorial Club Limited v Borg - [2011] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Tuggerah Lakes Memorial Club Limited v Borg [2011] NSWWCCPD 70
APPELLANT:		Tuggerah Lakes Memorial Club Limited
RESPONDENT:		Maryrose Borg
INSURER:		CGU Insurance Limited
FILE NUMBER:		A1-1126/11
ARBITRATOR:	Mr Ross Bell
DATE OF ARBITRATOR’S DECISION:		12 September 2011
DATE OF APPEAL DECISION:		8 December 2011
SUBJECT MATTER OF DECISION:		Challenge on appeal to factual findings made by Arbitrator; injury; s 4(b)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry Lawyers
Respondent:	Michael Evers & Co
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination made in the Certificate of Determination dated 12 September 2011 is confirmed. 2. The appellant is to pay the respondent’s costs.

BACKGROUND TO THE APPEAL

Maryrose Borg commenced employment with Tuggerah Lakes Memorial Club Limited (the appellant) as a cook/catering assistant in 1999. On 27 October 2003, in the course of that employment, she received injury as she was moving produce in the appellant’s coolroom. Mrs Borg was absent from work for a period of some weeks, following which she returned to light duties. By reason of persistence of her symptoms, being back and neck pain, her duties were varied. Mrs Borg persisted with those duties until 30 July 2004, at which time she ceased work because of ongoing disability. Subsequent efforts to retrain and resume work have been unsuccessful.
The appellant at first accepted liability in respect of a claim for compensation benefits and Mrs Borg was paid weekly compensation and medical expenses by consent. In 2006, a dispute arose concerning Mrs Borg’s entitlement to lump sum compensation and in respect of her entitlement to reimbursement of treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). That dispute came before the Commission for conciliation and arbitration following the issue of a Medical Assessment Certificate (MAC) by Dr Pillemer. At the hearing before the Arbitrator, the parties reached agreement with respect to Mrs Borg’s entitlement to a lump sum pursuant to s 66 of the 1987 Act. A determination was made and an award was entered in Mrs Borg’s favour concerning a number of the expenses claimed by her. The Arbitrator’s Statement of Reasons, which accompanied his Certificate of Determination dated 28 August 2006, does not include any express finding as to the nature of the injury suffered by Mrs Borg.
Weekly compensation continued to be paid by the appellant’s insurer until 25 November 2009, when Mrs Borg received notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) of the appellant’s dispute concerning any ongoing liability in respect of weekly payments and treatment expenses. Weekly payments terminated, as specified in that notice, on the 25 November 2009.
An Application to Resolve a Dispute (the Application) was filed on behalf of Mrs Borg in February 2011. The Application sought orders in respect of weekly payments and medical expenses. The medical expenses claimed related, in part, to future medical treatment, being cervical spine surgery which had been the subject of advice given by Dr Nicholas Little, neurosurgeon. The dispute concerning future expenses was referred by the Registrar to an Approved Medical Specialist (AMS), Dr Roger Pillemer, in accordance with the provisions of s 60(5) of the 1987 Act. Dr Pillemer provided a Medical Assessment Certificate (MAC) on 16 June 2011, which provided the following response to the Registrar’s referral:
“Surgery to the cervical spine as proposed by Dr Little.
As noted, in my opinion Ms Borg presents in a very straightforward fashion and does have ongoing evidence of residual C7 nerve root irritation (radiculopathy). In my opinion then surgical treatment as suggested is a very reasonable way forward at the present time.”
Dr Pillemer’s MAC did not resolve the dispute concerning causation of Mrs Borg’s neck condition (which was the subject of Dr Little’s surgical intervention). There also remained a dispute between the parties concerning Mrs Borg’s entitlement to ongoing weekly payments. These disputes came before Arbitrator Bell for conciliation and arbitration on 30 August 2011.
An agreement was reached between the parties concerning Mrs Borg’s entitlement to weekly compensation. That claim was discontinued and an amendment to her claim was noted by the Arbitrator. The issues which remained before the Arbitrator for determination were whether the condition of Mrs Borg’s neck, which required treatment, had been caused by the injury received by her in 2003 and whether such treatment was reasonably necessary in terms of s 60 of the 1987 Act.
These two issues proceeded to arbitration. Following submissions put on behalf of each party, the Arbitrator delivered his determination extempore. An award was entered in favour of Mrs Borg in respect of the future expenses to be incurred for Dr Little’s proposed treatment.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 12 September 2011 records the Arbitrator’s orders:
“The determination of the Commission in this matter is as follows:

1.That the respondent, in accordance with the Medical Assessment Certificate issued by Dr Roger H Pillemer on 16 June 2011 pursuant to section 60 (5) of the Workers Compensation Act 1987, pay the applicant’s section 60 of expenses for her proposed neck surgery on production of accounts or receipts.
2.That the Application in respect of weekly payments of compensation is discontinued.
3.That the respondent pay the applicant’s costs as agreed or assessed.
4.I certify this matter as complex for the purposes Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2003; there is to be an uplift of 20% to the costs applicable to both parties.”

An appeal against the Arbitrator’s determination was registered with the Commission on 28 September 2011.

ISSUES IN DISPUTE

The issues in dispute raised by the appellant are whether the Arbitrator erred in the following respects:
(a)     finding as a fact that Mrs Borg suffered a C6/7 disc injury as a result of the October 2003 injury;
(b)     determining that it was “misleading to be too specific” concerning the nature of the injury;
(c)     finding that injury to the C6/7 level of the cervical spine was an aggravation of a pre-existing condition, and
(d)     accepting the evidence of Dr Bodel concerning causation of the injury at the C6/7 level of the cervical spine.
The issues as summarised are taken from the appellant’s “Grounds of Appeal” which appear at Part B 2.8 of submissions made in support of the Appeal.

ON THE PAPERS REVIEW

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

THRESHOLD MATTERS

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

THE ARBITRAL PROCEEDINGS

The proceedings conducted before the Arbitrator were recorded and a transcript (T) has been produced. A copy has been provided to each party. That transcript records the Arbitrator’s reasons for his determination and orders made (between T29 and T33).
No oral evidence was given before the Arbitrator. Submissions put on behalf of each party are recorded in the transcript. There is no conveniently stated summary of the documentary evidence which was before the Commission. However, it is clear that those documents included all material attached to the Application and the Reply filed by the parties, as well as a number of documents which were attached to applications seeking leave to admit late documents filed by each party. It is noted by the Arbitrator that the evidence of Dr Ghabrial, found in numerous reports which Mrs Borg had earlier sought to rely upon, had been excluded from the evidence prior to conduct of Dr Pillemer’s assessment in June 2011 (T24).
The Arbitrator (at T1) noted that agreement had been reached between the parties concerning Mrs Borg’s claim in respect of weekly payments and that, in the circumstances, that particular claim had been “discontinued”. The Arbitrator then stated “[t]he only remaining issue is whether the proposed surgery to Ms Borg’s neck is reasonably necessary for [sic] the compensable injury in October 2003”. The Arbitrator’s attempt to summarise the nature of the dispute does not correctly define the issues as raised in the proceeding. The issues which remained outstanding were, firstly, the question as to whether there was a causal relationship between the injury which occurred in October 2003 and the undisputed damage to Mrs Borg’s cervical spine at the C6/7 level which, in the view of her treating neurosurgeon, Dr Nicholas Little, required surgery. The second outstanding issue concerned the question of whether such treatment was reasonably necessary.

The Evidence

Each party tendered a very large volume of documentary material. Much of that evidence had relevance to the question of Mrs Borg’s entitlement to weekly compensation and addressed the question of ongoing incapacity. The issues that remained outstanding are directly addressed by a number of medical experts in reports tendered by each party. That material, together with other relevant evidence, is dealt with in the course of discussion below.
It is convenient to identify the evidence relevant to the question of causation without, at this point, attempting a summary of the contents of the various documents.

Mrs Borg’s evidence

The following documents, relevant to the question of causation, are relied upon by Mrs Borg:
(a)     Statement by Mrs Borg dated 22 December 2010.
(b)     Medical reports of Dr Nerida Finch dated 13 May 2010 and 8 February 2011.
(c)     Medical reports from Dr Nicholas Little dated 26 May 2005, 20 October 2009 and 30 November 2009.
(d)     Medical Assessment Certificate of Dr Roger H Pillemer dated 26 June 2006.
(e)     Medical reports from Dr James Bodel dated 29 October 2010 and 20 April 2011.
(f)      Report from Gosford Radiology Centre dated 20 May 2005 (MRI cervical spine).

Appellant’s evidence

The following documents were relied upon by the appellant before the Arbitrator concerning causation:
(a)     Medical reports of Dr John R Watson, orthopaedic surgeon, dated 10 November 2009, 16 November 2009 and 6 August 2010.
(b)     Report from Long Jetty Radiology dated 31 October 2003.
(c)     Report from Long Jetty Radiology dated 11 November 2008.
(d)     Report from Gosford Radiology Centre dated 18 November 2009.
(e)     Reports from Dr Nicholas Little dated 19 October 2009, 20 October 2009, 30 November 2009, 6 August 2010 and 16 August 2010.
(f)      Reports of Dr John Korber, radiologist, dated 3 June 2011 and 12 July 2011.

Submissions before the Arbitrator

Counsel for the appellant identified the issue for determination as being whether the “medical treatment in the form of the discussed surgical procedure to the C6/7 disc is reasonably necessary as a result of [the injury received on 27 October 2003]” (at T19).
It was faintly argued by the appellant’s counsel that Mrs Borg had not received an injury to her neck.
The appellant, following a summary of the medical evidence, argued that the weight of that evidence would suggest that there was no causal nexus between the injury in 2003 and the changes demonstrated at the C6/7 level of Mrs Borg’s cervical spine as demonstrated on the available radiological investigations. That being so, it was put, the Arbitrator could not “conclude by balance of probabilities that [the changes at C6/7] result from the [October 2003 injury]” (at T19).
Counsel appearing for Mrs Borg made reference to the order made in 2006 by Mr Foggo, Arbitrator, seeking an assessment by an AMS of any whole person impairment. That referral required consideration by the AMS of any whole person impairment resulting from, among other things, an injury to the cervical spine. Such referral, it was argued, demonstrated that Arbitrator Foggo had “either accepted or found injury in relation to the neck”.
The respondent made it clear that Mrs Borg’s allegation was “that the injury in 2003 initiated a process as alleged in the Application of 2006 and a degenerative disc disease” (at T22). The evidence of Dr Bodel was relied upon in support of the proposition that such disease had “progressed” between 2003 and 2009.
The evidence of Dr Finch was also relied upon by Mrs Borg in support of her argument that injury to her neck was received in 2003 and that the condition of the neck had “progressed” and had been “exacerbated by stresses caused by her lumbar injury” (at T27).

The Arbitrator’s decision

The medical evidence relating to the condition of Mrs Borg’s neck, including those opinions expressed by the medical experts concerning radiological investigations, was briefly summarised by the Arbitrator. The conflicting views of those experts were noted.
The Arbitrator appears to have considered the appellant’s arguments concerning the occurrence of injury to the neck when he stated (at T31–32):
“So what we’re left with is evidence from Ms Borg and from the histories given to the doctors of continuing symptoms from 2003, that incident, the original incident and, well, the injury isn’t in question really. It’s just about whether the pathology from the incident continues; whether there’s a need for the surgery arises (sic) from the original incident.”
The question as to whether the damage to the disc at C6/7 of Mrs Borg’s cervical spine, as demonstrated on an MRI study made in November 2009, was then considered by the Arbitrator. The evidence of Dr Bodel was accepted. It was observed in the course of Reasons that “it would be misleading to be too specific about the nature of the injury, to be over precise about what actual segments are involved” (at T32).
It was accepted by the Arbitrator that Mrs Borg had experienced symptoms in her neck “since the injury in 2003” and that those symptoms had:
“been ongoing, they have been worsening and on the evidence I would put this in the category of being the aggravation of a pre-existing condition and in circumstances such as this where those symptoms have continued all the way through for some eight years now, then I think it’s reasonable to see that as being the aggravation, exacerbation, acceleration etc of a pre-existing condition and that it’s continuing”.
Following a further review of the expert medical evidence, including that of Dr Watson, Dr Korber, Dr Bodel, Dr Little and Dr Finch, the Arbitrator gave reasons for his preference for the evidence of Dr Bodel and that of Dr Finch.
Dr Pillemer’s opinion, found in the MAC dated 16 June 2011, that the proposed medical treatment of Mrs Borg was reasonably necessary, was accepted by the Arbitrator. A finding was made “that the claimed proposed surgery to Mrs Borg’s neck is reasonably necessary for the compensable injury sustained on 23 October 2003 with [the appellant]” (at T33). An order as sought in the application was made with respect to the anticipated cost of such treatment.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1988 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The appellant’s challenge to the Arbitrator’s decision is focused upon the factual findings made concerning the aetiology of the undoubted changes at the C6/7 level of Mrs Borg’s cervical spine as demonstrated by the MRI study conducted in November 2009 and, in particular, the finding of a causal nexus between the injury in 2003 and those changes. To succeed on appeal, the appellant must establish such factual error or errors, and that such erroneous finding/s affected the decision which is the subject of the appeal.
There was substantial conflict between the expert medical witnesses concerning both the significance of the radiological evidence and the question as to causation of the undoubted changes at C6/7.
The reports accompanying the radiological studies relating to Mrs Borg’s cervical spine which are in evidence were as follows:
(a)     31 October 2003 plain x-rays of cervical spine. “The vertebral alignment and disc space heights are within normal limits with no instability shown on flexion/extension. There is no focal bone lesion or defect seen and the C1/2 articulations and posterior facet joints are within normal limits. No bony narrowing of exiting foramina or cervical ribs seen.”
(b)     20 May 2005 MRI scan. “Findings: At C4/5 and to a lesser extent C6/7 there are discovertebral bars causing impressions on the thecal sac but no deformity or signal change in the underling cord.
There is some foraminal narrowing at these levels due to uncovertebral hypertrophic change but no nerve root compression.
Conclusion: Mid cervical degenerative changes but no nerve root compression.”
(c)     11 November 2008 CT cervical spine. “Scans performed between C2/3 and C7/T1 levels. Beam hardening artefact from the shoulders has degraded the images at levels C6/7 and C7/T1.
The sagittal images show abnormal kyphosis present centred around the C4/5 level. The disc at C4/5 is narrowed with disc margin osteophytosis. There are neurocentral joint osteophytes at C4/5 associated with mild foraminal narrowing, more market on the right.
Mild posterior spondylotic lipping noted at C5/6. No evidence of a disc protrusion or other abnormality.”
(d)     18 November 2009 MRI cervical spine: “Findings: Slight loss of the normal cervical curvature is noted. This may reflect positioning during scanning.
There is disc desiccation at the intervertebral disc spaces from C3 through to C7.
At the C4/5 level, there is a focal moderate right posterolateral disc protrusion encroaching on and appearing to cause some displacement of the adjacent right C5 nerve root just prior to the neural foramen.
At the C5/6 level, there is a broadbased small to moderate profile right posterolateral disc protrusion with some osteophyte formation. It encroaches on the thecal sac and adjacent right C6 nerve root. No definite compression or displacement could be identified.
At the C6/7 level, there is a small to moderate right posterolateral disc protrusion with some osteophyte formation. It encroaches on and appears to be causing compression of the proximal right C7 nerve root.
There does not appear to be any other evidence of any focal disc protrusion.
The thecal sac contents and adjacent neural foraminae otherwise appear to outline normally.
Comment
.C4/5: Moderate right posterolateral/foraminal disc protrusion encroaching on and possibly compressing the right C5 nerve root.
.C5/6: Small to moderate broadbased right posterolateral disc/osteophyte formation encroaching on the cervical spinal cord and the proximal right C6 nerve root without any definite visible displacement or compression.
.C6/7: Moderate right posterolateral disc protrusion with prominent osteophyte formation encroaching on and probably compressing the proximal right C7 nerve root.”

As noted earlier, the evidence accepted by the Arbitrator concerning the issues of injury and causation was that of Dr Finch and Dr Bodel. Dr Finch had treated Mrs Borg since August 2005. In her first report, dated 13 May 2010, a history of neck pain radiating to the shoulders since the occurrence of the injury in 2003 is recorded. Dr Finch also noted that Mrs Borg “has been found (on MRI) to have a discrete nerve impingement at C7, causing the nerve pain in her right arm and surgery has been planned”.
In the second of her reports, dated 8 February 2011, Dr Finch addresses the question of causation of the changes noted at C6/7. It was her opinion that “the newly discovered pathology evident in the MRI scan of 18 November 2009 may well have been exacerbated by the injury of October 2003”. It was also stated by Dr Finch:
“Her injury in 2003 was, I believe, a lumbar disc prolapse with nerve root impingement in her ® leg. I believe she also sustained a less acutely painful injury to her cervical spine which gradually progressed, exacerbated by the two stresses caused by her lumbar injury. She has also developed a progressively debilitating psychological injury due to a chronic pain syndrome and made worse by the difficulties of the workcover process.”

Dr Bodel’s report, dated 29 October 2010, was prepared following a physical examination of Mrs Borg. On that occasion, Dr Bodel had available the radiological studies noted at [38] above (excluding those dated 11 November 2008). It is clear that the material considered by that practitioner included the films as well as the reports. So much is clear having regard to his statement “I have also seen the reports of the various investigations which confirm my clinical impression of those films” (at page 6).
Dr Bodel described the MRI findings of 18 November 2009 as “a progression of pathology which has been present since the original injury”. That description was, in Dr Bodel’s view, more accurate than the description “new pathology” which had been put to him by Mrs Borg’s solicitors when his opinion was sought.
The evidence of Dr Bodel, accepted by the Arbitrator, concerning injury and causal nexus was found at page 6 of Dr Bodel’s first report, where it was stated:
“The natural history of the original disc injury is for a steady deterioration of the circumstance which appears to have been the case in this instance.
Historically this lady’s symptoms have also persisted from the original work injury.
There is therefore a causal link between the work injury and this lady’s ongoing pathology.
There has been an aggravation, acceleration and exacerbation of a disease process of gradual onset in both the neck and in the back in this circumstance.
Work is still a substantial contributing factor to the ongoing complaint.”
Dr Bodel expressed his diagnosis as:
“This lady has disc pathology in the cervical spine and the lumbar spine as a consequence of the work injury on 27 October 2003”.

Ground One

The appellant’s first ground of appeal asserts that the Arbitrator had made an error of fact when he “accepted the probable correctness of Dr Bodel’s opinion that [Mrs Borg] suffered a C6/7 disc injury as a result of the October 2003 injury”. There are three distinct complaints made concerning the evidence relied upon relating to this finding. Those matters may be summarised as follows:
(a)     Dr Bodel had provided no explanation of the precise disc pathology said to have resulted from the subject injury;
(b)     Dr Bodel did not compare the pathology shown on the 2005 and 2009 MRI scans, and
(c)     Dr Bodel did not properly explain his opinion “in accordance with the principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita)”.
The submissions put in support of this ground make no reference to the opinions concerning the radiological evidence and the question of causation which differ to Dr Bodel’s opinion and that of Dr Finch. Argument is limited to a challenge to the correctness of the Arbitrator’s acceptance of Dr Bodel’s opinion. It is put that “it was not clear whether Dr Bodel had ever been provided with the MRI scan of the cervical spine taken in 2005 (approximately two years after the work injury), as opposed to merely being provided with the radiologist’s report of that scan [to enable a comparison with later findings]”. That suggestion must be rejected given Dr Bodel’s statement noted at [41] above. That Dr Bodel had clinically assessed the relevant films is demonstrated by the significant differences between Dr Bodel’s comments on the investigations found in his report and the content of the reports which accompanied each study.
It is put that no weight should be given to Dr Bodel’s opinion given the suggested failure by that witness to compare the relevant films. That argument must be rejected. Dr Bodel has, in both his reports, treated those radiological findings as relevant to the questions of diagnosis and causation. It is clear that Dr Bodel, in rejecting the suggestion made that “new pathology” was demonstrated on the 2009 films, has had regard, when forming his opinion, to the pathology demonstrated by each investigation.
Criticism is made of Dr Bodel’s use of the term “disc injury”. It is suggested that the term is not explained and is “too vague and imprecise a diagnosis”. The submissions repeat the suggestion that the evidence does not meet the standard required of an expert as is stated in Makita.
It was Dr Bodel’s opinion that Mrs Borg “has disc pathology in the cervical spine” and that it was a consequence of the work injury on 27 October 2003. It was on that day, in his view, that a “disc injury” occurred. As earlier noted, Dr Bodel considered that there had been “an aggravation, acceleration and exacerbation of a disease process of gradual onset [in the cervical spine]”. That conclusion had been reached having regard to the history obtained, the findings on physical examination and the various investigations to which he had access. The “disc injury” may thus be seen as an aggravation etc of a disease affecting that level of Mrs Borg’s spine. I reject the suggestion that Dr Bodel has failed to adequately explain his conclusion as is required of expert witnesses as discussed in Makita by Hayden JA (as he then was), as those observations have been considered subsequently (see discussion in Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 per Hodgson JA at [19]–[20]). In my opinion, it was open to the Arbitrator to accept the evidence of Dr Bodel, and the appellant has failed to demonstrate any relevant factual error.

Ground Two

The second ground suggests factual error and misdirection by the Arbitrator as demonstrated by his statement that “I think in this instance it could be misleading to be too specific about the nature of the injury, to be over precise about what actual segments are involved”. The appellant is correct in its criticism of this statement given, as is emphasised in submissions, the nature of the dispute, which concerned the question as to causation of the C6/7 injury and whether surgery at that level was reasonably necessary.
The question is whether the utterance by the Arbitrator of those words in the course of his extempore determination constitutes factual error that has affected his decision. I am not persuaded that any relevant error has been established. It is clear that the surgery addressed by Dr Little concerned treatment at the C6/7 level. That surgery was the subject of the Arbitrator’s order. The Arbitrator’s reluctance to nominate the precise vertebral segment in his Reasons was of no consequence and does not vitiate his determination of the dispute.

Ground Three

The third ground suggests that the Arbitrator’s finding of the occurrence of an aggravation of a pre-existing condition was made in error. It seems to be argued that the Arbitrator’s conclusion was not open, given that the opinion of Dr Bodel was “internally inconsistent”.
The inconsistency suggested in argument was demonstrated, it is put, by Dr Bodel’s views that:
(a) “the natural history of the original disc injury was for a steady deterioration of the circumstance which appears to have been the case in this instance… Historically this lady’s symptoms have also persisted from the original work injury”, and
(b) “there has been an aggravation, acceleration and exacerbation of the disease process of gradual onset in both the neck and in the back in this circumstance”.
I accept that the language adopted by Dr Bodel is, to some extent, less helpful than a plain statement as to causation which addresses the matters raised by the definition of injury as it appears in s 4 of the 1987 Act. It is apparent from the content of Dr Bodel’s second report dated 20 April 2011 that Mrs Borg’s solicitors had taken some steps to clarifying matters. However, relevant correspondence appears not to have been received by Dr Bodel as at the date of that second report.
Notwithstanding any shortcoming in the manner of expression found in the reports of Dr Bodel, I am not satisfied that there exists any “internal inconsistency” as suggested in argument. Dr Bodel is of the view that there was an “original disc injury”. That injury was described as “an aggravation of a disease process”. The natural history of such an injury, in Dr Bodel’s view, was a steady deterioration of the circumstances. The state of the cervical spine at C6/7, as observed by Dr Bodel in the 2009 films, demonstrates progression of pathology present “since the original injury”. Those matters were open to the Arbitrator to accept and I conclude that no relevant error has been demonstrated under this ground.

Ground Four

The fourth ground is expressed as a challenge to the exercise of a discretion by the Arbitrator. However, it is clear that this ground, as argued, again challenges the Arbitrator’s factual findings. The substance of that challenge concerns the fact-finding process adopted by the Arbitrator. It is argued that the acceptance of Dr Bodel’s opinion as to causation was, having regard to the evidence of Dr Korber, Dr Watson, Dr Little and Dr Pillemer, against the weight of the evidence. Such a challenge is distinct from a challenge to the manner of exercise of a discretion. In those circumstances, the appellant’s submissions, which are, in part, founded upon the decision in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (as discussed by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston)), are of no assistance.
Before embarking upon an examination of the evidence, it is important to consider the appropriate manner in which the Commission is to approach suggested factual error by an Arbitrator. A helpful summary of relevant considerations, appropriately formulated by Roche DP following a consideration of relevant authority, appears at [19] of Raulston:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
It is convenient at this point to summarise the expert medical evidence which, the appellant argues, is of such weight as to demonstrate error on the part of the Arbitrator:
(a)     Dr Korber is a specialist radiologist. He did not conduct a physical examination of Mrs Borg, but had seen all the relevant radiological investigations. His reports, dated 3 June 2011 and 12 July 2011, set out his opinion as to those matters demonstrated in the various films. He expressed the view that “the original cervical spine x-ray lateral examination is almost normal with normally preserved disc spaces and no evidence of significant cervical spondylosis at any level being C4/5, C5/6 and C6/7.” It was Dr Korber’s view that the MRI of 2005 demonstrated abnormality at C4/5 and C6/7 levels. He proceeded to state in the first of his reports that “in the 2009 study, the C5/6 level is now abnormal with a right sided posteriolateral disc protrusion not present in the 2005 study. In the 2005 study, the right side of the spinal canal at C4/5, C5/6 and C6/7 appears relative [sic] normal, whereas in the 2009 study, the right sided disc protrusions are seen at three levels with the most marked change at C5/6”. Dr Korber made the observation that “it may be that there has been progression of the disc degeneration which is presumed to be the basis of the changes in 2005”. In his second report, Dr Korber’s attention has been drawn to the findings at the C6/7 level and he states “given that two years have passed from the time of the apparently single incident injury on 27 October 2003, until the first MRI, one would expect that if a disc protrusion had occurred as a result of that initial injury, that it would be present on the 2005 imaging”. Dr Korber proceeded to state “four years after this first MRI examination, there are disc protrusions as [sic, at] three levels on the right side. It is a long bow to draw that these and in particular the right sided C6/7 disc protrusion are related to that day”. Dr Korber expressed the view that “on the balance of probabilities, I feel that the right-sided C6/7 pathology is not related to the 2003 injury, as it is not seen on the 2005 study”.
(b)     Dr Watson is an orthopaedic surgeon. His earlier reports, each prepared in November 2009, addressed the existence or otherwise of whole person impairment. Dr Watson was not “able to determine any organic pathology to account for Mrs Borg’s ongoing subjective symptoms”. In his view, no organic pathology was found that could be assessed as whole person impairment. In a subsequent report, dated 6 August 2010, Dr Watson gave particular attention to the radiological studies available, including the November 2009 MRI report which had come into being following his earlier reports. He was of the opinion that “the findings in the cervical spine are consistent with a degenerative spine”. Dr Watson agreed with Dr Little that “there is new pathology at C6/7 level”. His opinion was that such pathology was “related to the natural progression of degenerative changes and is not related to an incident dating back to 2003”. It was Dr Watson’s view that “the radiological changes are consistent with a degenerative spine which is constitutional and not related to the incident [Mrs Borg] describes”.
(c) Dr Roger Pillemer, an AMS and orthopaedic surgeon, conducted a medical assessment in June 2006, following which the MAC noted at [2] above was issued. Dr Pillemer, following his examination of Mrs Borg, “elected to place Ms Borg in DRE category 1 of her cervical spine, resulting in 0 per cent whole person impairment”. Dr Pillemer concluded that, with respect to Mrs Borg’s neck, there was “no evidence of any neurological involvement (ie no radiculopathy).” Dr Pillemer noted that investigations “show some mild degenerative changes in the mid cervical region which could have been aggravated due to the nature and conditions of work”.
(d)     Dr Nicholas Little, neurosurgeon, is Mrs Borg’s treating specialist surgeon. Dr Little, in his report of 30 November 2009, made reference to the most recent MRI scan and stated “the scan was very interesting in that it shows a new right sided osteophytic disc at C6/7 appearing to compress the C7 nerve”. It was that finding that prompted Dr Little to advise that his patient undergo surgery at that level. It was Dr Little’s view that the disc osteophyte complex “is a degenerative condition”. Dr Little in his report to the appellant’s solicitors stated “it is possible but not certain, and overall probably unlikely that the C6/7 disc injury was sustained in October 2003 and therefore is more likely to be the result of progressive degenerate problems unrelated to that specific incident”.
It may be seen that Dr Watson, Dr Korber and Dr Little each expressed the opinion that, on the probabilities, there is no causal nexus between the pathology demonstrated in the 2009 MRI study and the 2003 injury. Dr Pillemer, in 2006, found no radicular complaints referable to the cervical spine. The question is raised as to whether that evidence is of such weight that the probabilities “so outweigh” the Arbitrator’s finding that it may be said that his conclusion was wrong.
All the medical experts consider that disc degeneration exists in Mrs Borg’s cervical spine. It is also common ground among the experts, excepting Dr Little, that there was abnormality at the C6/7 level noted in 2005, 19 months after the subject injury. The experts, Dr Korber, Dr Watson and Dr Little, attribute the progressive changes to constitutional factors.
The allegation of injury in the present proceedings and in the proceedings commenced in 2006 concerned injury occurring on 27 October 2003 following lifting, twisting and carrying of bags of vegetables in the course of Mrs Borg’s work. It was accepted by Dr Pillemer that the disc degeneration in Mrs Borg’s neck could have been aggravated by her work.
The Arbitrator has relied upon Dr Finch’s views noted at [40] above in reaching his conclusion as to causation. That fact is not acknowledged in argument advanced by the appellant on this question.
The weight of Dr Korber’s opinion must be assessed having regard to the fact that he, as a specialist radiologist, did not have the advantage of the conduct of a physical examination of Mrs Borg. It is acknowledged by Dr Korber that the relevance of radiological findings “should be determined clinically” and that “clinical correlation is always imperative”.
The weight to be ascribed to the evidence of Dr Little, in particular concerning his statement that the MRI of 2009 demonstrated new pathology at C6/7, must be determined having regard to the fact that, unlike all other practitioners, Dr Little in his report dated 26 May 2005 had made no mention of abnormality at C6/7 demonstrated in the 2005 study. In his report to the appellant’s solicitors dated 16 August 2010 under the heading “Initial Investigation” there was, again, no mention of the MRI findings of changes at C6/7.
The evidence of Dr Watson was assessed by the Arbitrator having regard to the circumstance that his last report dated 6 August 2010 was prepared following his consideration of documentation provided by the appellant’s solicitors. Dr Watson did not have the benefit of a further examination of Mrs Borg. The Arbitrator observed that the opinion earlier expressed by Dr Watson that there was not any organic pathology to account for Mrs Borg’s subjective symptoms was not consistent with the MRI findings made soon thereafter. Such an approach to the evaluation of that evidence was, in my view, appropriate.
My overall assessment of the evidence is that there was persuasive material before the Arbitrator concerning the existence of a causal nexus between the injury and the findings of disc lesion at C6/7 (Dr Finch and Dr Bodel). Mrs Borg had consistently complained of neck symptoms since that injury and her neck had been investigated within approximately one week of the occurrence of injury. All the medical practitioners agree that there is evidence of degenerative change in Mrs Borg’s neck which, as opined by Dr Pillemer, may have been aggravated by her work.

The countervailing evidence, which I have attempted to summarise above, is not, in my view, of such weight as to permit a conclusion that the Arbitrator was wrong. In the circumstances, the appellant’s arguments put under this last ground must be rejected.
As observed earlier, the allegation made by Mrs Borg concerning injury to her neck has always been in dispute. That issue was not expressly resolved by the Arbitrator in the proceedings conducted before the Commission in 2006. In the present proceedings, the Arbitrator has not made a formal finding of injury to that part of Mrs Borg’s anatomy. In the circumstances, it is appropriate that I, on this appeal, find that, on 27 October 2003, Mrs Borg received an injury to her cervical spine being aggravation, acceleration, or exacerbation of a degenerative discal disease suffered by her. There has been no challenge on this appeal to the Arbitrator’s finding that the relevant surgical treatment was, in terms of s 60 of the 1987 Act, reasonably necessary. The appeal must be dismissed and appropriate orders appear below.

DECISION

The decision of the Arbitrator as it appears in the Certificate of Determination dated 12 September 2011 is confirmed.

COSTS

The appellant is to pay Mrs Borg’s costs of this appeal.

Kevin O'Grady

Deputy President
8 December 2011

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE