Vandenberg v Department of Corrective Services - [2014] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Vandenberg v Department of Corrective Services [2014] NSWWCCPD 17
APPELLANT:	Toni Vandenberg
RESPONDENT:	Department of Corrective Services
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-1483/12 and A2-1483/12
ARBITRATOR:	Mr D Nolan
DATE OF ARBITRATOR’S DECISION:	18 October 2013
DATE OF APPEAL HEARING:	13 March 2014
DATE OF APPEAL DECISION:	2 April 2014
SUBJECT MATTER OF DECISION:	Injury; challenge by employer to factual findings; challenge by worker to assessment of expert evidence; whether multiple sclerosis caused or aggravated by work incident or subsequent surgery to the cervical spine; reasons; failure in process of fact finding; application for adjournment of appeal hearing; application to rely on fresh evidence or additional evidence on appeal; consequences of medical treatment reasonably undertaken as a result of injury
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr W Nicholson, instructed by McDonnell Schroder
Respondent:	Mr S Flett, instructed by Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted to the Department of Corrective Services under s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. Paragraphs 1, 2, 5, 10, 11, 14, 15 and 16 of the Certificate of Determination of 18 October 2013 are confirmed. 3. Paragraphs 3, 4, 6, 7, 8, 9, 12, 13 of the Certificate of Determination of 18 October 2013 are revoked and the issues in those paragraphs are remitted for re-determination by a different Arbitrator. 4. The respondent employer is ordered to pay the appellant worker’s costs in appeal A1-1483/12, assessed at $2,530 plus GST. 5. The appellant employer is ordered to pay the respondent worker’s costs in appeal A2-1483/12, assessed at $2,530 plus GST.

INTRODUCTION

Toni Vandenberg was a prison officer with the Department of Corrective Services (the Department) at the Parklea Prison. On 2 December 2007, she was assisting nursing staff with an inmate suffering a fit when the inmate kicked her in the chest forcing her onto a concrete wall, causing her several injuries. Exactly which injuries and conditions resulted from the incident is disputed.
Ms Vandenberg’s case was that she injured her chest, left knee, right shoulder, neck and back, and that the injury caused or aggravated multiple sclerosis or Brown Séquard Syndrome or Partial Brown Séquard Syndrome. The Department conceded that Ms Vandenberg injured her left knee but disputed that she injured her neck and back and disputed that her multiple sclerosis or Brown-Séquard Syndrome or Partial Brown Séquard Syndrome had been caused or aggravated by the incident.
The Arbitrator found that Ms Vandenberg injured her left knee, neck and back in the incident and that she suffers from multiple sclerosis, a condition which is unconnected with the work incident. The injury to the right shoulder appears to have resolved, or at least is not a controversial part of the claim.

BACKGROUND

As a result of her injuries, Ms Vandenberg was certified unfit by her general practitioner, Dr Asar, until 3 January 2008 when she returned to work on light duties. Dr Asar noted on 20 February 2008 that Ms Vandenberg had “recovered well” and he certified her fit for full duties from 21 February 2008.
Her left knee symptoms continued and, at some time during 2008, she developed numbness in the left side of her body. Dr Fox, orthopaedic surgeon, operated on her left knee on 8 October 2008. As she continued to have left sided numbness, Dr Fox referred Ms Vandenberg to Dr Walker, a neurologist, who arranged for a cervical spine MRI scan in November 2008, which revealed a C5/6 disc protrusion. Dr Walker referred Ms Vandenberg to Dr Kam, a neurosurgeon, who performed a cervical discectomy and fusion on 9 December 2008.
Ms Vandenberg’s neurological symptoms progressed. After a fall at home in April 2009, caused by Ms Vandenberg’s legs giving way, she was admitted to hospital where she was ultimately diagnosed with multiple sclerosis (though there is also evidence that her condition may be Brown-Séquard Syndrome or Partial Brown Séquard Syndrome). Her condition has continued to deteriorate and it is not disputed that she is currently totally unfit for work.
The Department’s insurer, QBE Insurance (Australia) Ltd (QBE), initially accepted liability and paid weekly compensation and hospital and medical expenses.
In a s 74 notice issued on 23 July 2010, QBE disputed liability for the condition of multiple sclerosis on the ground that it did not arise out of or in the course of Ms Vandenberg’s employment and, if it did, her employment was not a substantial contributing factor to that condition. It relied on evidence from Professor James Lance, consultant neurologist, that Ms Vandenberg’s clinical history, physical signs, and investigations made the diagnosis of multiple sclerosis “inescapable”. He did not consider the onset of the multiple sclerosis to be related to the accident on 2 December 2007 and he attached to his report literature said to support that view.
The insurer also denied that the multiple sclerosis occurred as a result of any treatment (such as the cervical spine surgery) Ms Vandenberg received for her neck injury. It appears to have been accepted that the insurer also disputed liability for the alleged Brown-Séquard Syndrome or Partial Brown-Séquard Syndrome. The insurer continued to pay weekly compensation, medical expenses and domestic assistance “related to [Ms Vandenberg’s] back, neck and left knee injuries”.
In a second s 74 notice, issued on 8 November 2010, the insurer disputed that Ms Vandenberg injured her neck and back in the incident on 2 December 2007. While it accepted that she had injured her left knee, and that that injury caused some permanent impairment, it denied that the knee injury caused any incapacity for work and denied that any further treatment of the left knee injury was reasonably necessary.
The denial of liability for the neck and back injuries was based on:
(a)     records from Blacktown Hospital on 2 December 2007 that recorded that Ms Vandenberg had injured her chest and left knee, but made no mention of any injury to the neck or back;
(b)     the Department’s 48 HOUR Incident Report Form (the 48 Hour Form), dated 3 December 2007 and completed by a Department employee, which recorded the part of the body injured as “chest”, but made no mention of any injury to the neck or back;
(c)     Ms Vandenberg’s claim form, completed on 19 December 2007, in which she said she had been kicked in the chest, which forced her knee first into a concrete wall. Ms Vandenberg recorded that she had injured her left knee, groin, right shoulder arm, and her chest, but made no mention that she had injured her neck or back;
(d)     the first WorkCover certificate from Dr Asar, dated 4 December 2007, which diagnosed “multiple injuries to sternal bone, (Rt) [sic] knee, (Rt) groin”, and
(e)     evidence from Dr Smith, orthopaedic surgeon, who had reported on 2 October 2008 that Ms Vandenberg had not provided a history of injury to her neck as a result of the incident on 2 December 2007.
The insurer paid weekly compensation until 21 February 2011, and the cost of hospital and related expenses, including the cost of the cervical spine surgery, up to 10 January 2011.
Ms Vandenberg commenced proceedings in the Commission on 16 February 2012. She alleged that, as a result of the incident on 2 December 2007, she suffered the following injuries or conditions that resulted from her injuries:
(a)     injuries to her chest, groin, left knee, head, neck, coccyx, right shoulder, right arm, back and torso;
(b)     injury to her cervical spine, including a C5/6 disc injury and protrusion, myelomalacia and cervical cord oedema, which required a cervical discectomy and fusion;
(c)     consequential left foot drop and a fall at her home;
(d)     a back injury, caused by a fall at home because of the left foot drop;
(e)     contraction, acceleration and/or aggravation of diseases and syndromes including Brown-Séquard Syndrome and/or Partial Brown-Séquard Syndrome;
(f)      multiple sclerosis, and
(g)     a psychological injury, including chronic adjustment disorder with depressed mood.
Ms Vandenberg claimed weekly compensation from 21 February 2011 to date and continuing, a general order for the payment of hospital and medical expenses, and lump sum compensation in the sum of $193,393.75 in respect of a 68 per cent whole person impairment as a result of the condition of her cervical spine, lumbar spine, left upper extremity, left lower extremity, and multiple sclerosis.
Ms Vandenberg’s case that she injured her neck and back was supported by evidence from Dr Asar in a WorkCover medical certificate of 2 January 2008 that diagnosed “soft tissue injuries to the neck & back” in the incident and her evidence that she received physiotherapy to her neck in December 2007 and January 2008. It was also corroborated by evidence from her then partner, Mr Bourke, and her son, Adam Lloyd. Ms Vandenberg also relied on reports from Dr Conrad, surgeon, and Professor Fearnside, neurological surgeon, as well as from Dr Walker and Dr Kam.
In support of her claim that the multiple sclerosis (or Brown-Séquard Syndrome or Partial Brown Séquard Syndrome) had been caused or aggravated by the work incident, she relied on evidence from Dr Dowla, her treating neurologist, Dr Walker, Dr Kam, and Professor Fearnside. In support of her psychological condition she relied on evidence from Dr Teoh, consultant psychiatrist.
Dr Dowla’s evidence was, in essence, that the trauma of the incident may have “triggered [Ms Vandenberg’s] underlying demyelination”. His “overall conclusion” was to support a diagnosis of Partial Brown Séquard Syndrome as a result of cervical trauma suffered in December 2007 “as the predominant cause of [Ms Vandenberg’s] current clinical condition”. He added, in a later report, that it was well known that multiple sclerosis “can be triggered by physical trauma”, but acknowledged that there was some “controversy regarding the causation between physical trauma and the onset of aggravation of” multiple sclerosis. He noted that more recent studies showed that trauma to the head and neck “bears a relationship to aggravation or of [sic] creation of” multiple sclerosis.
Dr Walker’s evidence was that Ms Vandenberg suffered a C5/6 disc protrusion as a result of the accident which “precipitated demyelination within the spinal cord”. He later added that “[t]rauma per se does not cause MS” though he believed it has “precipitated the onset of Ms Vandenberg’s first episode of symptomatic demyelination” and “therefore in an indirect way the current problem relates to her accident”. He said that, prior to the accident, Ms Vandenberg had no “symptoms whatsoever in respect of this”.
Dr Kam agreed with Dr Walker that trauma would have precipitated the symptomatic demyelination identified in the MRI scan and that the trauma to the cervical spine on 2 December 2007 was the reason for the acceleration of Ms Vandenberg’s symptoms.
Professor Fearnside accepted Ms Vandenberg’s history that she injured her neck and back in the work incident. He noted that the cervical spine surgery did not produce much in the way of improvement in her neurological symptoms. Dealing with the multiple sclerosis, he said that the causal relationship between the physical trauma and multiple sclerosis was outside his area of expertise, but he was aware that the causal relationship was “not settled in the medical literature” and that an argument exists as to whether physical injury can aggravate or accelerate the disease of multiple sclerosis.
In later reports, Professor Fearnside said that, as far as he was aware, there was no convincing evidence that trauma can cause multiple sclerosis, but there was some evidence that trauma “may unmask multiple sclerosis which was latent or asymptomatic or aggravate an established cause of multiple sclerosis”. He said that a lateralised C5/6 disc protrusion “can cause a partial Brown Séquard Syndrome”, though he did not think that the surgery had caused the Partial Brown Séquard Syndrome.
Dr Teoh diagnosed Ms Vandenberg to have a Chronic Adjustment Disorder with Depressed Mood, which had been aggravated by the incident at work.
In view of the issues involved, on 21 September 2012 the Arbitrator referred several questions to two separate Approved Medical Specialists (AMSs), Dr John O’Neill, neurologist, and Dr Julian Parmegiani, psychiatrist. Both AMSs provided non-binding Medical Assessment Certificates (MACs) on 9 November 2012, which were admitted into evidence without objection.
After an extensive review of Ms Vandenberg’s medical history, including her pre-accident history, Dr O’Neill concluded that she was suffering from multiple sclerosis and that her injuries on 2 December 2007 were “no more than soft tissue injuries” to the left knee, the chest and the right shoulder. He noted that she had “recovered well” by 20 February 2008 and was, by that stage, back to normal duties.
He said that the November 2008 MRI scan had been inaccurately interpreted as an altered signal within the cord and that the cervical surgery was “inappropriate”. He could find no causal relationship between the accident of 2 December 2007 and the development of a “relapse” in Ms Vandenberg’s (probable) multiple sclerosis, which began no earlier than April 2008. He said that his opinions generally concurred with those of Professor Lance and Dr Mellick (a neurologist qualified but not relied on by the Department because of the restriction on the number of experts who may be qualified in any one specialty) and that the other opinions were made in the absence of full factual information.
Dr O’Neill’s reference to the “full factual information” was a reference to the medical records from Dr Asar that revealed that, on 21 October 2002, Ms Vandenberg had complained of having woken with right arm numbness and weakness the previous Saturday. When she saw Dr Asar on 24 October 2002, the numbness had extended to the left half of the body and the left leg. On examination, there was a slight decrease in left arm power and sensation.
Dr Asar referred Ms Vandenberg to Dr Dowla, who saw her on 30 October 2002. On examination, Dr Dowla found no sign of any neurological illness. A somatosensory evoked potential was normal and this argued against a demyelinating process. (In his report of 13 July 2011, Dr Dowla said that Ms Vandenberg did not have similar symptoms for the next seven years until the accident in December 2007 and it was therefore “unlikely” that she had multiple sclerosis prior to the incident in December 2007.)
However, on 21 January 2004, Ms Vandenberg saw Dr Asar complaining of a sudden onset of right hemiparesis that was getting worse. His notes recorded that it was similar to the 2002 complaint, which resolved in six months. Ms Vandenberg was limping, with a weak right leg. Dr Asar prescribed medication and referred Ms Vandenberg to Westmead Hospital, where she was admitted for three days and was seen by Dr Walker.
On 27 September 2007, Ms Vandenberg saw Dr Asar with blurred vision over the last three months, the right more than the left. She was seen by Dr Benjamin who obtained a history of “spots and shadows in the right upper temporal field over a seven week period prior to presentation”.
Dr O’Neill said that it would be accepted in the wider neurological community that Ms Vandenberg’s immune/inflammatory disorder of the nervous system could not have been caused or materially aggravated by the type of soft tissue trauma experienced by her on 2 December 2007, especially given the fact that, in retrospect, the disease was already evident and there was a delay of at least four months between the soft tissue injuries and the relapse of the condition.
Dr O’Neill added that there was an aggravation of Ms Vandenberg’s neurological condition immediately after the “inappropriate” surgery of 9 December 2008, but that would not have occurred if there had not already been a pre-existing inflammatory disease of the nervous system, presumably multiple sclerosis, which was known to “relapse” after spinal surgery. He said that Ms Vandenberg’s employment was not a substantial contributing factor to any of her alleged “neurological injuries”. (By “inappropriate” the doctor meant “not reasonably necessary as a result of any injury sustained in the course of [Ms Vandenberg’s] employment on 2 December 2007”.)
Dr Pamegiani issued a MAC on 9 November 2012 in which he concluded that Ms Vandenberg developed a number of psychological symptoms after she was diagnosed with multiple sclerosis in April 2009. He diagnosed her to have an Adjustment Disorder with Mixed Anxiety and Depressed Mood, a secondary psychiatric injury that resulted from a physical injury, namely, multiple sclerosis.

THE ARBITRATOR’S DECISION

After a two day arbitration on 14 and 15 October 2013, at which the Arbitrator heard oral evidence from Ms Vandenberg, Mr Bourke, Mr Lloyd and Professor Lance, the Arbitrator delivered an oral decision on 17 October 2013 in which he found:
(a)     that Ms Vandenberg injured her lumbar spine, cervical spine, and her left lower extremity in the incident on 2 December 2007 and that her employment was a substantial contributing factor to those injuries;
(b)     that she did not suffer injuries of multiple sclerosis, Brown-Séquard Syndrome or Partial Brown-Séquard Syndrome, or foot drop on 2 December 2007 or as a result of the cervical spine surgery, and
(c)     her psychological condition had been caused by her multiple sclerosis and it was not compensable.

The Commission issued a Certificate of Determination on 18 October 2013 in the following terms:
“The Commission determines:

1. The Applications to Admit Late Documents filed by the [Department] on 5 June 2012, 7 June 2012 and 22 April 2013, and filed by [Ms Vandenberg] on 25 June 2012, 25 September 2012 and 5 March 2013, are granted together with Medical Assessment Certificates dated 9 November 2012 by Dr John H O’Neill and Dr Julian Parmegiani and the documents are admitted into evidence.
2. The Commission finds that [Ms Vandenberg] suffered injuries to her Lumbar Spine, Cervical Spine and Left lower Extremity on 2 December 2007 in the course of her employment with the [Department] and that [Ms Vandenberg’s] employment with the [Department] was a substantial contributing factor to such injuries.

3.   The Commission finds that [Ms Vandenberg] did not suffer injuries of Multiple Sclerosis, Brown Sequeter [sic] Syndrome or Partial Brown Sequeter [sic] Syndrome, or Foot Drop on 2 December 2007 and/or surgery in the course of her employment with the [Department] and that [Ms Vandenberg’s] employment with the [Department] was not a substantial contributing factor to such injuries.
4.   The Commission finds that [Ms Vandenberg] did not suffer a psychological/psychiatric injury in the course of her employment with the [Department] and that [Ms Vandenberg’s] employment with the [Department] was not a substantial contributing factor to such injury.
5. The [Department] shall pay [Ms Vandenberg’s] reasonable expenses under section 60 of the Workers Compensation Act 1987 on production of accounts, receipts or Medicare/HIC charge including (but not limited to) in respect of the C5/6 surgery by Dr Kam.
6.   There shall be an Award in favour of the [Department] in respect of the claims for injuries of Multiple Sclerosis, Brown Sequeter [sic] Syndrome or Partial Brown Sequeter [sic] Syndrome, and/or Foot Drop on 2 December 2007 and/or surgery.

7. There shall be an Award in favour of the [Department] in respect of psychological/psychiatric injury.
8. I find that the effects of [Ms Vandenberg’s] injuries to her back, neck and left leg have not resolved and are continuing and that she has been partially, but not totally incapacitated, because of those injuries. However under ss (including) 32A, 36, 37 and 39 of the Workers Compensation Act 1987 as amended by the Workers Compensation Legislation Amendment Act 2012 [Ms Vndenberg’s] entitlement to weekly compensation pursuant to s40 will cease on 31 December 2012. But she [sic] if she is certified a ‘seriously injured worker’ she may further be entitled to weekly compensation from 1 January 2013 under the legislative amendments.

9. Under s40, having regard to Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37, and noting that [Ms Vandenberg] was not an ‘existing recipient’ on/or about 1 October 2013 and she may have already received 130 weeks of compensation the parties shall negotiate in good faith to determine and agree on the quantum of weekly compensation payable from 21 February 2011 to 31 December 2012. Failing agreement the parties have liberty to request the Registrar to list the matter for a telephone conference.
10. The remaining issue in dispute between the parties is whether [Ms Vandenberg] has permanent whole person impairment of her Lumbar Spine, Cervical Spine and Left Lower Extremity that results from injuries on 2 December 2007.

11. The matter is remitted to the Registrar for referral to an Approved Medical Specialist.
12. The Approved Medical Specialist shall be requested to provide an assessment of the degree of whole person impairment that results from the injuries sustained by [Ms Vandenberg] to her Lumbar Spine, Cervical Spine and Left Lower Extremity (but excluding the effects of Multiple Sclerosis) of [sic] on 2 December 2007.
13. The documents to be sent to the Approved Medical Specialist are those accepted into the proceedings, being the Application to Resolve a Dispute and all attached documents, the Reply and all attached document, together with documents attached to the parties’ Applications to Admit Late Documents and the Medical Assessment Certificates referred to in paragraph 1 above.

14. The [Department] shall pay [Ms Vandenberg’s] costs as agreed or assessed.

15. I certify this matter complex pursuant to Schedule 6 of the Workers Compensation Regulation 2010 for [Ms Vandenberg] and the insurer, as it involved issues of injury including an exploration/research of a long history of alleged prior disease and injuries by both parties, multiple claims, multiple body parts, 3 telephone conferences, and particularly complex medical issues entitling the parties to 30% uplift.

16. Costs to be also treated as separate resolutions of neurological, psychological and orthopaedic issues.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

Both parties have appealed.
Ms Vandenberg has challenged the Arbitrator’s findings with respect to the multiple sclerosis, the Brown-Séquard Syndrome, the Partial Brown Séquard Syndrome and her psychological condition. The Department has challenged the findings with respect to the cervical spine and lumbar spine. Both appeals were heard together.
After dealing with certain preliminary matters, I will deal first with the Department’s appeal and then Ms Vandenberg’s appeal.

PRELIMINARY MATTERS

Interlocutory

As the Arbitrator’s decision with respect to the neck and back was interlocutory, because it has not finally determined the worker’s rights to compensation on that issue (Licul v Corney [1976] HCA 6; 180 CLR 213 at 224–225), but merely decided the preliminary liability issue, leave is required for the Department’s appeal. In view of the issues raised in the appeal, I have determined that it is necessary for the proper and effective determination of the dispute that the Commission grant leave to appeal and I do so order (s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43 at [13]).

Adjournment application and fresh evidence

After consultation with the parties on 10 February 2014, the Commission listed the appeal for an oral hearing on 13 March 2014.
On 3 March 2014, Ms Vandenberg filed with the Commission documents described as “new evidence”. She sought a teleconference “in relation to the Appeal Hearing scheduled for 13^th March”. The “new evidence” consisted of:
(a)     letters from Ms Vandenberg’s solicitors, McDonnell Schroder, to Dr Walker dated 25 November 2013, 12 December 2013, and 17 February 2014;
(b)     letters from Dr Walker to McDonnell Schroder dated 17 December 2013 and 18 February 2014, and
(c)     clinical records from Westmead Hospital relating to Ms Vandenberg’s admission to that hospital in January 2004 because of right sided weakness.
The notes from Westmead Hospital record that Dr Walker’s impression was that Ms Vandenberg’s condition was a “stress related conversion disorder”. In his report of 23 October 2008, he said he could not easily explain Ms Vandenberg’s symptoms “on any sound neuro-anatomical basis”. He suggested that Ms Vandenberg obtain a neurosurgical opinion about her cervical spine and he referred her to Dr Kam. In a report dated 13 February 2009, Dr Walker said that Ms Vandenberg complained of numbness in the left side of her body and in her right fingers and toes. He said that Ms Vandenberg “had a fairly obvious functional left hemiparesis”.
On 5 March 2014, McDonnell Schroder filed with the Commission a letter applying to vacate the appeal hearing on 13 March 2014 and requesting that the matter be listed for teleconference for that purpose.
On 6 March 2014, McDonnell Schroder filed with the Commission an Amended Application – Appeal Against Decision of An Arbitrator (the Amended Appeal) which sought leave to tender as fresh evidence or additional evidence the documents listed at [40] above.

The Amended Appeal included submissions by Ms Vandenberg’s legal advisers to the following effect:
(a)     the nature of Dr Walker’s treatment before the injury on 2 December 2007 was an important matter concerning the causation, triggering and or aggravation of Ms Vandenberg’s neurological conditions of multiple sclerosis and/or Partial Brown Séquard Syndrome and the need for post-injury surgery;
(b)     Dr Walker had referred Ms Vandenberg to Dr Kam to consider surgical options after the injury of 2 December 2007;
(c)     Ms Vandenberg’s legal advisers had conferred with Drs Kam and Dowla before the arbitration and both doctors “had agreed to attend the Hearing and give oral evidence concerning Dr Walker’s pre-injury treatment [of Ms Vandenberg] and its significance to the questions of causation of the neurological conditions and the need for surgery and other relevant matters”;
(d)     immediately prior to the arbitration, Drs Dowla and Kam advised they were unable to attend unless “arrangements were made before the Hearing of their costs of that day at $6,000 each”. Ms Vandenberg was unable to meet those costs and the arbitration proceeded with only the employer’s qualified specialist (Professor Lance) giving oral evidence;
(e)     after the arbitration, Ms Vandenberg, through her solicitor, sought a report from Dr Walker to address “the matters of his pre-injury treatment and its relevance to the questions of causation and the need for surgery”. Dr Walker provided a report on 18 February 2014 which deals with the questions of causation and the need for surgery;
(f)      Dr Walker’s report of 18 February 2014 was favourable and required “further evidence to be obtained supportive of an application to allow the reception of both the recent report and additional fresh evidence in [Ms Vandenberg’s] case”, and
(g)     Ms Vandenberg gave instructions to seek an adjournment of the appeal to allow “further relevant evidence to be obtained in the light of the recent report”.
The Commission listed the matter for teleconference at 9 am on 11 March 2014.
On 10 March 2014, Ms Vandenberg’s solicitor, Anthony McDonnell, filed a statement with the Commission by email. In addition to the matters already noted at [44] above, Mr McDonnell said:
(a)     the Department’s medical evidence was that the operation by Dr Kam was not necessary and did not result from the work injury, and that Dr Kam would not have operated had he been aware of the earlier treatment;
(b)     at the arbitration, Professor Lance gave evidence that Dr Kam would not have operated had he known of the treatment provided “by the applicant worker in 2004” (it was agreed at the teleconference that “applicant worker” should have been “Dr Walker”);
(c)     Ms Vandenberg gave oral evidence that Dr Walker had treated her at Westmead Hospital in 2004 and that he reminded her of that when she saw him in 2008, prior to him referring her to Dr Kam;
(d)     he had sought, on 12 December 2013, a report from Dr Walker seeking his confirmation of seeing Ms Vandenberg in 2004 and “to deal further with Professor Lance’s evidence at the [arbitration] Hearing”. After receiving Dr Walker’s reply of 17 December 2013, indicating that he had no record of seeing Ms Vandenberg before 2008, Mr McDonnell wrote to him on 17 February 2014 enclosing a copy of the Westmead Hospital clinical records for Ms Vandenberg’s admission in January 2004 (which recorded that Dr Walker saw her in hospital at that time);
(e)     Dr Walker wrote on 18 February 2014 acknowledging that he had seen Ms Vandenberg at Westmead Hospital in January 2004 and expressing the opinion that (the hospital notes) indicated a history of “conversion disorder”;
(f)      Mr McDonnell sought Ms Vandenberg’s instructions as to whether she wished to apply to vacate the appeal hearing date of 13 March 2014, “if necessary to allow reliance on Dr Walker’s recent report” and, if appropriate, “to obtain further comment from Drs Kam and Dowla”;
(g)     Ms Vandenberg gave instructions to apply to vacate the appeal hearing date to “obtain a further and fuller opinion from Dr Walker on the questions of: his pre-injury treatment of her: its relevance to the issue of any alleged pre-existing neurological disorder; its relevance to the question of Dr Walker’s referral to Dr Kam; and the operation that Dr Kam performed”;
(h)     he did not envisage the “late requirements made by Drs Dowla and Kam so close to the [arbitration] Hearing”, and
(i)      once he had Ms Vandenberg’s instructions to apply for an adjournment to allow fresh evidence to be relied on he made every endeavour to keep both the Commission and the Department informed of the application to adjourn “for the purpose of relying on fresh evidence”.
At the teleconference on 11 March 2014, counsel for Ms Vandenberg, Mr Nicholson, read Mr McDonnell’s statement onto the record and made submissions in support of the adjournment application. Counsel for the Department, Mr Flett, opposed the adjournment.
Before ruling on the adjournment application, I pointed out the long history of this matter. That history includes, so far as is relevant to the application for an adjournment:
2 April 2007                date of injury
23 July 2010                Employers Mutual denied liability for the condition of multiple sclerosis
8 November 2010        Employers Mutual denied liability for hospital and medical expenses and for weekly compensation
16 February 2012        Application to Resolve a Dispute filed with the Commission
2 April 2012                teleconference with Arbitrator Nolan (directions for production issued)
17 May 2012                teleconference with Arbitrator Nolan (directions for production issued)
17 September 2012      request for assessment of a general medical dispute by an AMS
21 September 2012      amended request for assessment of general medical dispute by AMS
28 September 2012      assessment by AMS (Dr O’Neill)
9 November 2012        MAC issued by Dr O’Neill
30 January 2013          post MAC teleconference with Arbitrator Nolan
14–15 October 2013     arbitration hearing
17 October 2013          oral decision by Arbitrator Nolan
18 October 2013          Certificate of Determination issued by the Commission
14 November 2013      appeal lodged by the Department
15 November 2013      appeal lodged by Ms Vandenberg
18 November 2013      amended appeal lodged by the Department
Given the long history of this matter, and given that Ms Vandenberg had every opportunity to present her case at the arbitration, but did not seek an adjournment of the arbitration to call further evidence from either Dr Dowla, Dr Kam or Dr Walker, I refused the adjournment and confirmed the hearing date. Mr Nicholson’s application to rely on Dr Walker’s additional reports as fresh evidence or additional evidence on appeal was left to be argued at the hearing.
In addition to the brief reasons given at the teleconference, I add the following additional reasons for refusing the adjournment application:
(a)     the matter has been before the Commission since February 2012 and has been the subject of extensive case management at several teleconferences;
(b)     the clinical notes from Westmead Hospital were available to both sides well before the arbitration and Ms Vandenberg had every opportunity to send those notes to her doctors prior to the arbitration;
(c)     Ms Vandenberg was well aware, before the arbitration took place, that Professor Lance had considered the pre-injury symptoms, he having expressed a view about them in his report of 29 February 2012. It follows that his oral evidence was not a surprise or new;
(d)     Mr Nicholson made no application to adjourn the arbitration so he could have his doctors comment on Professor Lance’s evidence, in light of their unavailability to give oral evidence;
(e)     the adjournment was sought to gather evidence that was effectively evidence in reply and an appeal is not an opportunity to seek to call evidence in reply;
(f)      to the extent that the adjournment was sought to obtain additional evidence, Mr Nicholson offered no satisfactory explanation as to why that evidence was not tendered at the arbitration;
(g)     contrary to Mr McDonnell’s assertion in his statement, in his letter of 25 November 2013 to Dr Walker he did not ask Dr Walker to address questions of causation and the need for surgery. He merely asked Dr Walker to “confirm that when he saw Ms Vandenberg in 2007 [sic, 2008]” that he recalled her previous history and consultations. Consequently, Dr Walker’s responses on 17 December 2013 and 18 February 2014 did not deal with questions of causation. On 18 February 2014, he merely stated that the hospital notes helped to explain Ms Vandenberg’s “left sided ‘weakness’ that [he] felt was functional when he saw her in February 2009 as it seems apparent that there was a history of conversion disorder” referred to in those notes. That statement did not advance Ms Vandenberg’s case on appeal;
(h)     whether Dr Kam would have operated had he known of Ms Vandenberg’s pre-injury history is not relevant to the resolution of the issues in this case. The operation has been performed and the insurer has met the costs involved. Even if it were accepted that (in hindsight) the operation was “inappropriate”, the Department is liable for the consequences of that surgery, assuming it was undertaken in good faith as a result of the injury on 2 December 2007, and there is no suggestion that it was not. The authorities are clear that if, as a result of a work injury, a worker, acting reasonably on the advice of a competent and qualified medical practitioner, undertakes a course of treatment that makes the worker’s condition worse, he or she will be entitled to compensation for the worsened condition (Fire & Rescue NSW v Hayman [2012] NSWWCCPD 66 at [56], citing Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321 and Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 529–530). It follows that the fact that Dr Kam may not have operated if he had known of Ms Vandenberg’s pre-injury symptoms makes no difference to the Department’s liability for the consequences that have resulted from that surgery. On the question of whether the surgery was reasonably undertaken, I note Dr Kam’s opinion in his report of 19 November 2012 that, based on the information he had at the time and the history of trauma, followed by appropriate investigations related to trauma, he saw no issues “with regards to the diagnosis made and the subsequent surgery that [he] recommended and performed”. I note also Professor Lance’s oral evidence that he had no criticism of the decision to operate (T64.44) and that he “quite understood” (T68.1) why Ms Vandenberg ultimately came to operation;
(i)      the application for an adjournment was an application to seek more time to gather evidence that could and should have been obtained prior to the arbitration, and
(j)      I was not satisfied that the proposed additional evidence, as outlined by Mr Nicholson, was such that its exclusion would cause any (let alone a substantial) injustice to Ms Vandenberg.
Turning to the application to rely on the additional evidence listed at [40] above, the additional evidence sought to be tendered was, with reasonable diligence, available prior to the arbitration and Ms Vandenberg has offered no satisfactory explanation as to why it was not obtained at that time. There is nothing in that material that advances Ms Vandenberg’s case or undermines the Department’s case. In these circumstances, the refusal to admit the evidence will not cause any injustice to Ms Vandenberg. The grounds for the admission of fresh evidence or additional evidence on appeal in s 352(6) of the 1998 Act have not been established and the application is refused.

THE DEPARTMENT’S APPEAL

The Arbitrator’s reasons in summary

The Arbitrator noted (at [14]) that Ms Vandenberg’s claim form only mentioned that, while assisting nursing staff with a fitting inmate, she was kicked in the chest, forcing her, knee first, into a concrete wall, and that she injured her left knee, groin, right shoulder arm and chest. He also recorded that the 48 Hour form, completed by someone from the Department on 3 December 2007, only recorded that Ms Vandenberg had received “several kick[s] to [her] chest”.
The Arbitrator said (at [25]) that Ms Vandenberg told physiotherapists in January 2008 of pain in her neck and back. He added that that evidence, together with the evidence from her general practitioner, Dr Asar, who issued a WorkCover medical certificate on 2 January 2008 diagnosing a soft tissue injury to the neck and back, tended to corroborate her “claim with respect to the neck and back”.
Referring to submissions by Mr Flett that Dr Asar’s certificates (apart from the certificate dated 2 January 2008) only referred to soft tissue injuries and a tender left knee, the Arbitrator said, at [33]:
“33. However, I noted that Ms Vanderberg [sic] reiterated [in her oral evidence] that she reported all over pain, consistent with having [suffered a] neck and head and back injury on the 2^nd December 2007. Although, on the 2^nd February 2008 [sic, 2 January 2008] is the first WorkCover medical certificate to formally refer to the neck and back pain. But the multiple soft tissue phrase was used by Dr Asar and not by Ms Vanderberg [sic], and that was an elicited answer on re-examination by Mr Nicholson.”
The Arbitrator accepted the evidence of Ms Vandenberg, Mr Bourke and Mr Lloyd that she had complained to them on the day of the injury “about body parts, including the neck, head, right shoulder and back” ([40]). He said Mr Flett had not challenged this, though he had them confirm that that was all they recalled. The Arbitrator said that that evidence “corroborates the injury to the neck and back on the 2^nd December 2007” ([41]).

Next, dealing with the evidence from Professor Lance the Arbitrator said, among other things, that Professor Lance “opined” that the “violence and force of the incident of 02/12/2007 caused injury to the neck and back” ([212]).

Grounds of appeal

The Department alleges that the Arbitrator erred in that he:
(a)     made incorrect findings of fact in relation to complaints made by Ms Vandenberg to medical practitioners (including physiotherapists) (contemporaneous complaints and medical histories);
(b)     determined that the medical histories corroborated Ms Vandenberg’s claim (that she injured her neck and back on 2 December 2007) (contemporaneous complaints and medical histories);
(c)     accepted and relied on unreliable evidence from Mr Bourke and Mr Lloyd (Mr Bourke and Mr Lloyd’s evidence);
(d)     failed to determine that the contemporaneous evidence, including medical evidence, supports a finding that Ms Vandenberg did not injure her neck or back in the subject incident (failure to determine that Ms Vandenberg did not injure her neck and back);
(e)     made incorrect findings of fact in relation to Professor Lance’s oral evidence (Professor Lance’s evidence), and
(f)      determined that Professor Lance’s evidence supported a finding that Ms Vandenberg injured her neck during the subject incident (Professor Lance’s evidence).
Save for point (d), which I will deal with last, I will deal with the above issues in the order in which they are listed.

Submissions

Mr Flett submitted that:
(a)     prior to late 2008, it was only on one occasion that Ms Vandenberg complained of pain in her neck and back, and that was in January 2008;
(b)     the Arbitrator erred in finding that there was evidence of any complaints of neck and back pain to a physiotherapist;
(c)     the Arbitrator ought to have placed more weight on the fact that there was (apart from the mention in January 2008) no mention made by Ms Vandenberg of pain in her neck and back, despite many medical consultations;
(d)     the Arbitrator led himself into error by relying on “one notation” (by Dr Asar) and the “unsupported” evidence from Ms Vandenberg that she made complaints to physiotherapists which, in any event, were made one month after the accident;
(e)     the claim form and 48 Hour Form made no mention of injury to the neck;
(f)      the Arbitrator led himself into error by relying on the evidence from Mr Bourke and her son because their statements made no reference to complaints of pain in the knee, which was inconsistent with the bulk of the evidence. Accordingly, the evidence from Mr Bourke and Mr Lloyd ought to have held little weight and ought not to have been relied upon by the Arbitrator;
(g)     contrary to the Arbitrator’s finding, Professor Lance did not say that Ms Vandenberg “must have” injured her neck during the incident. He accepted, in cross-examination, that a violent forceful incident was something capable of causing significant trauma to Ms Vandenberg’s cervical spine and that he had expressed the opinion in his report of 17 February 2012 that the incident was “relevant as a cause for the increasing pain in [Ms Vandenberg’s] neck” (T67.12);
(h)     at most, Professor Lance was of the opinion that the incident was capable of causing injury to the neck and back;
(i)      that Professor Lance accepted that Ms Vandenberg suffered from pain in her neck and back must be viewed in light of the time at which he consulted her and in light of what he said the incident was capable of causing;
(j)      the opinions of Professor Fearnside, Dr Conrad and Dr Walker were, at most, the same as Professor Lance’s in that they believed the incident was capable of causing injury to the neck. That was not primary evidence of the alleged fact;
(k)     Dr Walker saw Ms Vandenberg on 23 October 2008 and took a history of injuries to her back and chest wall and that she was off work until March 2008 and was then on light duties. It was not until July 2008, on Dr Walker’s history, that she noticed numbness in the left side of her body;
(l)      Dr Kam was the first doctor to take a history of injury to the head. He also recorded that she had two months off work and tried to return to full duties and noticed increased symptoms involving her neck and then noticed numbness involving her left upper extremity, discomfort that would radiate towards the left elbow and that her left foot would drag. Mr Flett submitted that this history was inconsistent with the previously recorded histories;
(m)   the Arbitrator failed to give weight to objective evidence, such as the Blacktown Hospital records, the notes from Dr Asar, the 48 Hour Form, the claim form, and Dr Smith’s evidence, and
(n)     there is insufficient evidence to support a finding that Ms Vandenberg sustained injury to her neck and back in the incident.
Essentially, Mr Flett’s argument was that Ms Vandenberg’s story, in relation to whether she had injured her neck, became “more perfect” over time and that, one should look at what was recorded in 2007 and 2008 to see where the truth is.
Mr Nicholson submitted that it was necessary to view the evidence in total. He said the Arbitrator accepted that the incident was “truly violent and forceful” ([132]) and that it was more than merely a soft tissue injury. He added that the Arbitrator accepted Ms Vandenberg’s evidence that the she had tried to tell Dr Asar that she had injuries in addition to the injury to her knee and he was entitled to do so.

Discussion and findings

Contemporaneous complaints and medical histories

The Arbitrator was well aware that the claim form, the 48 Hour Form, the Blacktown Hospital notes, and the notes from Dr Asar made no mention of Ms Vandenberg having injured her back and neck in the incident on 2 December 2007 and he expressly referred to Mr Flett’s cross-examination on those documents and the other medical records that did not refer to neck symptoms until November 2008. However, the Arbitrator also referred to Ms Vandenberg’s evidence that, immediately after the incident, she had “lots of bruising and pain and took painkillers” ([16]).
The Arbitrator was aware that it was not until 2 January 2008 that Dr Asar recorded neck and back injuries in a WorkCover medical certificate of that date. He considered that the recording of those injuries “a mere one month after the date of injury” to be “sufficiently contemporaneous and related back to the date of injury in the overall scheme of workers compensation cases” ([17]).
The certificate of 2 January 2008 was not contemporaneous with the incident, but was contemporaneous with Ms Vandenberg’s attendances on Dr Asar for treatment of the injuries caused by the work incident. The certificate provided corroboration of Ms Vandenberg’s evidence that she had complained to Dr Asar that she injured her neck and back on 2 December 2007. That fact is not diminished by the absence of a reference to neck and back symptoms in the doctor’s notes for 2 January 2008. Indeed, it tends to suggest that the doctor’s notes are not a complete record of Ms Vandenberg’s complaints. That is especially so in circumstances where there was no evidence that Ms Vandenberg had injured her neck and back in some other (non-work) situation, something the Arbitrator alluded to at [157] where he said, after referring to Dr Smith’s evidence that the cervical disc prolapse was not work related, “what else caused it otherwise?”
The certificate of 2 January 2008, which referred to Ms Vandenberg having injured her neck and back, and the other contemporaneous records, which did not refer to any neck or back injury, had to be read with Ms Vandenberg’s oral evidence on 14 October 2013, which was:
(a)     she had a specific recollection of pain in her left knee, chest, right shoulder and neck at the hospital but added that she did not recall telling anyone at the hospital about it (the neck pain) (T11.23–33);
(b)     she could not specifically recall her complaints at the hospital, but she was in pain and she said she was “in pain everywhere it hurt” (T11.50);
(c)     she recalled telling Dr Asar she had pain in her right shoulder going up to her neck and wasn’t sure if it was coming from her neck (T14.7);
(d)     she told Dr Asar on most of her visits that she had pain in “various areas” and Dr Asar “insisted that multiple soft tissue injuries take a long time to heal” (T16.16), something he told her “every time” (T16.21) she went to him;
(e)     she told Dr Asar on nearly every occasion that she still had “pains and issues and headaches” (T17.21);
(f)      she knew she was getting physiotherapy for her neck so she must have said something to Dr Asar (about her neck) prior to November 2008 (T19.12);
(g)     she was sure she told several people she had pain in lots of places, the most specific was her knee (T21.15);
(h)     she told Dr Asar on 2 January 2008 that she had “pain that felt like it was coming from [her] shoulder up to [her] neck and down [her] back” (T36.46);
(i)      she asked Dr Asar about the bump on her head and said (to him) that she remembered she had hit the stool (T37.3);
(j)      in response to whether she recalled what she told Dr Asar about her neck on 2 January 2008, Ms Vandenberg said that she recalled telling him that she hit her head (T38.28);
(k)     in response to whether she had any particular recollection of whether she told Dr Asar about any problems concerning her neck after 2 December 2007 and 2 January 2008, Ms Vandenberg said that she recalled telling him that she still hurt in lots of places and that his response was always “you had multiple soft tissue injuries” (T38.52);
(l)      she never said she suffered “multiple soft tissue injuries” (T40.25), they were the doctor’s words;
(m)   she “basically said all the time everything hurt, [she] hurt everywhere, [she] was black and blue everywhere. [She] just told him [she] had lots of pains, [she had] pains everywhere, shoulder, neck, back, bum - he didn’t put bum anywhere at any time” (T40.42), and
(n)     she reported to Mr Bourke and Mr Lloyd about the state of her head and neck following the accident (T48.51).
The Arbitrator referred to part of this evidence (at [19]), when addressing Mr Flett’s submissions about the absence of any reference to neck and back symptoms in Dr Asar’s notes. The Arbitrator said, “Ms Vandenberg reiterated orally [that] she complained of pain everywhere, yet Dr Asar only recorded multiple soft tissue injuries, which he said take a lot of time to recover from”. He added (at [33]) that Ms Vandenberg reported “all over pain, consistent with having neck and head and back injury on the 2^nd December 2007”.
Consistent with an acceptance of Ms Vandenberg’s evidence, the Arbitrator said (at [206]) that she had “properly reported to doctors the neck and back injuries”. Having heard and seen Ms Vandenberg give oral evidence, the Arbitrator was entitled to accept, and did accept, her evidence that she did complain to Dr Asar of her neck and back symptoms. This was evidence he was entitled to take into account in determining if Ms Vandenberg injured her neck and back on 2 December 2007.
The Court of Appeal has regularly observed that inconsistencies between a party’s evidence and medical histories in clinical notes should be approached with caution (Mason v Demasi [2009] NSWCA 227 at [2]). In the present case, the inconsistency between Dr Asar’s notes and Ms Vandenberg’s evidence was explained by her evidence that she recalled telling the doctor about right shoulder pain going up to her neck, that she “hurt everywhere”, and that his response was that “multiple soft tissue injuries take a long time to heal”. The Arbitrator was entitled to accept that explanation and, clearly, he did accept it.
Dealing with the discrepancy between the clinical records from Blacktown Hospital and Ms Vandenberg’s evidence, the Arbitrator noted (at [87]) Mr Nicholson’s submission, which he apparently accepted, that the doctors at the hospital would only have “generically recorded soft tissue injuries, as would be expected,” so it was not unexpected that their records did not specifically refer to any injuries to the neck and back.
Similarly, dealing with the absence of a record in Dr Asar’s notes of neck and back symptoms, the Arbitrator accepted (at [216]) that Ms Vandenberg tried to tell her doctors about her all over body pain, including the neck and back pain, but “the doctors clinically seemed to have given her short shift [sic] in their busy medical practice reviews”. He added (at [218]) that he did not give much weight to the “emission [sic, omission] from the clinical notes or hospital reports of specific reference to her neck and back injuries, due to doctors, generally, especially in hospitals, being too busy to record all”. The Arbitrator was entitled to consider these matters when determining whether to accept Ms Vandenberg’s evidence.
Turning to the evidence about the physiotherapy, I do not accept that the Arbitrator erred in finding that there was evidence of complaints of neck and back pain to a physiotherapist (though the Arbitrator twice referred to “physiotherapists”, and it seems that Ms Vandenberg only saw one physiotherapist (Elizabeth Hudson), but nothing turns on this discrepancy). The Arbitrator referred to physiotherapy at several parts of his decision. At [25], he said:
“25. She first, however, according to the papers, told physiotherapists [sic] in January 2008 of pain in the neck and back. This, together with Dr Asar’s report, tends to corroborate her claim with respect to the neck and back.”
At [82], when dealing with Mr Flett’s submission that Ms Vandenberg did not suffer any direct trauma to her neck, the Arbitrator referred to the “reporting to the physiotherapist that she told about the injuries to the neck. So I believe there’s sufficient corroborative evidence”.
When considering the evidence of Dr Dowla, that Ms Vandenberg had a violent episode on 2 December 2007, with impact on a hard surface, and had a C5/6 disc protrusion, which the Arbitrator said was consistent with the opinions of Dr Walker, Professor Lance and Professor Fearnside, the Arbitrator again (at [100]) referred to Ms Vandenberg having had treatment by physiotherapists. The relevance of the reference to physiotherapy at this part of the Arbitrator’s decision is unclear.
The Arbitrator also (at [119]) referred to Professor Fearnside’s evidence (at page 13 of the Application to Resolve a Dispute (the Application)) that Ms Vandenberg returned to work on light duties on 17 March 2009 and, after work, saw a physiotherapist for treatment for her low back, which had, according to Professor Fearnside’s history, continued since the original injury, though the focus of the treatment had been on her neck and left knee. During the physiotherapy treatment, the physiotherapist heard a pop in Ms Vandenberg’s low back and she experienced low back pain.

Last, the Arbitrator referred to physiotherapy at [206] where he said:
“206. Ms Vanderberg, in my respectful view, properly reported to doctors the neck and back injuries. In particular, at the very least, on the 2nd January 2008 Dr Asar recognised this in a WorkCover medical certificate and it also appears that a physiotherapist recognised it as well.”
Ms Vandenberg gave the following oral evidence relating to her physiotherapy:
(a)     she was having physiotherapy by 2 January 2008 (T14.20);
(b)     on 30 January 2008, she told Dr Asar that she was continuing to have physiotherapy and was slowly improving (T15.26);
(c)     in response to the suggestion that, apart from 2 January 2008, the first mention she made to Dr Asar of her neck was on 7 November 2008, Ms Vandenberg said, “I can’t recall. I do know that I was getting physiotherapy for my neck, so I must have said something to him prior to that” (T19.12), and
(d)     when asked about when she first told a doctor about striking her head on a metal stool in the incident, Ms Vandenberg said “I actually think I told the physiotherapist first” (T28.3).
Ms Vandenberg also said, at [40] of her statement dated 7 July 2011, that from approximately the date of the accident Elizabeth Hudson performed physiotherapy on her neck and back, her right shoulder and left knee. Though she did not say how long the physiotherapy continued, she said the insurer had paid for it. In an extensive and detailed cross-examination, Mr Flett did not challenge any of the propositions in this evidence.
While the Arbitrator did not expressly refer to Ms Vandenberg’s written statement when referring to the evidence relating to physiotherapy, his reference to “according to the papers” (see quote at [71] above) is consistent with Ms Vandenberg’s statement that Ms Hudson had performed physiotherapy on her neck and back and that, logically, she had complained to the physiotherapist of symptoms in those parts of her body. This interpretation is consistent with Ms Vandenberg’s evidence in cross-examination and provided a sound basis for the Arbitrator’s statement (at [25]) that Ms Vandenberg had told “physiotherapists [sic] in January 2008 of pain in her neck and back”.
The Arbitrator’s statement (at [206]) that “it also appears” that “a physiotherapist recognised it as well” was not accurate. Though there is evidence from Dr Asar, in his certificate of 2 January 2008, which expressly referred to neck and back injuries from the December 2007 incident, there is no evidence from a physiotherapist to that effect.
However, given the evidence from Ms Vandenberg dealing with physiotherapy and, in particular, the evidence of when she had that physiotherapy and which parts of her body were treated, which the Arbitrator accepted, his statement that “it also appears that a physiotherapist recognised it as well” must be read as an acceptance of Ms Vandenberg’s evidence that she had received physiotherapy treatment in late 2007 and early 2008 for her neck and back. It is a reasonable inference that the physiotherapist would not have provided that treatment if she had not believed, consistent with Ms Vandenberg’s evidence, that those symptoms had been caused in the work incident in December 2007.
It follows that, once the evidence and the Arbitrator’s reasons are examined in context, it was open to the Arbitrator to conclude that Dr Asar’s notes, together with Ms Vandenberg’s (unchallenged) complaints of having had physiotherapy treatment for her neck and back in late 2007 and early 2008, “tend to corroborate her claim”. Though it would have been preferable if a report had been obtained from the physiotherapist, Ms Vandenberg’s evidence that she had physiotherapy to her neck and back shortly after the incident, and that the insurer paid for that treatment, provided a sound basis for the Arbitrator’s conclusion.
The complaint that the Arbitrator should have placed more weight on the fact that there was (apart from the certificate of 2 January 2008) no mention by Ms Vandenberg of pain in her neck and back in any of the medical records was based on the evidence that Ms Vandenberg saw Dr Asar on many occasions between 2 December 2007 and November 2008 and his notes made no reference to any neck or back symptoms until November 2008.
While it is correct that Dr Asar’s notes did not refer to neck or back pain until November 2008, whether the Arbitrator erred in accepting Ms Vandenberg’s evidence requires an assessment of all the evidence. The Arbitrator was acutely aware of the issue in the case and referred extensively to the parties’ submissions on it.
In the end, having heard and seen Ms Vandenberg give evidence, the Arbitrator accepted her evidence that she had complained to Dr Asar, and others, about her neck and back symptoms in late 2007 and early 2008 and accepted that she injured those parts of her body on 2 December 2007. The submission that the Arbitrator erred because he should have given more weight to the absence of complaints in the documentary evidence was, in the circumstances of this case, unpersuasive and did not establish that the Arbitrator erred on this point.

I do not accept the submission that the Arbitrator led himself into error by relying on “one notation” (by Dr Asar) and the “unsupported” evidence from Ms Vandenberg. That submission was an oversimplification of the evidence. The Arbitrator was entitled to place significant weight on the WorkCover medical certificate of 2 January 2008 because it was independent written evidence that corroborated Ms Vandenberg’s account.
Moreover, Ms Vandenberg’s evidence was not “unsupported” (by that expression I have assumed that counsel meant “uncorroborated”). The evidence from her then partner (Mr Bourke) and her son (Mr Lloyd), discussed further below, corroborated her evidence that she had injured her neck and back.
Mr Flett also referred to the evidence from Dr Fox and observed, as he had before the Arbitrator, that Dr Fox had no history that Ms Vandenberg had injured her neck. However, he did not submit how the Arbitrator erred in his handling of this evidence. I have assumed that this point is part of the general complaint that the Arbitrator erred in not finding that Ms Vandenberg had not injured her neck and back.
Ms Vandenberg saw Dr Fox on 8 September 2008, having seen her some years earlier for a left knee problem. In his report to Dr Asar of the same date, he took a history that Ms Vandenberg had been kicked in the chest by an inmate and was “flung across the room” and struck her (left) knee against a concrete wall. She had several weeks off work with a combination of “knee, chest and shoulder related problems” all relating back to the 2 December 2007 injury. In a WorkCover medical certificate issued on 8 September 2008, Dr Asar diagnosed “Lt knee injury” and certified Ms Vandenberg unfit for 9 and 10 September 2008 and fit for suitable duties from 11 September 2008 to 22 September 2008.
The Arbitrator referred to Dr Fox’s evidence at [38], among other places, and recorded that “[w]hen [Ms Vandenberg] saw Dr Fox she did not mention the fall and that she was thrown across the room, nor about the neck”. The statement that Dr Fox had not recorded that Ms Vandenberg had been thrown across the room was incorrect, but nothing turns on this error. However, it was correct that Dr Fox recorded no history of Ms Vandenberg having injured her neck or back on 2 December 2007.
The Arbitrator returned to Dr Fox’s evidence at [90], [202] and [215]. Essentially, on the basis of Dr Fox’s evidence that the incident caused internal derangement of the left knee, the Arbitrator accepted that the incident was “severely violent” ([90]). While it was open to the Arbitrator to find that the incident was violent, which was a factor in his overall assessment of the claim, that finding was not determinative of whether Ms Vandenberg injured her neck and back.
At the appeal hearing, Mr Nicholson made the valid point that, given that Ms Vandenberg saw Dr Fox for her knee, it was hardly surprising that he focused on the knee. I accept that submission. In any event, Ms Vandenberg gave evidence that she told Dr Fox she had other pains (T18.4–7). It follows that I do not accept that Dr Fox’s evidence supports a conclusion that the Arbitrator erred in the manner alleged by Mr Flett. It was one of many factors the Arbitrator had to assess, and did assess, in determining if Ms Vandenberg had injured her neck and back.
Dealing with the evidence from Dr Walker, Mr Flett’s point was that Dr Walker only took a history of injury to the back and chest wall, but not of an injury to the neck. The Arbitrator noted that submission (at [24]), but concluded (at [93]) that Dr Walker supported a claim “of C5/6 disc protrusion related to the violent and forceful events of the 2^nd December 2007”. This conclusion was open to the Arbitrator and was consistent with Dr Walker’s report of 15 May 2009, where he said that he believed Ms Vandenberg “suffered a C5/6 disc protrusion as a result of her original injury”.
Mr Flett also referred to the history recorded by Dr Smith, which was that Ms Vandenberg had (only) been kicked in the chest and kicked to the left and hit her left knee on a concrete wall. The Arbitrator referred (at [22]) to Mr Flett’s submissions about this history and added that he “recall[ed] from the evidence that [Ms Vandenberg] gave that she, in fact complained, but she said Dr Smith did not want to listen about injuries to the neck and back and other places”.
The oral evidence on this point starts at T25.49:
“Q. And locking, thank you. What I’m suggesting, you made no complaint to [Dr Smith] about the problems about your neck.
A. I recall he was an orthopaedic surgeon and told me that he was only interested in my knee.
Q. Okay, thank you. Now
A. Because he - I actually tried to tell him about my head and he said, I’m only interested in your knee. And then he told me I had a problem with my hip.”
Thus, while the Arbitrator’s statement (at [22]) was not a completely accurate summary of Ms Vandenberg’s evidence, her evidence provided an explanation for Dr Smith’s incomplete history, which was the point the Arbitrator was endeavouring to make, bearing in mind that he did not have a transcript of proceedings when he gave his decision.
Moreover, Mr Flett’s complaint on appeal was not that the Arbitrator inaccurately recounted Ms Vandenberg’s evidence, but that Dr Smith was another doctor who did not have a history of Ms Vandenberg injuring her neck and back and therefore the Arbitrator erred in finding that she did. I do not accept that submission.
Dr Smith’s history called for an explanation. Ms Vandenberg gave an explanation, the essence of which was that she tried to tell Dr Smith about her head but he told her he was an orthopaedic surgeon and therefore only interested in her knee. It was not submitted that anything turns on Ms Vandenberg’s reference to her head in this answer. From the cross-examination, it seems that Mr Flett regarded injury to the head and injury to the neck as virtually synonymous. For example, it was put to Ms Vandenberg at T27.25–38 that she did not mention problems with her “head or neck” to either Dr Asar or Blacktown Hospital.
Turning to Dr Kam’s evidence, Mr Flett complained that Dr Kam’s history, that Ms Vandenberg bumped her head quite heavily on the concrete, was inconsistent with the other histories of what happened on 2 December 2007 and the Arbitrator erred in accepting Dr Kam’s evidence that she did suffer an injury to her head and neck.
Dealing with the injury to Ms Vandenberg’s head, the Arbitrator said (at [32]) that Ms Vandenberg gave evidence that she told Dr Asar she had bumped her head from striking a stool, (at [40]) that she told Mr Bourke and Mr Lloyd that she had injured her head, and (at [72]) she was “propelled across the room into a concrete wall and apparently hitting her head on a fixed metal stool and/or concrete wall”. These statements were consistent with the evidence and disclosed no error.
The Arbitrator expressed his conclusion, at [202]:
“202. Ms Vanderberg [sic] was, in my view, subjected to numerous kicks to her chest, she was flung across a hard prison cell room surface, struck her head on either a concrete wall or a fixed stool, fell onto her posterior and suffered widespread bodily and head trauma and bruising. As well as Dr Fox saying she had left knee derangement, indicating just how great a force had occurred in that incident, which seems to have been overlooked by the respondent’s doctors and including Dr O’Neill.”
This finding was consistent with Ms Vandenberg’s evidence, which was open to the Arbitrator to accept and he did accept. It follows that the Arbitrator’s acceptance of Dr Kam’s evidence did not involve any error.

Mr Bourke and Mr Lloyd’s evidence

Mr Bourke gave evidence in a statement dated 14 October 2013 (apparently prepared during the lunch break on the first day of the arbitration). He described himself as Ms Vandenberg’s partner, though at the time he gave evidence they lived separately. At the time of the accident, he lived with Ms Vandenberg and worked with her as a prison officer at Parklea Gaol. He said he drove her to Blacktown Hospital on 2 December 2007. After returning from the hospital, he remembered Ms Vandenberg complaining about “parts of her body including [her] neck, head, right shoulder and back”. He specifically recalled her complaining about her neck up to her neck operation in 2008. In cross-examination, Mr Bourke said that body parts he mentioned exhausted his recollection.
Mr Lloyd is Ms Vandenberg’s adult son who was 21 when he gave evidence, but had just turned 16 on the day of the injury. He also gave evidence in a statement dated 14 October 2013, prepared at the same time as Mr Bourke’s statement. He said that he remembered the date of his mother’s accident because it was his birthday. He was living with her at the time and remembered her complaining about her neck, right shoulder, head and other parts of her body. He said she complained about her neck from the date of the accident until her neck operation in 2008.
In cross-examination, Mr Lloyd agreed that his recollection in October 2013 of things that happened in 2007 was “nowhere near as good” (T55.3) and that the complaints that he set out in his statement were the ones that he remembered Ms Vandenberg complaining about.
At the arbitration, Mr Flett drew the Arbitrator’s attention to the evidence from Mr Bourke and Mr Lloyd, and highlighted that their statements made no mention of the “principle [sic] injuries” (that is, they did not refer to the chest and left knee injuries). He then submitted, at T10.18 – 15 October 2013:
“But the only submission that I make is that, on their limited recollection they seem to remember that which was set out in their document, but not necessarily those that were the principle complaints at that stage. And I don’t put it any higher than that.”
The Arbitrator (at [73]) noted Mr Flett’s submission and said that Mr Flett had “attempted to downgrade the value of that evidence”. The Arbitrator (at [42]) stated, referring to the evidence from Mr Bourke and Mr Lloyd, that “[t]his corroborates the injury to the neck and back on 2^nd December 2007”.
At [217], the Arbitrator said:
“217. I also accept she told her partner and son of injury to her neck and back the night of the event. It is almost, res ipsa loquitur, bleedingly [sic] obvious, to me, as an independent arbitrator.”
The fact that the statements from Mr Bourke and Mr Lloyd did not mention Ms Vandenberg’s knee or chest symptoms did not mean that the Arbitrator was bound to reject their evidence. Their evidence corroborated Ms Vandenberg’s evidence that she had complained about those parts of her body. In the circumstances, given the brief cross-examination of Mr Bourke and Mr Lloyd, and the equally brief submissions about their evidence, it was open to the Arbitrator to accept their evidence.

Professor Lance’s evidence

The next complaint is that the Arbitrator’s findings about Professor Lance’s opinion were materially incorrect. The substance of the complaint is that Professor Lance did not say that Ms Vandenberg “must have” injured her neck in the incident, but merely accepted that a violent forceful incident was something capable of causing significant trauma to Ms Vandenberg’s cervical spine. This error is said to have affected the result because the Arbitrator appears to have relied on Professor Lance’s evidence to support his conclusion that Ms Vandenberg did injure her neck and back on 2 December 2007.
Professor Lance’s evidence must be considered in the context of his report of 17 February 2012, on which he was cross-examined. In the second last paragraph on page two of that report, Professor Lance said:
“In summary, the injury sustained on 2 December 2007 was almost certainly the cause of increasing neck and low back pain and pain in her left knee but there is no evidence that she sustained significant trauma to the cervical cord at that time. The balance of probabilities is that the lesion at the C5 level of the cervical cord was the forerunner of multiple sclerosis and was present before the injury of 2 December 2007.” (emphasis added)
Mr Nicholson asked Professor Lance about this paragraph, starting at T66.25:
“Q. You’re correct professor and I do want to take you to that particular paragraph [in the report of 17 February 2012]. Whilst we’re seeking to find our copy of it I’ll just ask you this. In that report it seems to me that you are stating that you did not - you were not persuaded there was evidence that the patient had sustained significant trauma to her cervical cord at the time of the accident.
A. To the cord no, but she certainly has of the spine.
Q. Yeah. Now I want you to assume for the moment that certainly within a few weeks of the accident her GP had made a reference and issued a medical certificate that she was complaining of neck pain.
A. I’m quite prepared to accept that.
Q. And that there is evidence - and assume for the moment that the evidence of what occurred in the incident was that an inmate who was being held down for a procedure in the course of that fitted, that the patient was forcefully kicked in the body and thrown across the room and into a wall and then, on her own account, fell to the ground receiving further injuries. Now even though I’m not suggesting that you, this far after the event when you saw her, could form the opinion of whether or not she did or did not have a traumatic injury to her cervical cord at that time, that sort of violent forceful incident is something which would have been capable of causing significant trauma to her cervical spine. Would you accept that?
A. Yes, yes.
…
Q. So [in] the second last paragraph of the second page of the report [of 17 February 2012], you express the opinion that that incident was relevant as a cause for the increasing pain in her neck.
A. Yes I accept that.” (emphasis added)
The Arbitrator made the following findings about Professor Lance’s evidence:
(a)     Professor Lance accepted that Ms Vandenberg had pain in her neck on the date of the incident ([50]);
(b)     that acceptance by Professor Lance supported Ms Vandenberg’s claims for injury to the neck and back ([50]);
(c)     Professor Lance said that the incident on 2 December 2007 involved “such violence and force to have caused trauma to the cervical spine and the back” ([51]);
(d)     this tended to prove the “liability” of the Department as this was also opined by Professor Fearnside, Dr Conrad and Dr Walker ([52]);
(e)     Professor Lance’s oral evidence was that the incident “was so violent and forceful that [Ms Vandenberg] undoubtedly injured her neck and back in the many kicks to her body and [in] being propelled across the room into a concrete wall and apparently hitting her head on a fixed metal stool and/or the concrete wall” ([72]);
(f)      the Department’s submission that Ms Vandenberg did not have direct trauma to the cervical spine, and so the surgery was not compensable, ignored the opinion of Professor Lance in his oral evidence that there was so much force in the traumatic event on 2 December 2007 that Ms Vandenberg “must have injured her neck and back” ([82]);
(g)     Professor Lance, in his oral evidence, recognised that Ms Vandenberg “suffered injury to the neck and back” ([91]);
(h)     he (the Arbitrator) agreed with Ms Vandenberg, as Professor Lance opined in his oral evidence, that the incident on 2 December 2007 “involved such violence and force to cause trauma to [Ms Vandenberg’s] cervical spine and back” ([205]), and
(i)      after noting (at [206]) that Ms Vandenberg had reported her neck and back injuries to doctors, the Arbitrator added (at [207]) “Professor Lance recognised such injuries in his oral testimony”.
It is correct that Professor Lance did not say that there was so much force in the event on 2 December 2007 that Ms Vandenberg “must have injured her neck and back”. However, as noted above, his oral evidence must be read in the context of his report of 17 February 2012, which formed the basis of the cross-examination on this point. When that is done, the following conclusions can be drawn from his evidence:
(a)     he believed that the injury on 2 December 2007 was “almost certainly the cause of increasing neck and low back pain” (see [110] above);
(b)     he was not persuaded that Ms Vandenberg had sustained significant trauma to her cervical cord at the time of the accident, but accepted that “she certainly has [sustained significant trauma] of the spine” (T66.32) (emphasis added);
(c)     the sort of violent forceful incident (experienced by Ms Vandenberg) on 2 December 2007 was something that would have been “capable of causing” (T66.53) significant trauma to Ms Vandenberg’s cervical spine, and
(d)     the incident on 2 December 2007 was relevant as a cause for the increasing pain in Ms Vandenberg’s neck.
Thus, though Professor Lance did not express himself in the terms used by the Arbitrator at [51], [72], [82] or [205], his evidence, viewed in the context of his report of 17 February 2012, provided strong support for the Arbitrator’s conclusions at [50], [91] and, ultimately, at [207], that Ms Vandenberg injured her neck and back on 2 December 2007. That evidence was in emphatic terms, namely, that the injury on 2 December 2007 was “almost certainly the cause of increasing neck and low back pain”. That statement was consistent with his acceptance that the force of the incident on 2 December 2007 was “capable of” causing significant trauma to the cervical spine and that she had in fact sustained significant trauma of the spine at that time.
Given the history in this matter, and given Ms Vandenberg’s evidence that she had pain everywhere immediately after the incident, including her neck and back, which the Arbitrator accepted, it was open to the Arbitrator to conclude that, based on Professor Lance’s evidence, Ms Vandenberg injured her neck and back on 2 December 2007. That is so despite the fact that Professor Lance did not expressly say that Ms Vandenberg must have injured her neck and back because the incident involved so much force.
Moreover, the Arbitrator’s reference to Professor Lance referring to the incident as a violent and forceful event was not without support in the evidence. In his report of 22 June 2010, Professor Lance took a history that Ms Vandenberg had been kicked in the chest and legs on 2 December 2007, which threw her “forcibly against a concrete wall, hitting her left knee, followed by falling backwards on her coccyx then hitting her head on a stool”.
It follows that the Arbitrator’s partly inaccurate reference to Professor Lance’s oral evidence makes no difference to the outcome. A fair reading of the evidence reveals that, as the Arbitrator held, Professor Lance supported Ms Vandenberg’s claim that she injured her neck and back on 2 December 2007.
The complaint about the Arbitrator’s acceptance of the evidence from Dr Conrad and Professor Fearnside (dealing with the neck and back injuries) raises the same argument Mr Flett presented with respect to Professor Lance’s evidence and it is convenient to deal with those complaints at this stage. The complaint is that, like Professor Lance’s evidence, Dr Conrad and Professor Fearnside only said that the incident was capable of causing injury to the neck. I do not accept that submission.
Dr Conrad examined Ms Vandenberg on 22 December 2009 at the request of her solicitor and provided a report on 23 December 2009. He took a history of the accident and that Ms Vandenberg had been kicked in the chest, catapulted backwards, struck her left knee on a concrete wall, and she “impacted her back and then her head hit a fixed metal stool in the cell”.
After referring to the surgery by Dr Kam, and other matters, Dr Conrad said that Ms Vandenberg had “undoubtedly” “sustained a severe C5/6 disc prolapse, which caused flattening of the cord” for which she needed surgery. He said an opinion would be needed from her consultant neurologist as to whether there is any nexus between her injury and the subsequent cervical spine surgery and the onset of multiple sclerosis.

The Arbitrator’s “reasons” on the multiple sclerosis issue are, in the main, a discursive and, in parts, inaccurate, summary of the parties’ submissions and the evidence. The only paragraphs where it is arguable that the Arbitrator has attempted to give reasons for his conclusions are [142], [143], [144], [178], [198], [200] and [208]. It is appropriate to set these paragraphs out in full:
“142. But at best, Dr Dowla is saying there may be a trigger.
143. And Dr Walker has talked about an indirect effect.
144. Both of these I consider to be somewhat equivocal.
…
178. But these opinions [by Dr Dowla and Dr Walker] are a little tentative in the way they have been expressed, and equivocal, but collectively, highly persuasive.
…
198. Although in my view, I tend to prefer the opinions of Professor Lance, Dr O’Neill and Professor Fearnside in the circumstances of this matter and I tend to give them more weight, in view of the fact that their opinions are based upon scientifically controlled tests of no connection with trauma.
…
200. Accordingly, whilst MS cause is a difficult medical issue, in my respectful view, the collection of opinions for the respondent and Professor Fearnside, outweigh those of Dr Dowla and Dr Walker on the issues of MS.
…
208. And I must say, I found Professor Lance a very impressive witness.”
The Arbitrator’s statement (at [144]) that the evidence from Dr Dowla was “equivocal” was inconsistent with his statement (at [107]) that Dr Dowla “considered unequivocally” that the multiple sclerosis was related to the incident and (at [137]) that Dr Dowla opined that it is “well known that multiple sclerosis can be triggered by physical trauma”.
In a report to Ms Vandenberg’s solicitor dated 31 May 2010, Dr Dowla repeated the history he had previously recorded about the incident on 2 December 2007. Under “Opinion”, he said:
“Ms Toni Vandenberg suffered [a] neck injury in a gaol while assisting an inmate on 2.12.2007. The effect of the injury was that surgery was required at C5 6 level. She also subsequently suffered transverse myelitis which is a separate entity and appear[s] to be stable. Following the injury she developed neck pain [and] numerous neurological symptoms as described above. The causal relationship between the physical trauma and the transverse myelitis is difficult to ascertain and whether or not the transverse myelitis was made worse as a result of physical trauma cannot be established beyond doubt. She is permanently unfit to return to pre-injury work. Her employment to [sic] corrective services [sic] is a substantial contributing factor to her injury and disability. She has shown progression of neurological symptoms and signs although there is no significant radiological progression so far.”
Dr Dowla added, in an addendum dated 30 June 2010, presumably responding to a letter (not in evidence) from Ms Vandenberg’s solicitor:
“The causal relationship between the physical trauma and the transverse myelitis is difficult to ascertain but I believe physical trauma could be a substantial contributing factor to the worsening of the transverse myelitis.”
In a report to Ms Vandenberg’s solicitor dated 7 December 2010, Dr Dowla said his findings on examination were consistent with Partial Brown-Séquard Syndrome. He added:
“This manifestation is more consistent with the spinal trauma that she suffered on 2^nd December 2007 and explains her current condition. I also consider that the trauma may have triggered her underlying demyelination, in this particular case cervical cord hyperextension injury may have disrupted the blood-brain barrier and induced metabolic change.
My overall conclusion would be to support Partial Brown-Séquard Syndrome as a result of the cervical trauma she suffered in December 2007 as the predominant cause of the current clinical condition.” (emphasis added)
On 24 June 2011, Ms Vandenberg’s solicitor wrote to Dr Dowla asking him a series of questions on causation. The doctor replied on 13 July 2011 that he was “quite sure” (emphasis added) that the trauma to Ms Vandenberg’s head and neck on 2 December 2007 was the cause of the Partial Brown-Séquard Syndrome, and that he did not think the surgery in December 2008 caused the condition.
In a report dated 6 September 2011, Dr Dowla said:
“In relation to the question of the diagnosis of Multiple Sclerosis (hence referred to as MS) it is well known that Multiple Sclerosis can be triggered by physical trauma. For many centuries patients and physicians have dealt with the phenomenon that suggests that trauma may precede the onset of MS or may aggravate ongoing MS. Because of the variability of the cause of MS there is some controversy regarding the causation between physical trauma and onset of aggravation of MS. More recent studies have shown that trauma to the head and neck indeed bears a relationship to aggravation or of creation of MS. In an article in 2001 in the ‘European Journal of Neurolog [sic] (A Chaudhuri and Behan et al) the conclusion of the paper noted that like infection that will trigger MS symptoms only in a portion of patients (10% Mcalpine et al 1965 – 48% Stoley and Foley et al 1965) hyperextension of the cervical cord or hyperflexion injury is likely to cause or unmask or worsen the natural course of MS in a sub group of affected patients who may have been asymptomatic. The journal did not propose that physical trauma caused MS per se but by producing focal breaches in the blood brain barrier and inducing metabolic change by activating the stress response this may enhance and unleash critical changes in the level of inflammatory chemicals thus triggering MS symptoms or aggravating pre-existing latent disease. This notion was further backed up by another article published in the ‘Archives of Neurology’ in July 2000 by Dr Poser.
I would therefore suggest and support that if Mrs Toni Vandenberg had a latent Multiple Sclerosis this was triggered by the injury she suffered on the 2^nd December 2007 not necessarily from the surgery on the 8^th December 2008.
In my view the partial Brown-Séquard Syndrome normally do [sic] not preceed [sic] diagnosis of MS. In this particular case the trauma resulting [sic] in the partial Brown-Séquard Syndrome and the trauma then triggered the latent MS.
Therefore in my view the patient now suffers from both partial Brown-Séquard Syndrome and Multiple Sclerosis (transverse myelitis).
I hope this explanation will suffice but I would be happy to explain further if there is [sic] any further questions.”
If accepted, Dr Dowla’s evidence provided support for a connection between the work incident and the development of her neurological condition. To say, as the Arbitrator did at [178], that Dr Dowla’s opinion was “equivocal” and “a little tentative in the way” it was expressed was not an accurate summary of the doctor’s evidence and did not involve an adequate or fair analysis or consideration of the doctor’s opinion.
Nor was it accurate to say that “at best” Dr Dowla was saying that (the incident) “may be a trigger”. While Dr Dowla did say, in his December 2010 report, that the “trauma may have triggered her underlying demyelination” this had to be read with his 2011 report where he was “quite sure” that the trauma to Ms Vandenberg’s head and neck was the cause of the Partial Brown-Séquard Syndrome.
Dr Walker’s relevant evidence is found in his report of 15 May 2009 to the rehabilitation company retained by the insurer, Rehabilitation Concepts Pty Ltd. He wrote:
“I believe [Ms Vandenberg] suffered a C5/6 disc protrusion as a result of her original injury and that an episode of demyelination (inflammation) occurred within the spinal cord at that level at a later date. Demyelination occurring at the site of cord compression or injury is well recognised. This then became the first symptom in what appears to be an underlying disorder of Multiple Sclerosis. Prior to the accident she had no symptoms whatsoever in respect of this.”
Dr Walker then dealt with Ms Vandenberg’s prospects of returning to work, and added:
“Trauma per se does not cause MS though I believe it has precipitated the onset of her first episode of symptomatic demyelination as discussed above and therefore in an indirect way the current problem relates to her accident.” (emphasis added)

On 21 May 2009, Dr Walker responded to a facsimile from the insurer as follows:
“Ms Vandenberg’s original injury was in December 2007 when she was trying to help a gaol inmate who was suffering a seizure.
The symptoms of MS began some months after the actual injury. She suffered a C5/6 disc protrusion as a result of the accident in my opinion which has precipitated demyelination within the spinal cord. …
I believe the need for rehabilitation is a combination of the work injury and the subsequent development of MS.” (emphasis added)
Though the Arbitrator (briefly) referred to this evidence at [103], [175] and [176], his only comment or analysis about it was to say (at [144]) that it was “somewhat equivocal” and (at [178]) that it was “a little tentative in the way it was expressed”. Those comments did not properly deal with Dr Walker’s evidence or explain why it was rejected. A fair reading of Dr Walker’s evidence establishes that, rather than being “equivocal” and “tentative”, his opinion was unambiguous and certain.
Dr Walker felt that the C5/6 disc protrusion precipitated demyelination within the spinal cord. That is, it worsened the symptoms Ms Vandenberg experienced because of the multiple sclerosis. That opinion was not equivocal. If accepted, Dr Walker provided support for a conclusion that the incident aggravated or exacerbated the symptoms of multiple sclerosis. That is, it made Ms Vandenberg’s experience of the disease worse in the sense that it was “more grave, more serious” (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 per Windeyer J at 639). The Arbitrator did not deal with that possibility.
The Arbitrator seemed to think that Dr Walker’s opinion was “tentative” because the doctor said that trauma does not, per se, cause multiple sclerosis but it has, in this case, precipitated the onset of Ms Vandenberg’s first episode of symptomatic demyelination and that, “in an indirect way the current problem relates to her accident”.
Dr Walker’s reference to the incident indirectly relating to Ms Vandenberg’s problems was merely a non-lawyer’s way of saying that the incident caused an aggravation or exacerbation of the multiple sclerosis, though it did not cause the original condition. Of course, it would have been a great help if the doctor had been asked to express his opinion in the terms of the legislation. Though that was not done, that did not relieve the Arbitrator of his obligation to properly engage with the issues canvassed and to explain why one expert was accepted over the other (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA, cited in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 per Beasley JA at [133] (Basten JA and Macfarlan JA agreeing)).
A further problem with the Arbitrator’s statement at [178] is that it is internally inconsistent. If the Arbitrator felt that the opinions were “equivocal” and “tentative”, it was illogical and inconsistent for him to say that, “collectively”, they were “highly persuasive”. Equivocal means either “of uncertain significance” or “questionable; dubious; suspicious”. It is difficult to see how the evidence from Dr Walker and Dr Dowla could be both “equivocal” and “highly persuasive” and the Arbitrator did not attempt to explain this inconsistency.
The Arbitrator then posed the question of whether that (the evidence from Dr Walker and Dr Dowla) was enough for Ms Vandenberg to succeed on the balance of probabilities. There is considerable merit in Mr Nicholson’s submission that the Arbitrator did not properly address that issue.
The Arbitrator then referred to the evidence from Professor Lance, Dr O’Neill and Professor Fearnside. He said (at [182]) that there was a “long and controversial [sic] literature investigating the possibility of any relationship of the onset or exacerbation of multiple sclerosis by trauma”. The Arbitrator said that “relevant publications show there is no evidence of association between MS and trauma”.
While it is correct that the article relied on by Professor Lance, published in The Lancet by Jellinek in 1994, commented “[t]rauma as a primary cause of MS should no longer be mooted in the law courts but the possibility of concussion drawing attention to a previously clinically silent MS lesion cannot be ignored”, that was not the only evidence of “relevant publications” before the Arbitrator.
As noted at [150] above, Dr Dowla relied on research published in the 2001 in the European Journal of Neurology, which, he argued, supported his position. The Arbitrator referred to this evidence at [140], [141], [169] and [170]. At [140] and [141] the Arbitrator said:
“140. Nonetheless, Dr Dowla referred to an article in 2001, in the European Journal of Neurology. The conclusion of the paper noted that the infection that will trigger MS symptoms, only in a portion of patients, hyperextension of the cervical cord, or a hyperflexion injury, is likely to cause or unmask or worsen the natural course of MS in a sub group of affected patients who have been asymptomatic. The journal did not propose that physical trauma caused the MS, but by producing focal breaches in the blood brain barrier, and inducing metabolic change by activating the stress response, the MS, this may enhance and unleash critical changes in the level of inflammatory chemicals, thus triggering MS symptoms or aggravating pre-existing latent disease.
141. This notion was further backed up by another article published in the Archives of Neurology in July 2005 by Dr Posar.”
Rather than analysing the probative value of this evidence, at [169] and [170] the Arbitrator essentially repeated himself:
“169. Dr Dowla opined in relation to the question of the diagnosis of multiple sclerosis, it is well known that multiple sclerosis can be triggered by a physical trauma. In an article, and repeating, in an article in 2001, in the European Journal, the conclusion of the paper noted that like infection that will trigger MS symptoms, only in a portion of patients. Hyperextension of the cervical cord or hyperflexion injury is likely to cause or unmask or worsen the natural course of MS. In a sub group of affected patients who may have been asymptomatic, the journal did not propose that physical trauma causes MS, per se, but by producing focal breaches in the blood brain barrier and inducing metabolic change by activating the stress response, this may enhance and unleash critical changes in the level of inflammatory chemicals, thus triggering MS symptoms or aggravating pre-existing latent disease.
170. This notion was further backed by another article published in the Archives of Neurology in July 2000, by Posar.”
The Arbitrator seems to have dismissed this evidence by saying that, at best, Dr Dowla was saying that “there may be a trigger”, which opinion was “somewhat equivocal”. I have already explained why that did not properly deal with the doctor’s evidence (see [151]–[152] above).
At [171], the Arbitrator said “[s]o the trauma of 2 December 2007 did not itself cause MS, but, and all doctors agree on that, it was unmasked”. If the Arbitrator had formed the view that the incident on 2 December 2007 had “unmasked” the multiple sclerosis, he then had to consider if there had been a relevant aggravation, acceleration, exacerbation or deterioration of the disease, as pleaded by Ms Vandenberg.
The Arbitrator only dealt with the aggravation claim by reference to Dr O’Neill’s evidence that surgery can aggravate multiple sclerosis. Apart from the reference to aggravation in the pleadings, at [1] of the decision, the Arbitrator referred to aggravation at [45], [56], [108], [194] and [195].
At [45], the Arbitrator noted Dr Dowla’s evidence that there was no evidence of aggravation of multiple sclerosis by the cervical spine surgery. He also noted (at [55]) that Professor Lance stated unequivocally that scientific evidence was that trauma and surgery cannot “cause” multiple sclerosis and “there was no nexus between trauma, surgery and MS”.
At [56], the Arbitrator referred to Dr O’Neill’s evidence that there was an aggravation of Ms Vandenberg’s neurological condition immediately after the inappropriate surgery, but Dr O’Neill said this would not have occurred if there had not already been a pre-existing inflammatory disease of the nervous system.
At [108], the Arbitrator referred to Mr Nicholson’s submission that Dr O’Neill’s evidence accepted that Ms Vandenberg suffered an aggravation of her neurological condition immediately after the inappropriate surgery. The Arbitrator said, at [109]:
“109. However, my interpretation of that is that, yes, there was apparently a dormant MS, which seems to be the suggestions [sic] by most of the specialists, that MS was somehow in an autoimmune non symptom state in her body, but somehow, following that surgery, it seems to have been set off.”
This statement did not properly deal with Mr Nicholson’s submission that the surgery caused an aggravation of Ms Vandenberg’s neurological condition and that that aggravation was compensable because it resulted from the incident on 2 December 2007 (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796).
At [194], the Arbitrator essentially repeated the point he had made at [56]. He then said, at [195]:
“195. But I do not interpret that as Dr O’Neill saying that there was an aggravation of her condition by surgery or the accident, but merely a coincidence of events of a resurgence of the underlying MS, and awareness of the underlying MS. And as Dr O’Neill further stated, the worker’s employment was not a substantial contributing factor to any of the alleged neurological injuries.”
Dr O’Neill’s clear evidence was that there was an aggravation of Ms Vandenberg’s neurological condition immediately after the inappropriate surgery of 9 December 2008, but this would not have occurred if there had not already been a pre-existing inflammatory disease of the nervous system, in this case presumably multiple sclerosis, which is known to occasionally “relapse” after spinal surgery. Contrary to the Arbitrator’s statement, Dr O’Neill did not say, or imply, that the aggravation was “merely a coincidence of events”.
A further difficulty arises at [151] and [152] of the decision. At [151], the Arbitrator referred to Professor Lance’s evidence that he did not consider there to be any relationship between the surgery and Ms Vandenberg’s “currently diagnosed MS”. He added, at [152], that this was “agreed by all doctors”. That statement was incorrect and failed to properly deal with Dr O’Neill’s evidence.
As the above analysis demonstrates, Dr O’Neill said that the surgery had caused an aggravation of Ms Vandenberg’s condition. The real difficulty with that evidence, not addressed by the Arbitrator, is that Dr O’Neill did not explain the nature of the aggravation, whether it was continuing or merely temporary. Therefore, but for the other shortcomings in the Arbitrator’s decision on the multiple sclerosis issue, this error would not, on its own, justify the decision being revoked.
Mr Nicholson has criticised the Arbitrator’s statement at [198] (reproduced at [144] above and, for convenience, in the next paragraph) on two grounds: first, that the Arbitrator wrongly relied on Professor Fearnside as supporting Professor Lance and, second, that the Arbitrator did not adequately explain his reasons for reaching the conclusion expressed in that paragraph.
To fully understand the Arbitrator’s statement at [198] it is necessary to consider his statements starting at [196]:
“196. Added to this is Professor Fearnside’s opinion, and he was for the applicant, at page 18 of the ARD, that Toni Vanderberg [sic] injured her neck when she was kicked in the chest on 2 December 2007. But on MS, as the causal relationship between physical trauma and MS is outside my expertise, but added, I’m aware that the causal relationship is not settled in the medical literature. Arguments exist in the medical literature as to whether physical injury can aggravate or accelerate the disease of MS. And he added, as far as I’m aware there is no convincing evidence that trauma can cause MS. There is some evidence that trauma may unmask MS, which was latent and asymptomatic.
197. Hence, Professor Lance, Dr O’Neill and Professor Fearnside’s opinions are at the very least as persuasive of those of Dr Dowla and Dr Walker.
198. Although in my view, I tend to prefer the opinions of Professor Lance, Dr O’Neill and Professor Fearnside in the circumstances of this matter and I tend to give them more weight, in view of the fact that their opinions are based upon scientifically controlled tests of no connection with trauma.”

Dealing with Mr Nicholson’s first point, Professor Fearnside consistently said that the causal relationship between the physical trauma and multiple sclerosis was outside his area of expertise. He was aware that the causal relationship was “not settled in the medical literature” and that an argument exists as to whether physical injury can aggravate or accelerate the disease of multiple sclerosis. He subsequently added, as the Arbitrator noted, that as far as he was aware there was no convincing evidence that trauma can cause multiple sclerosis, but there was some evidence that trauma may unmask multiple sclerosis that is latent or asymptomatic.
Based on Professor Fearnside’s express caveat, namely, that the causal relationship between physical trauma and multiple sclerosis was outside his area of expertise, it was not open to the Arbitrator to group Professor Fearnside’s evidence with the evidence from Professor Lance and Dr O’Neill to find against Ms Vandenberg. It may have been open to the Arbitrator to use Professor Fearnside’s comment about the absence of convincing evidence that trauma can cause multiple sclerosis to give partial support for Professor Lance’s view, but that is not what he did.
Dealing with Mr Nicholson’s second criticism of [198], I agree that, in the circumstances of this case, where the competing experts both relied on research to support their opinions, it was not sufficient for the Arbitrator to say that he tended to prefer the opinions of Professor Lance, Dr O’Neill and Professor Fearnside and that he tended to give them more weight because their opinions were “based upon scientifically controlled tests of no connection with trauma”. That is especially so where the Arbitrator did not explain what he meant by “no connection with trauma” and where Professor Fearnside did not identify any scientifically controlled tests in his evidence.
If, by the expression “no connection with trauma”, the Arbitrator meant that scientifically controlled tests demonstrated that multiple sclerosis could not be aggravated by trauma (caused either by an accident or by surgery), he failed, as I have earlier noted, to consider properly the literature referred to by Dr Dowla. That was a significant failure in a case where Ms Vandenberg asserted, in the alternative, that her neurological condition had been aggravated or accelerated by the incident on 2 December 2007 or by the cervical spine surgery.
The last “reason” given by the Arbitrator was his statement at [208] that he found Professor Lance to be a “very impressive witness”. Though it is no doubt true that some expert witnesses will be more impressive than others, whether because of their qualifications, or for other reasons, the Arbitrator did not explain what it was about the Professor’s evidence that made him a very impressive witness.
In resolving conflicts of expert evidence, a coherent reasoned opinion by a qualified expert should be the subject of a coherent rebuttal, unless it can be discounted for other good reasons (Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77–8, cited and applied by Sheller JA (Beazley JA (as her Honour then was) Giles JA agreeing) in Moylan v The Nutrasweet Company [2000] NSWCA 337 at [66], and by Ipp JA (Bryson JA and Stein AJA agreeing) in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 at [62]; 60 NSWLR 127).
For the above reasons, I have concluded that the Arbitrator failed in his duty to explain adequately the basis for his conclusions on the cause or, more importantly, aggravation or exacerbation or acceleration of Ms Vandenberg’s neurological condition. In these circumstances, the process of fact finding has miscarried (McColl JA (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (at [130]–[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed).
As Ms Vandenberg wishes to tender further evidence on this issue, it is appropriate that the matter be remitted to another Arbitrator for this issue to be re-determined and that is the course I propose to adopt.

CONCLUSION

The result is that Ms Vandenberg’s appeal is successful and the Department’s appeal is not. It follows that the Arbitrator’s orders relating to and consequent upon the multiple sclerosis claim are revoked and must be re-determined before a different Arbitrator. This means that the orders in paragraphs 8 and 9 of the Arbitrator’s determination, which relate to Ms Vandenberg’s entitlement to weekly compensation, are also revoked and must be re-determined.
The orders relating to and consequent upon the injury to Ms Vandenberg’s neck and back are confirmed. While the orders referring the assessment of Ms Vandenberg’s whole person impairment to an AMS (orders 10 and 11) are confirmed, order 12, which excludes the multiple sclerosis from the assessment of any whole person impairment, is revoked pending the outcome of the re-determination. Similarly, order 13, which relates to the documents to be sent to the AMS, is also revoked pending the outcome of the re-determination.
The orders in paragraphs 4 and 7, which make an award for the Department in respect of the claim that Ms Vandenberg suffered psychological injury, were based on the Arbitrator’s finding that the multiple sclerosis was not related to the work incident or the cervical spine surgery. It follows that, as those issues must be re-determined, so too must the finding with respect to the psychological injury or condition. However, I note that, given the circumstances in which Ms Vandenberg’s psychological symptoms developed, namely, as a result of her physical injuries, it is difficult to see how the psychological condition can be a s 4 injury (see Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42]), but that is a matter to be determined at the next arbitration.
Paragraph 5 of the Arbitrator’s determination, which relates to the payment of hospital and medical expenses, is confirmed but, depending on the outcome of the re-determination, may need to be varied.

DECISION

Leave to appeal is granted to the Department under s 352(3A) of the 1998 Act.
Paragraphs 1, 2, 5, 10, 11, 14, 15 and 16 of the Certificate of Determination of 18 October 2013 are confirmed.
Paragraphs 3, 4, 6, 7, 8, 9, 12, 13 of the Certificate of Determination of 18 October 2013 are revoked and the issues in those paragraphs are remitted for re-determination by a different Arbitrator.

COSTS

The respondent employer is ordered to pay the appellant worker’s costs in appeal A1-1483/12, assessed at $2,530 plus GST.
The appellant employer is ordered to pay the respondent worker’s costs in appeal A2-1483/12, assessed at $2,530 plus GST.

Bill Roche
Deputy President

2 April 2014

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

ASSOCIATE