Visscher Caravelle Australia Pty Ltd v Shipley - [2024] NSWPICPD 58

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Visscher Caravelle Australia Pty Ltd v Shipley [2024] NSWPICPD 58
APPELLANT:	Visscher Caravelle Australia Pty Ltd
RESPONDENT:	Troy Shipley
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A2-W456/23
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	9 September 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 3 November 2023 is revoked. 2. The matter is remitted to another non-presidential member for re-determination in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – error of law through lack of procedural fairness; considering Muin v Refugee Tribunal [2002] HCA 30; 190 ALR 601; Re Minister for Immigration & Multicultural Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 – inability to find that the deprivation of procedural fairness could not possibly have produced a different result
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Nichols, solicitor
Hall & Wilcox Lawyers
Respondent:
Mr B McManamey, counsel
Chadwick Lawyers
DECISION UNDER APPEAL:	Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 585
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	3 November 2023

INTRODUCTION AND BACKGROUND

Mr Troy Shipley (the respondent) alleges that he was employed by Visscher Caravelle Australia Pty Ltd (the appellant) as a forklift driver unloading pallets from a shipping container on 31 January 2020 when he sustained injury to his back and neck. Any references in these reasons to the respondent’s “neck” are intended to include his cervical spine. The only aspect of this allegation disputed by the appellant is that the respondent sustained an injury to his neck and/or cervical spine.
There was a further incident where the respondent alleges injury to his back and neck on 2 July 2020. The appellant again disputes the respondent sustained any injury to his neck as a result of this incident.
The respondent eventually made a claim for approval to undergo anterior cervical decompression and fusion (the surgery). The appellant rejected this claim and the respondent commenced proceedings in this Commission, lodging an Application to Resolve a Dispute (ARD), seeking compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery.
The proceedings came before Member Wynyard who gave an award in favour of the appellant, issuing a Certificate of Determination on 19 May 2023.[1] The respondent appealed that determination, and the proceeding then came before Phillips P who made orders on 14 August 2023 revoking the determination of Member Wynyard. His Honour found that the absence of a transcript of the hearing before Member Wynyard prevented a proper consideration of the appeal.[2]
[1] Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 229.
[2] Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPICPD 46.
The proceeding then came before Member Homan who issued a Certificate of Determination on 3 November 2023,[3] finding the respondent did sustain a compensable personal injury to his cervical spine on 31 January 2020 and that the proposed surgery was reasonably necessary as a result of the injury on 31 January 2020 and that the appellant should pay the costs of and incidental to that surgery.
[3] Shipley v Visscher Caravelle Australia Pty Ltd [2023] NSWPIC 585 (reasons).
The appellant brings this appeal against the determination Member Homan.

ON THE PAPERS AND THRESHOLD MATTERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides that the Commission may exercise functions under that Act without holding any conference or formal hearing if satisfied sufficient information has been supplied. Having regard to Procedural Directions PIC2 and WC3, the documents and submissions before me, I am satisfied I have enough information to proceed ‘on the papers’ without holding any conference or formal hearing.
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The evidence comprised the ARD and Reply (with attached documentation), and three applications to admit late documents dated 16 March, 6 October, and 19 October 2023. At the hearing, the appellant lodged a letter of 3 October 2023 to the respondent’s treating general practitioner (GP), Dr Ayesha Yousaf, from Chadwick Lawyers. It is unnecessary to otherwise summarise the evidence here as this will be done in detail in the context of summarising the Member’s reasons. There is no criticism by either party about the content or adequacy of her summarising of that evidence.

THE MEMBER’S REASONS

The Member identified the disputed issues as, firstly, whether the respondent sustained an injury (pursuant to ss 4 and 9A of the 1987 Act) at his cervical spine in the events on 31 January 2020 and/or 2 July 2020, and secondly, whether the surgery is reasonably necessary as a result of injury for the purposes of s 60 of the 1987 Act.
The Member set out the evidence starting with respondent’s 27 July 2022 statement. She noted[4] he said that on 31 January 2020 he was moving pallets from a shipping container, stacked two high, when he noticed the bottom one was crushed, leaving the top one leaning sideways. Concerned it might fall, he tried to push it into a secure position and “felt a crack in my neck and pain in my left shoulder and mid and lower back”.
[4] Reasons, [17].
The Member noted the respondent said he ceased work immediately, experiencing pain in his neck, left shoulder and back, was attended to by an ambulance unit at the scene, conveyed to Blacktown hospital, discharged the same day into the care of Dr Yousaf, referred for physiotherapy, and prescribed Endone.
The Member noted[5] the respondent stating he resumed pre-injury duties in March 2020 but was experiencing pain in his neck, left shoulder and back, and was taking regular breaks to relieve his pain levels. She also noted[6] him stating that he then sustained sharp shooting pain in his neck, left shoulder, and mid/lower back, radiating down his left leg, when manually removing heavy boxes from the truck on 2 July 2020, and from [21] of the reasons that he continued to work during the following week, but with ongoing neck, left shoulder and mid/lower back pain.
[5] Reasons, [19].
[6] Reasons, [20].
The Member noted the respondent’s statement referred to following treatment from Dr Yousaf, including physiotherapy, and that he returned to employment on 20 August 2020, performing light duties which were aggravating his neck, shoulder and back. She also noted the respondent stated that on 16 October 2020 he told Dr Yousaf that he had ceased work due to unrelenting neck, left shoulder and back pain, and that he was referred to Dr Hsu.
The Member noted the detail of the respondent’s statement regarding further treatment, but relevantly from Dr Hsu in relation to his cervical spine/neck complaints, which included a CT guided injection into his cervical spine on 14 April 2021. She also noted him stating that he developed neck spasms on 25 April 2021, continuing for four days before he attended Ryde hospital and was given Endone. The Member then noted he stated that he was referred to a pain management specialist, Dr Alan Nazha, who arranged for him to be provided with a TENS machine (on 30 July 2021) and consultation with a chronic pain psychologist.
The Member noted[7] the respondent stating he continued to consult Dr Yousaf and Dr Hsu, who, on 27 October 2021 recommended he undergo the surgery.
[7] Reasons, [34].
The Member then noted the medical evidence, starting with the ambulance and Blacktown Hospital records on 31 January 2020, which she set out in detail at [37]–[40] of the reasons. She also detailed Dr Yousaf’s clinical notes of the respondent’s presentation on 3, 10, and 28 February 2020 which, relevantly, did not contain any reference neck/cervical spine symptoms. Then, the Member set out the full detail of Dr Yousaf’s 2 March 2020 clinical record,[8] including:
“… neck pain … initially neck pain was not much but now cervicogenic headaches … worse with walking … limited range of neck movements … has been getting pins and needles and numbness over right thumb area … did not have it prior to injury … tender at C2 area at the base of skull … reduced range of rotation …”.
[8] Reasons, [44].
The Member noted the respondent was then referred for radiological investigations including for his cervical spine, and that CT scan of that spine was reported to show “cervical spine degenerative changes, with mild canal stenosis C6/7 There is C7 and C8 foraminal narrowing, without definite neural impingement”.
The Member noted Dr Yousaf’s clinical notes next show the respondent presenting on 18 March 2020 with a history of him having gone to work the previous day but by “lunch time was on light duties with breaks after 4 hrs neck pain and pain behind back of leg …”; then again on 24 March 2020 when Dr Yousaf noted “improved range of motion of right arm left still limited because of pain”.
The Member next noted this record by Dr Yousaf on 10 July 2020:
“Patient was lifting large boxes at work, unloading a container on 2/7/20 … felt a sharp pain during lifting and then back pain started radiating down to left leg … SLR positive both sides … both L5 and T7–8 tender ++ … LL normal sensation … gait slow but normal”.
The Member noted[9] Dr Yousaf prepared various referrals after the 2 July incident, related to back pain with left-sided shooting leg pain, and that thoracic, lumbar, and left leg symptoms were noted at various consultations in the second half of 2020. She also noted[10] reports by a physiotherapist, Mr Philip Ting, and that his first (28 September 2020) report referred only to back pain after the 2 July 2020 incident. She also noted an undated report from Mr Ting which referred to the respondent reporting “alternating, worsening pain between his cervical spine, thoracic spine and lumbar spine/left leg. On examination … demonstrated varying amounts of pain and restrictions alternatively in his cervical spine and lumbar spine”.
[9] Reasons, [49].
[10] Reasons, [51] and [53].
The Member then noted[11] Dr Yousaf’s record of the respondent presenting on 2 November 2020 with “neck stiffness … physio appt last week – was unable to attend due to pain … has been in pain and feeling low … did not go to work on Wed …”.
[11] Reasons, [54].
The Member also noted Dr Yousaf referred the respondent to Dr Hsu who first reported on 27 November 2020, referring to back, not neck, symptoms until 29 December 2020 when he gave a diagnosis in a report to the insurer of “discogenic back pain and neck pain …”.
The Member noted[12] Dr Yousaf’s referral to Dr Nicholas Smith, orthopaedic surgeon, included a request for “opinion and management of left shoulder pain associated with neck pain and thoracic pain after a work cover injury”, and the history Dr Smith took from the respondent on 17 February 2021 regarding the January 2020 incident, which referred to back and shoulder, but not neck, pain being associated with that incident. However, she also noted that the respondent’s “potential pain generators include his cervical spine …”.
[12] Reasons, [62] and [65].
The Member also noted[13] the 28 January 2021 MRI scan of the cervical spine reporting to show degenerative changes “at C6/7 level where there is impingement of traversing left C7 nerve root”.
[13] Reasons, [64].
The Member then noted[14] that Dr Hsu reported on 18 February 2021 that some of the respondent’s left shoulder symptoms were likely related to his cervical spine “which correlates with the radiographic findings on the current MRI scan”. The Member also noted Dr Smith’s comments on 22 March 2021 included that he would await the recommendations of Dr Hsu regarding the respondent’s neck.
[14] Reasons, [67].
The Member noted[15] ambulance records on 29 April 2021 showing the respondent’s history of waking the previous morning with neck and back pain which worsened the previous night – which was “the same pain previously but it was worse this time”.[16] She also noted the 29 April 2021 discharge papers from Ryde hospital showed the respondent had presented with neck pain and decreased mobility due to pain.
[15] Reasons, [72].
[16] ARD, p 105.
The Member noted Dr Nazha said the respondent’s cervical pain was the most significant for him, and that he “found profound restricted range of motion in the cervical spine with fear avoidance behaviour”. She then noted[17] Dr Hsu’s report on 20 October 2021 that the pain management treatment had not been successful, the symptoms were still significant, a further cervical spine MRI on 24 August 2021 “demonstrate[d] significant disc pathology at C6-7 and C7-T1”, and that he then sought approval for the surgery.
[17] Reasons, [81].
The Member noted[18] a history taken by Dr David Duckworth, orthopaedic surgeon, on 29 November 2021, that the respondent “In January 2020 … had a work accident when pushing a pallet which collapsed and he felt an explosion from his neck, down his back and into his left shoulder … has had ongoing problems affecting his neck and shoulder since”. She also noted his opinion that he “recommended [the respondent] continue with the surgical plans under the care of Dr Hsu”.
[18] Reasons, [84].
The Member also noted[19] Dr Hsu said the respondent exhausted non-operative management and that surgical intervention was now necessary. She also noted[20] the letter of 3 October 2023 sent to Dr Yousaf by the respondent’s solicitor requesting a report (the 2023 letter) noting the instructions the solicitor received from him: that is, having neck pain since the injury on 31 January 2020 which had continued, and, following the subsequent incident, culminated in the referral to Dr Hsu.
[19] Reasons, [88].
[20] Reasons, [89].
The Member noted[21] Dr Yousaf’s opinion in response as follows:
“… the patient started having neck problems since injury in Jan, 2020 and later exacerbation of neck pain and stiffness after second injury that was not very obvious early, possibly due to back and thoracic pain being major sources of pain. This became clearer with further investigations and assessment by Dr Hsu and Dr Smith.
I agree with Dr Brian Hsu’s opinion regarding initial injury being the cause of neck problems and subsequent injury causing exacerbation of the neck injury. These two injuries were clearly at work and were due to lifting at work.
… There are no other known contributors of his neck pain”.
[21] Reasons, [90].
The Member noted the respondent’s reliance on a medicolegal report prepared by Dr Peter Bentivoglio, neurosurgeon on 9 May 2022, including that doctor’s history of the 31 January 2020 incident “in which the [respondent] reported neck pain and left shoulder pain trying to reposition a pallet on the forklift [and] … went to Blacktown hospital and underwent x-rays of his neck [and] … saw his local doctor the next day complaining of left-sided neck pain …”.
The Member noted[22] Dr Bentivoglio considered the cervical spine radiology and opined that the respondent had an exacerbation of pre-existing degenerative disease which had been asymptomatic before the 31 January incident, and the 2 July incident “reignited the neck pain going into the left shoulder”.
[22] Reasons, [95].
The Member also considered[23] the 17 February 2022 and 3 March 2023 reports of Dr Vidyasagar Casikar, neurosurgeon, firstly noting the history taken was consistent with that taken by Dr Bentivolglio. The Member noted that Dr Casikar diagnosed a constitutional cervical spondylosis with the history suggesting the main injury was of a soft tissue nature to the left shoulder.
[23] Reasons, [98]–[104].
The Member noted Dr Casikar’s view that the shoulder should be treated first, there being no evidence to support the surgery proposed by Dr Hsu, and with appropriate treatment to the shoulder, the neck pain would also resolve. She also noted Dr Casikar’s opinion that the cervical spondylosis “has not been aggravated by … employment … neck pain is … due to the shoulder condition and not due to the aggravation of the cervical spondylosis.”
The Member then noted the respondent’s submissions to her,[24] firstly that it was conceivable that the mechanism of injury on the basis of the respondent’s description would place a strain on his arms and neck, and while the contemporaneous medical evidence referred to a crack at the upper back, it may not have been easy for the respondent to be precise as to the location of that crack. She also noted the respondent referring her to Dr Yousaf’s records on 10 February 2020 “in which a reduced range of arm extension was noted”, and with no other explanation, such symptom was potentially related to the neck, with no allegation of injury to the shoulder then having been made.
[24] From reasons, [105].
The Member noted[25] the respondent’s reference to Dr Yousaf’s 2 March 2020 record, when neck pain was first reported, pointing out he was referred for a CT scan with respect to neck pain since the work injury, and that there were signs of radiculopathy.
[25] Reasons, [109].
The Member noted[26] the respondent putting that Dr Yousaf’s clinical notes were consistent with the content of her 4 October 2023 report, and that she was the only practitioner who had seen the respondent from the outset, and that the delayed reporting of symptoms was possibly due to the prominence of the back pain, but with further investigation it became clear that the neck was the source.
[26] Reasons, [113].
The Member noted the acknowledgment of the respondent that Dr Yousaf’s first referral to Dr Hsu referred to the back, not the cervical spine, and the respondent’s submission that this was consistent with Dr Yousaf’s evidence that the back initially appeared to be more significant. She noted the respondent’s point that Dr Duckworth thought the symptoms came from the neck, not the shoulder, and that the history he took was of symptoms following work events, with no other history or cause recorded for the neck symptoms.
The Member noted[27] the respondent put his case on the basis that he sustained injury to his cervical spine in January 2020, and that was aggravated in July 2020 – with both injuries being “frank incidents” pursuant to s 4(a) of the 1987 Act, and employment was a substantial contributing factor to the injuries pursuant to s 9A of the 1987 Act.
[27] Reasons, [118].
The Member also noted[28] the appellant’s submissions, starting with the point that degenerative conditions could run concurrently with, and be unrelated to, a workplace injury – the temporal coincidence of symptoms was not determinative. The appellant said the respondent’s histories had changed over time, for example, while histories taken by Dr Duckworth and Dr Bentivoglio were consistent with the respondent’s statement, that statement was prepared years after the relevant events.
[28] From reasons, [123].
The Member noted the appellant pointed to the account of the January 2020 incident in the ambulance records, describing a pop in the back with pain to the thoracic region; and it could be assumed that ambulance officers knew the difference between the thoracic and cervical spines. She also noted the appellant’s submission that the Blacktown hospital records showed the respondent was only referred for an x-ray of the thoracic spine, and he was recorded to have complained of mid thoracic pain rather than upper thoracic pain, and this also meant the history given to Drs Duckworth and Bentivoglio was incorrect.
The Member noted the appellant acknowledged that clinical records can be unreliable, but that in this case they consistently failed to contemporaneously record any cervical spine injury. The Member also noted the appellant’s submission that the mechanism of injury on 31 January 2020 did not clearly indicate involvement of the cervical spine.

The Member noted the appellant’s submission that from early 2021 onwards there was a clear record of symptoms in the cervical spine – but this was more than a year since the “first injury” and more than six months following the “second injury”. She also noted the appellant’s submission that the first reference to the neck after the “second injury” was in November 2020, and although Dr Yousaf said that the respondent complained of neck symptoms to his physiotherapist, such complaints were not apparent in the evidence.
The Member noted the appellant put that Dr Yousaf’s 4 October 2023 report was not consistent with her own record or the respondent’s statement, suggesting the cervical symptoms were not obvious at an early stage, due to the predominance of lumbar and thoracic pain: so Dr Yousaf was only agreeing with a theory proposed in the 2023 letter.
The Member noted[29] the appellant said Dr Bentivoglio’s opinion was based on history that was not supported by the contemporaneous evidence – including his reference to x-rays of the neck being taken at the hospital after the first incident, or a report of neck pain to Dr Yousaf the next day.
[29] Reasons, [139].
The Member noted[30] the appellant submitted that the respondent bore the onus of showing he sustained injury in either workplace event, and that he had a constitutional and or degenerative condition, and that no pathological change due to work incidents could be identified from the contemporary evidence.
[30] Reasons, [144].
The Member noted the respondent submitted in reply that the appellant’s submissions to her were premised on an assumption that the lack of mention of neck pain in the “treating reports” meant he did not have that pain. She also noted the submission that a feature of the hospital notes was that there was no examination of the cervical spine, and this was surprising given reports of upper back pain. She noted the submission that the hospital records confirmed the respondent’s pain was controlled by drugs such as Endone and morphine, so the history was taken from a “heavily drugged” person.
The Member noted it was clear on the medical evidence that the respondent had degenerative pathology at his cervical spine and that there was nothing in the evidence to suggest that pathology was symptomatic prior to 31 January 2020. She then noted the dispute as to whether that pathology was aggravated on 31 January or 2 July 2020, and that the respondent’s statement was consistent with the histories he provided to Drs Bentivoglio and Casikar – “a sudden onset of very significant pain to his cervical spine in both events”, with the appellant saying such history was not borne out in the evidence.
The Member noted that the ambulance and hospital records for the January 2020 incident consistently described complaints of pain in the thoracic region of the back and some altered sensation in the right leg – with no reference to any cervical spine symptoms. She also noted the hospital records suggested the respondent’s upper limb neurological examinations were normal, also noting that contrary to what Dr Bentivoglio understood there was no evidence of radiological investigations of the cervical spine.
Similarly, the Member noted that the first record of Dr Yousaf, on 3 February 2020, also described injury to the upper back, not the neck, and that although no upper limb symptoms were then observed, a reduced range of arm extension was noted on 10 February 2020. The Member also noted a similar presentation to Ms Barton, physiotherapist, on 28 February 2020, and that Ms Barton’s treatment focused on the thoracic spine. But the Member also noted the respondent “did report occasional headaches to Ms Barton”, which had been a feature of the respondent’s “more recent evidence”. She also noted that neck symptoms were clearly described by Dr Yousaf on 2 March 2020, about a month after the incident.
The Member said[31] an explanation for the delay could be found in Dr Yousaf’s notes, with the initial record of neck pain being “not much” but by 2 March 2020, the respondent was experiencing cervicogenic headaches which were worse with walking, with a limited range of neck movements, and with pins and needles and numbness in the right thumb area. She also noted[32] that the respondent was referred for a CT scan which showed pathology at the lower part of the cervical spine, and that he continued to report cervical spine symptoms following his return to work, with further records of such complaints made by Dr Yousaf on 18 March and 24 March 2020.
[31] Reasons, [163].
[32] Reasons, [165]–[166].
The Member said[33] she accepted the appellant’s submission that the doctors in the early period after the first incident would have been capable of distinguishing between the cervical and thoracic spine, but also accepted that it may not have been so easy for the respondent to make the same distinction, and although “the initial pop or crack was … described as being to the upper back or thoracic spine, … this region is proximate to the lower end of the cervical spine where Dr Hsu now seeks to perform surgery”.
[33] Reasons, [168].
The Member acknowledged the appellant’s submission that the temporal coincidence of cervical symptoms and the work incident is not of itself sufficient to demonstrate injury, it is rather a relevant “piece of the puzzle”. But the Member said[34] she was unable to agree with the appellant’s submission that the mechanism of the first incident did not suggest involvement of the cervical spine, noting the respondent stated that he was moving pallets stacked two high, using his arms to push the higher pallet into a more secure position when he experienced a sudden onset of pain, and that if this was capable of causing a sudden onset of thoracic symptoms, it could also account for onset of lower cervical symptoms.
[34] Reasons, [170].
At [171] of the reasons, the Member said she was not assisted in determining whether there was an injury to the cervical spine in the first incident by the respondent’s own evidence or the medico-legal experts, and without suggesting that he sought to deliberately mislead anyone, “the fact remains that those histories are not corroborated by the treating evidence and I find them and the expert opinions on which they are based unreliable. [The Member was] not satisfied that, if the [respondent] had immediately experienced very significant pain in his neck as claimed, that this would not have been recorded in either the ambulance, hospital or [GP] records of the [respondent’s] symptoms at that time”.
The Member then turned to note[35] Dr Casikar’s opinion that there had not been any injury to the respondent’s neck at all, and the symptoms had arisen from shoulder pathology, but found that such opinion failed “to engage with the mechanism of injury, the recording of neck symptoms in the clinical material in March 2020, the radiological investigations of the cervical spine ordered by [Dr Yousaf] and the absence of any suggestion of shoulder symptoms or pathology at that time”.
[35] Reasons, [172].
The Member said she was also not satisfied that Dr Hsu had an accurate history of the events in January or July 2020, and his explanation of the causal relationship to employment is vague, referring only to “lifting at work”. She said she was unable to place great weight on this aspect of Dr Hsu’s reports; and that the “histories recorded by Dr Nazha and Dr Duckworth are similarly at odds with the more contemporaneous records”.
The Member then said that she was, however, assisted by Dr Yousaf’s report, noting that she had seen the respondent regularly since the time of the first incident and had given “an opinion that is consistent with her own clinical notes”. While acknowledging that this opinion was also consistent with the 2023 letter, she said “… the fact that it accords with the [respondent’s] contemporaneous reporting of an immediate onset of some neck pain, increasing over the course of the month following the work incident, is significant. I do not accept that Dr Yousaf has simply adopted the solicitor’s theory of what happened ... [There] was a proper basis for [her] opinion that the incident in January 2020 was the initial cause of the … neck problems”.
The Member then found,[36] after “[w]eighing all the evidence”, and acknowledging “that minds may differ”, that she had “an actual sense of persuasion that the [respondent] sustained an injury to his cervical spine in the event on 31 January 2020” and that ss 4(a) and 9A of the 1987 Act had been satisfied. She then turned[37] to the “separate question … as to whether … the cervical spine was injured … on 2 July 2020”, and again noted that the respondent’s statement, and histories he provided to the doctors, were “difficult to reconcile with the contemporaneous treating material”. She said the respondent stated that during the 2 July 2020 incident, he immediately experienced sharp, shooting pain radiating from his neck into his left shoulder, and which continued after the incident – and that the most contemporary records from those treating him did not refer to “cervical spine symptoms in connection with this event”.
[36] Reasons, [176].
[37] From reasons, [179].
The Member noted that Dr Yousaf recorded on 10 July 2020 that the respondent felt back pain radiating to the left leg, and that Dr Yousaf made a number of referrals over the course of the following month, including to Dr Hsu, and thoracic, lumbar and left leg symptoms only were noted. The Member then said[38] that the “first suggestion of cervical spine symptoms appeared in an undated letter prepared apparently sometime after 24 October 2020 by physiotherapist, Mr Ting” who reported “fluctuating pain and restrictions in the cervical spine and lumbar spine.”
[38] Reasons, [183].
The Member noted the “first reference to cervical spine symptoms in the treating evidence following the second work incident was … recorded more than three months after the event” and there was no mention of the symptoms commencing or significantly increasing with or as a result of the second incident. She also noted[39] the comment by Dr Yousaf that any exacerbation of neck pain and stiffness after the second incident “was not very obvious early on”, suggesting “this was possibly due to back and thoracic pain being more significant sources of pain”. But she said Dr Yousaf’s opinion in this respect, unlike the January 2020 incident, did not find “direct support” in any contemporary record, and appeared “speculative, picking up on the suggestion that this was a possible explanation for the delay in the solicitor’s letter. The explanation is also difficult to reconcile with the [respondent’s] own statement … of an immediate onset of sharp shooting pain”.
[39] Reasons, [185].
The Member noted the respondent’s submission that just because symptoms are not recorded in contemporary records does not mean they did not exist or were not reported, and it was “trite to say that clinical records must be approached with caution”. She said that nevertheless, the respondent bore the “onus to demonstrate on the balance of probabilities that an injury occurred”,[40] and she was not prepared to rely on his account only, given the discrepancies between his and other contemporary evidence.
[40] Reasons, [188].
The Member further noted[41] that the issue in this regard needed to be considered in the context of the respondent having an “alternative explanation for the deteriorating symptoms”: that is, “a degenerative condition at his cervical spine, which, as I have found above, was made symptomatic in a separate incident on 31 January 2020”.
[41] Reasons, [189].
The Member then opined that while she accepted there was a deterioration in the respondent’s cervical spine symptoms from late 2020 onwards, she was not satisfied it likely constituted an injury for the purposes of ss 4 and 9A of the 1987 Act. She then[42] made an award for the appellant respect of the allegation of injury to the cervical spine on 2 July 2020.
[42] Reasons, [192].
The Member then turned to the question of whether the surgery was reasonably necessary as a result of the 31 January 2020 injury and set out the relevant legislation and principles by reference to the relevant authorities, including Murphy v Allity Management Services Pty Ltd.[43]
[43] [2015] NSWWCCPD 49 (Murphy).
The Member stated[44] that those principles meant that it was “necessary for the [respondent] to establish that the 31 January 2020 injury materially contributed to the present need for surgery”. She then[45] acknowledged that there was:
“… clearly an evidentiary challenge for the [respondent] in this regard as all … doctors who have expressed an opinion on the proposed surgery have done so on the basis that there was a second aggravating injury in July 2020. I have not accepted that claim.
There is also a gap of around seven months in the contemporaneous evidence of neck symptoms between March 2020 8 October 2020. In this period [he] returned to pre-injury duties”.
[44] Reasons, [198].
[45] Reasons, [199]–[200].
The Member went on[46] to say that while those factors were “suggestive of a resolution of the symptoms resulting from the January 2020 injury, the [respondent] has given evidence that he had to take regular breaks following his return to work to relieve his neck symptoms”, that this was corroborated by Dr Yousaf’s clinical record of 18 March 2020, and because there was “no positive evidence or opinion that the … neck symptoms resolved completely after the January 2020 injury”.
[46] Reasons, [200].
The Member then noted[47] that the July 2020 incident “triggered a new round of treatment, investigation and referrals to specialists. It is possible that the additional physiotherapy and medication being used to treat the [respondent’s] back … also had a beneficial impact on … neck symptoms or at least led to a greater focus on his back as opposed to any ongoing symptoms at the ... neck” (emphasis added).
[47] Reasons, [201].
The Member said[48] “in these circumstances, I am not persuaded that the gap in the treating evidence or the brief return to pre-injury duties leads inevitably to a conclusion that the January 2020 injury completely resolved or that the causal chain between the January 2020 injury and the need for surgery was broken (emphasis added)”. She then said:[49]
“It is relevant to note, as I have above, that there is no suggestion that prior to the January 2020 injury the [respondent] had ever complained of or sought treatment for cervical spine symptoms. Although I have accepted that aspects of [his] evidence and ... reporting of history are unreliable, I do accept that he has consistently suggested that his neck symptoms commenced with and continued after the January 2020 event”.
[48] Reasons, [202].
[49] Reasons, [203].
The Member said[50] that none of the doctors suggested the proposed surgery was necessary only as a result of the July 2020 injury, and although she had questioned the reliability of their opinions on causation “in view of the histories on which they were based”, both Drs Hsu and Bentivoglio related the need for surgery to the January 2020 incident as the event which had triggered the respondent’s neck problems. She also said “Dr Yousaf came to the same conclusion but armed with a broadly accurate history”.
[50] Reasons, [204].
The Member stated[51] that the weight of the medical evidence suggested that the January 2020 incident has continued to contribute, in a material way, to the current symptoms, also noting that the “only real opinion to the contrary is ... Dr Casikar who considered the … neck symptoms were … the result of soft tissue pathology at his shoulder”, and that such opinion “stands in contrast to all the other medical evidence”.
[51] Reasons, [208].
The Certificate of Determination, issued on 3 November 2023, includes the order that the appellant “pay the costs of and incidental to the C6-7, C7-T1 anterior cervical decompression and fusion surgery in accordance with s 60 of the [1987 Act]”.

GROUNDS OF APPEAL

The appellant brings the following two grounds of appeal:
(a) Error of discretion by preferring evidence in a report of Dr Yousaf dated 4 October 2023, three years and nine months after the alleged date of injury, when it is inconsistent with her own contemporaneous records and contemporaneous reports of Ambulance New South Wales and Blacktown Hospital (Ground 1).
(b) Error of law with respect to the finding that the claimed surgery was reasonably necessary as a result of the alleged injury on 31 January 2020 (Ground 2).

NATURE OF THE APPEAL

This appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether or not the Member’s decision was affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.

SUBMISSIONS

Each party provided primary submissions which were largely sufficient to determine the appeal, but following receipt of those submissions I did cause a Direction to be issued inviting further submissions.

GROUND 1 – The appellant’s submissions

The appellant says the Member identified that the respondent had the onus to show an injury occurred; and that she gave a comprehensive summary of the contemporaneous medical evidence relating to the first incident, including the ambulance records (at [37]), particularly the history of a “pop in his back” with severe pain, and “pain to the thoracic region of back” (appellant’s emphases). The appellant also notes the Member referred (at [39]) to the Blacktown hospital records after the first incident, particularly the record that the worker “experienced pain in mid-thoracic region …” (appellant’s emphasis).
The appellant says the Member correctly noted that “… the most contemporaneous accounts … on 31 January 2020 are … set out in the ambulance and hospital records …” and they “consistently described complaints of pain in the thoracic region of the back … [with] no reference to [cervical spine] symptoms”, and “no evidence of any radiological investigations of the cervical spine at the hospital, as had been reported to Dr Bentivoglio”.
The appellant points to the Member having observed (at [171]) that the worker’s assertions of his complaints of neck pain were not borne out by the contemporaneous records in this respect, and that she found the histories provided by the worker, and the expert opinions on which they were based, to be unreliable.
The appellant says that despite rejecting the respondent’s submissions and evidence regarding his immediate complaints of neck pain, the Member found he did suffer a cervical spine injury on 31 January 2020, noting she was “assisted by the report of Dr Yousaf”, who had seen the worker regularly since the first incident, and that Dr Yousaf’s report was “consistent with her own clinical notes”. The appellant then says this finding is inconsistent with the Member’s own observations (at [160] and [161]) as follows:
“Similarly, the clinical notes of the [worker’s] first post-injury consultation with … Dr Yousaf, described an injury to the upper back not the neck. The [worker] was initially noted to have no upper limb symptoms although a reduced range of arm extension was noted a week later … also no reference to cervical spine symptoms in the report of the [worker’s] physiotherapist Ms Barton dated 28 February 2020. Consistently with the previous medical records, Ms Barton’s treatment focused on the [worker’s] thoracic spine … Neck symptoms were clearly described in the clinical notes made by Dr Yousaf approximately one month after the incident on 2 March 2020” (appellant’s emphasis).
The appellant says Dr Yousaf did not record any cervical spine pain despite examining the worker on four occasions between 31 January 2020 and 2 March 2020, and the worker did not assert a slow onset of cervical spine symptoms, rather an immediate onset of sharp shooting pain. For all those reasons, the appellant says the Member’s reliance on Dr Yousaf’s report, prepared over 3 years after the injury, constitutes an error of discretion.

GROUND 1 – The respondent’s submissions

The respondent notes the grounds of appeal do not suggest error in the recounting of the evidence or submissions made. The respondent then says Dr Yousaf saw him both before and after the first incident, and examined and treated him both immediately after that incident and also when his cervical condition deteriorated in late 2020.
The respondent submits the appellant has not given any reason why it was not open to the Member to accept the evidence of Dr Yousaf.
The respondent says that while the Member noted no mention of cervical pain or referral for an x-ray at the hospital, and no complaints of cervical pain “in the early notes of Dr Yousaf or … Ms Barton”, the Member did observe a record of complaints to Ms Barton of headaches: also neck symptoms were described in Dr Yousaf’s 2 March 2020 notes, when the delay was explained, as noted by the Member (at [163]) “that initially the neck pain was ‘not much’ but, by 2 March 2020, [the worker] was experiencing cervicogenic headaches … worse with walking … limited range of neck movements … pins and needles and numbness in the right thumb area”.
The respondent submits the Member also accepted (at [167]) there was evidence of a new onset of cervical symptoms, and radiology was sought, within one month of the first incident; and that the doctor’s clinical notes said these symptoms started with the first incident. The respondent also says it is relevant that the respondent was taking the strong analgesia for his thoracic complaints.
The respondent says the Member considered all the evidence, and “placed weight upon the opinion of Dr Yousaf”, and that her records and opinion do support the Member’s conclusion, and there is no conflict between the Member’s comments at paragraphs [158] and [171] with the conclusion. The respondent says that the Member did not only rely on a report prepared three years and eight months after the injury – she also carefully considered all contemporaneous material including the doctor’s notes which support the conclusion.
The respondent submits there is ultimately no conflict within the Member’s reasons: at [171] she did reject the assertion of an immediate onset of very significant cervical pain on 31 January 2020 – but did accept, consistent with the medical records, an onset of milder pain that deteriorated, leading up to 2 March 2020.
The respondent says the Member considered the mechanism of injury and the lack of any alternative causes of the neck pain being reported in March 2020 – and the appellant has not raised any complaint about that part of her reasoning.
The respondent says the alleged error of discretion “is made without identifying any of the matters required to overturn an exercise of discretion”, the Member’s conclusion was based on evidence before her, and her reasoning evaluated all the evidence, explaining why she accepted there was an injury to the cervical spine on 31 January 2020. The respondent says the appellant has not demonstrated any error of fact or law.

GROUND 2 – The appellant’s submissions

The appellant notes the determination that there was no cervical spine injury on 2 July 2020, with the Member stating:[52]
“Whilst I accept … a deterioration in the … cervical spine symptoms from late 2020 onwards, I am not satisfied … there was a deterioration, exacerbation or aggravation of symptoms … contributed to by the event on 2 July 2020 for the purposes of ss 4 and 9A …”.
[52] Reasons, [191].
The appellant says that while there were documented complaints of cervical spine symptoms in March 2020, there were no such documented complaints at all between 18 March and 24 October 2020 – and the Member said in this regard it was “… possible that the additional physiotherapy and medication being used to treat the … back symptoms from July 2020 also had a beneficial impact on [his] neck symptoms or at least led to a greater focus on his back as opposed to any ongoing [neck] symptoms …”.
The appellant says such issues were not the subject of submissions made by either party, and there was no evidence that physiotherapy and medication masked the symptoms. The appellant then says the Member’s consideration of these issues in the absence of submissions or evidence means the decision is affected by error of law.
The appellant submits the decision was affected by error of law by effectively requiring the appellant to prove that the need for the surgery did not result from the January 2020 injury, saying the Member correctly observed[53] that “the mere proof that certain events occurred which predisposed a worker to subsequent injury … will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain …”.
[53] Reasons, [196].
The appellant also puts that the Member noted that this issue presented an evidentiary challenge to the respondent “as all of the doctors who have expressed an opinion on the proposed surgery have done so on the basis that there was a second aggravating injury in July 2020. I have not accepted that claim”. The appellant also says the Member relied on a single entry in Dr Yousaf’s records (on 18 March 2020) noting the respondent was experiencing neck pain and requiring breaks. The appellant says the Member did not consider or refer to the entry in those notes for 24 April 2020, that the respondent was “improved, nearly back to normal” (emphasis in the original).
The appellant also says the Member focused on the fact there was no evidence before her that the cervical spine injury had ‘resolved’ (emphasis in the original). The submission in this regard is that the Member did not apply the correct test – that the injury materially contributed to the need for surgery as was required in cases such as Murphy. The appellant says the Member’s approach was on the basis that once the issue of injury was determined in the respondent’s favour, the appellant needed to prove that the injury had resolved to avoid a determination that the need for surgery resulted from the incident.
The appellant finally submitted there was an error of law in deciding the proposed surgery was reasonably necessary given the “six-month gap” of any cervical spine complaints and the Member’s rejection of the respondent’s evidence in support of the surgery.
Otherwise, the appellant notes that no transcript has been made available at the time the submissions were made (1 December 2023), and the “sound … recording is very poor”, therefore the appellant said that it “may seek leave to amend the submissions subject to the provision of a transcript”. Such transcript was provided by the Commission on 15 December 2023. The appellant then filed further submissions on 21 December 2023, again noting that the transcript was “extremely poor”.

GROUND 2 – The respondent’s submissions

The respondent says this ground is not a complaint about the finding of injury but is limited to the finding of a causal connection between the injury and the need for the surgery. The respondent says the Member recognised a two-step process: having found injury on 31 January 2020, she then considered whether the need for surgery resulted from that injury.
The respondent says part of the Member’s reasoning, about the July 2020 incident not resulting in any further neck injury, was her finding (at [189]) that the earlier injury had made underlying degenerative symptomatic changes symptomatic – and this explained the deterioration that occurred in late 2020 – and there is no complaint about that part of the reasoning.
The respondent put that the law in relation to causation was well settled and referred to the statements in Kooragang Cement Pty Ltd v Bates[54] in relation to “a commonsense evaluation of the causal chain” and “results from”. The respondent also referred to Murphy where Roche DP found that the work injury does not have to be the only, or even a substantial, cause of the need for treatment, for the cost of that treatment to be recoverable under s 60 of the 1987 Act.
[54] (1994) 35 NSWLR 452; 10 NSWCCR 796.
The respondent says that in circumstances where there is a finding of injury, and then a continuation of symptoms, there is an evidentiary onus on the appellant to establish any novus actus or other cause for the continuing symptoms and if there are possible multiple causes to a condition, it is the appellant who bears the onus of disentangling causes. The respondent also says the Member “was alert to the lack of record of symptoms between March 2020 and October 2020”, and correctly observed there was no positive evidence or opinion before her that the respondent’s symptoms have resolved completely after the January 2020 incident. The respondent says the 24 April 2020 clinical note does not say there was a complete recovery. It only noted an improvement, and when read as a whole, is probably referring to the back condition, given the comment “discussed back care and precautions”.[55]
[55] ARD, p 202.
The respondent says the appellant did not run its case on the basis of there being a recovery from any injury suffered on 31 January 2020 – rather that there was no injury on either date to the cervical spine, and that the first record of neck pain was in October 2020.[56] The respondent says the appellant acknowledged he had been complaining about his neck on 2 March 2020,[57] but no mention was made of any other entries after that date, the CT scan carried out then, nor the January 2020 incident or that there had been a complete recovery from the March 2020 symptoms. The appellant’s case was of an onset of symptoms in October 2020, unrelated to work because there had been no injury – no case was mounted that acknowledged the 31 January 2020 injury.
[56] Transcript of proceedings of 19 October 2023 (T), T 50.23–31.
[57] T 35.6–8.
The respondent also put that the appellant submitted that following the July 2020 incident, the doctors had concentrated on treating the back and left sided sciatica[58] and the medical records also refer to the neck pain as being ongoing.[59]
[58] T 15.31–16.1.
[59] T 16.1–16.
The respondent also says the Member accepted (at [200]) that he gave evidence of regular breaks to relieve his neck symptoms, that this was supported in Dr Yousaf’s notes, and she rightly stated there was no evidence of the neck symptoms resolving completely.
The respondent says the Member’s observation that the treatment for the back may have had a beneficial effect on the neck symptoms “was not central to the determination that symptoms persisted”, and that Dr Yousaf opined that the neck symptoms were not as obvious after July 2020 as the back and thoracic pain was then the major source of pain. The respondent says this opinion is consistent with the view that this treatment “would have” affected the pain he experienced, and: “It is trite that pain medication will relieve pain throughout the body and not just the part for which the medication was prescribed.”
In any event, the respondent says, this complaint can only be one of procedural fairness and the appellant has not identified any prejudice. If such prejudice is said to be a lack of opportunity to make submissions, they could be made on the appeal and the appellant has not done so. This strongly suggests, the respondent says, there is no prejudice, and that any failure by the Member, even if it did exist, was not material.
The respondent submits that the Member did not, contrary to the appellant’s submissions, reverse the onus, she rather made a positive finding that the symptoms did not resolve and there was no suggestion of any other intervening event.[60]
[60] Reasons, [205].
The respondent also reports that the Member considered the possibility that the condition was solely due to the natural progression of degenerative change, and this was rejected because of the finding that there had not been a complete resolution of symptoms after January 2020. The respondent also says that despite there being an injury to the neck, there is no medical opinion to say the current need for surgery was unrelated to that.

SUPPLEMENTARY SUBMISSIONS

Following receipt of the above submissions, I issued a Direction on 24 June 2024 to provide an opportunity for each party to make any further submissions about two matters raised in Ground 2. Firstly, noting the respondent’s submission (at [36]) that the appellant’s “complaint” (about [201]) “can only be one of procedural fairness”, I flagged a preliminary view that any potential procedural fairness deficiency did not fully address the appellant’s argument – because it also referred to there being “no evidence … that the physiotherapy and medication masked the worker symptoms”. The respondent accepted the “no evidence” submission was a substantive submission, not just procedural fairness.
The second matter I directed attention to related to the “no evidence” aspect of the appellant’s submissions regarding the Member’s statement (at [201]). I also flagged a “preliminary view only” in this respect that the undated report of Philip Ting may, at least to some extent, be inconsistent with the appellant’s argument that there was no evidence that “the physiotherapy and medication masked the worker symptoms”.
In this regard, the appellant repeated its earlier submissions and said Mr Ting’s report should not be read alone and pointed to Mr Ting’s other report of 28 September 2020 following his initial assessment, two days before, where “no mention whatsoever of symptoms or treatment of the cervical spine” appears. The appellant agreed the report does refer to cervical spine symptoms, but says it also supports the appellant’s earlier submissions – because there was no evidence that the physiotherapy and medication “masked” the worker’s symptoms, or any cervical symptoms documented at all, between 18 March 2020 and 24 October 2020.
The appellant then says that when considering the Member’s comments that “it is possible that the additional physiotherapy and medication being used to treat the [respondent’s] back symptoms from July 2020 also had a beneficial impact on the [respondent’s] neck symptoms”, one must note that no physiotherapy treatment was directed towards the cervical spine as at 13 August 2020, nor were such symptoms recorded. Accordingly, the appellant put, Mr Ting’s report was not inconsistent with its argument that there was no evidence before the member that the physiotherapy and medication masked the respondent’s symptoms.
The respondent submits in relation to the “no evidence” point that Mr Ting’s report does record improvement in the cervical spine with treatment, and this is consistent with the symptoms therein being reduced as a result of the treatment – which would have included physiotherapy and medication. Accordingly, the respondent puts, it is not correct to say there was no evidence that physiotherapy and medication masked the symptoms.

DISCUSSION AND FINDINGS AS TO GROUND 1

As I have upheld appeal Ground 2 by finding a breach of procedural fairness, it is neither necessary or appropriate that I deal with Ground 1. My reasons for this appear below.

DISCUSSION AND FINDINGS AS TO GROUND 2

The first point in this ground is that the Member erred (at [201]) when stating: “It is possible that the additional physiotherapy and medication being used to treat the [respondent’s] back … from July 2020 also had beneficial impact on [his] neck … or at least led to a greater focus on his back as opposed to any ongoing [neck] symptoms” – in the context of observing that the July 2020 back injury “triggered a new round of treatment …”. The appellant says it has no recollection that “these issues” were submissions or evidence at the hearing, and also that the sound recording of the hearing was “of very poor quality”.
The parties were thereafter provided with a transcript of the arbitration held on 19 October 2023, and an opportunity to make any further submissions in that light. The appellant submitted (on 21 December 2023) that the transcript contained a large number of “not transcribable” entries, but still proceeded without objection, submitting the Member erred in law by considering matters which were not the subject of evidence or submissions.
The transcript shows[61] there was a submission that the doctors may have “concentrated on the back symptoms and ...” in the context of the July 2020 back injury resulting in the respondent reporting back pain, but not in the context of physiotherapy or medication for his back having a beneficial impact on his neck, or at least leading to a greater focus on his back as opposed to his neck.
[61] T 15.31–16.1.
In these circumstances, I must accept the appellant’s submission – that there was no submission that additional physiotherapy and medication being used to treat the back symptoms from July 2020 also had a beneficial impact on the neck symptoms, or at least led to a greater focus on the back rather than the neck.
As to the appellant’s “no evidence” point, the respondent partly relies on Mr Ting’s undated report,[62] and submits that while this report does refer to cervical spine symptoms, the most recent consultation referred to in it was on 24 October 2020, and this only supports the appellant’s original submissions “that there are no records of complaints or symptoms documented at all between 18 March 2020 and 24 October 2020”.
[62] ARD, p 68.
However, there has been no relevant issue about the records not referring to neck symptoms during that period. The Member also acknowledged it (at [200]), when she noted the “gap of around seven months in the contemporaneous evidence of neck symptoms between March 2020 and October 2020”. So this submission is not to the precise point of the first argument of error in Ground 2 (at [1.16]–[1.18] of the appellant’s submissions) – considering that physiotherapy and medication from July 2020 may also have had a beneficial impact on the neck symptoms, or at least led to a greater focus on the back – in the absence of submissions or evidence to this effect.
The relevant principles are well settled and conveniently summarised by Roche DP in Inghams Enterprises Pty Ltd v Thoroughgood[63] as follows:
“(a)    natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power (McHugh JA in Muin v Refugee Tribunal [2002] HCA 30; 190 ALR 601 at [123]).
(b)     the concern of the law is to avoid practical injustice (Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]),
(c)     when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and the law regulating the conduct of the proceedings (Bryson JA (Handley JA and Bell J agreeing) in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 at [20].
(d)     the requirements of natural justice … depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting [and] the subject matter …”.
[63] [2013] NSWWCCPD 29, [160].
Relevant to the above principles at paragraph [120(c) and (d)] above are ss 42 and 43 of the 2020 Act. Section 42 provides that the “Guiding principle” of that Act, and the Personal Injury Commission Rules 2021 (the rules), is for proceedings in the Commission “to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings”, including by facilitating the resolution of issues in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject matter of the proceedings.
Similarly, s 43 provides that proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits, and that the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks fit – and act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

These provisions do not of course oust the right of a party to natural justice.
The material before the Member clearly showed that between March and October 2020 the respondent was receiving significant amounts of medication and physiotherapy. Dr Yousaf’s notes[64] showed the prescription for Panadeine Forte 500mg was printed for the respondent on 31 July 2020 – with Endep 10 mg also appearing to be provided concurrently “to see if neuropathic element”. She next saw the respondent on 10 August 2020 and relevantly recorded he had taken Endep. She then provided a further prescription of Panadeine Forte at the same dosage as before. She noted the respondent wanted “more … physio as started only last week” and that he had been taking Ibuprofen intermittently. She saw him again on 14 August 2020 and recorded “physiotherapy has helped … pain is better slowly”. The same Panadeine Forte prescription was again printed, and this prescription appears to have continued at least until October 2020.
[64] ARD, pp 204–207.
But the note on 14 August 2020 that physiotherapy was helping is beside the appellant’s point – that between July and October 2020 there is no reference, in the evidence or submissions, to physiotherapy or medication for the back also having a beneficial effect on the neck, or that such treatment led to a greater focus on the back. But can this be inferred? The evidence from Mr Ting needs to be considered. He reported to Dr Yousaf on 28 September 2020,[65] noting he first saw the respondent on 26 September 2020. This report focuses only on back/leg complaints. His only other relevant (undated) report starts by referring only to low back pain since July 2020, then noting the respondent had “missed his last two appointments and was last seen on October 24, 2020”. He then notes:
“In previous treatment sessions [the respondent] has reported alternating worsening pain between his cervical thoracic spine and lumbar spine/left leg that causes him difficulty sleeping. He reports temporary relief after treatment sessions but then his pain can be aggravated by simple movements … also … a feeling of depression … Pain questionnaire score on October 7, 2020 was 135 … is indicative of ‘yellow flags’ … On examination, [he] has demonstrated varying amounts of pain and restrictions alternatively in his cervical spine and lumbar spine which improve after treatment” (emphasis added).
[65] ARD, p 65.
It is not totally clear how many times Mr Ting saw the respondent. But we do know it was between 26 September and 24 October 2020. It is also clear enough that there were consultations on those two days and also 7 October 2020. There were no neck complaints noted on 26 September 2020. In my opinion, the period the respondent (or Mr Ting) had in mind in relation to the comments “in previous treatment sessions” there was alternating cervical, thoracic and lumbar spine pain, and/or the reference to there being varying amounts of pain on examination in the cervical and lumbar spines “which improve after treatment” at least most likely relates to the consultations with Mr Ting. There is no evidence that such history appears otherwise in the context of earlier treatments. The “previous treatment sessions” is in my opinion is clearly a reference to the sessions between 26 September and 24 October.
As such, the appellant is correct in saying there is no evidence of any physiotherapy and medication for the respondent’s back, following the July 2020 back injury, and before October 2020, also benefiting his neck, or at least leading to a greater focus on his back. The respondent does not point to any such evidence, only putting that Mr Ting’s evidence means the appellant’s submission is not correct. When I invited the parties to make any supplementary submissions about this aspect, I expressed a preliminary view only that Mr Ting’s evidence may be inconsistent with what was being put by the appellant. But I am ultimately persuaded otherwise, and that the relevant period to consider in identifying whether there was the error of law as alleged (at reasons [201]) is after July 2020 and before October 2020. It was the Member, not the appellant, who outlined this period. At [200] she introduced concern about the “gap of around seven months in the contemporaneous evidence of neck symptoms between March 2020 and October 2020”. Then, [201] commences with: “In this period, the [respondent] sustained another significant injury”.
While the problematic comment about physiotherapy and medication benefiting the neck symptoms and focusing on the back rather than the neck relates to the period “from July 2020”, I believe the sentence it appears in needs to be read in the context of the previous two sentences, and also paragraph [200], to obtain proper meaning. Thus, this comment is still, at least inferentially, made with respect to the period up to October 2020.
After taking into account these principles and circumstances, including that procedural fairness only requires the appellant to be given a reasonable opportunity to put its case (and within the context of the procedures under the 2020 Act and the rules), I accept an error of law occurred with the Member’s statement (at [201]) that it was, “possible that the additional physiotherapy and medication being used to treat … back symptoms from July 2020 also had a beneficial impact on the … neck symptoms or at least led to a greater focus on his back as opposed to any ongoing symptoms at [his] neck”. This was procedurally unfair as there was no evidence, submission, or notice otherwise before the statement was made. The appellant was not given an opportunity to deal with it.
The respondent says this statement was not central to the determination, and in any event “the complaint could only be one of procedural fairness”, and the appellant had not identified any prejudice. But the test is rather whether the respondent can show that the procedural fairness breach could have made no difference to the result. In Stead v State Government Insurance Commission,[66] the High Court said the general principle that everyone was entitled to a fair trial where the case could be properly put was subject to this important practical qualification:
“Would further information possibly have made any difference? ... an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility
… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial … if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial …
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact … it is more difficult … to conclude … [on appeal] … that compliance with the requirements of natural justice could have made no difference … It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact …” (emphasis added).
[66] [1986] HCA 54; 161 CLR 141, 145.
Taking these principles into account, I am not satisfied that the procedural fairness breach in the last sentence of [201] could not possibly have made a difference to the result, nor that this would inevitably result in the same orders being made at a later hearing. The very next sentence reads: “In these circumstances, I am not persuaded that the gap in the treating evidence or the brief return to pre-injury duties leads inevitably to a conclusion that the January 2020 injury completely resolved or that the causal chain … was broken” (emphasis added). Further, the Member also ultimately stated (at [212]) that the overall issue (whether the condition for which the surgery was proposed had resulted from the January 2020 injury) was “finely balanced and clearly one in respect of which minds might differ”. The contest thus may be said to be a close one, where every piece of significant evidence had the potential to make a difference, including sub-issues such as this. Even if one looks only at this sub-issue (the seven-month gap) in this respect, it can be inferred that the Member thought this too was a close contest.
It is not entirely clear what is meant by the passage in [202], given the Member provided further important reasons before finding (at [212]) that the respondent had discharged his onus to show that the proposed surgery “resulted from” the January 2020 injury. The only conclusion (at [202]) appears to be that she was not persuaded it was inevitable that the causal chain was broken – at that stage of the analysis. But neither party has raised any argument about this, nor have they addressed what the word “possible” (at [201]) could mean – or, more importantly, whether that would make a difference anyway given the content and location of the last sentence of [201] and [202]. It is neither necessary or appropriate I make any observations or findings about that.
For all the above reasons, I uphold Ground 2 and find the decision appealed against is affected by error of law.

DISCUSSION AND FINDINGS AS TO CORRECTION OF THE ERROR

Given the above findings, I revoke the Certificate of Determination. There is then a vexed question as to whether I should make a new decision or remit the case to another member – and if so, whether that should be on a limited basis by deciding Ground 1 (assuming that Ground is dismissed) given the only error I have found is in Ground 2. To remit the whole case to another member for a third hearing would be very unsatisfactory. However, for the following reasons, I believe this is likely to be the lesser evil than otherwise.
The respondent has argued that Ground 2 has proceeded on the basis of the January 2020 injury being found, with the Member then separately considering whether the surgery resulted from that injury. This raises a question as to whether I should isolate and dispose of Ground 1. If the appellant’s argument is successful, that would dispose of the case totally. The converse would not be the same, although some aspects of the dispute would be removed, having the capacity to reduce some time and expense.
However, in Chen v State of New South Wales (No 2),[67] Leeming JA (McColl JA and Emmett AJA agreeing) said:
“The matter was remitted for retrial, and – importantly – on all issues. That accorded with the ‘sound general proposition’ to which Kitto J referred in Pateman v Higgin (1957) 97 CLR 521 at 527 that where there is to be a new trial, the starting point is that it ought to be of the case as a whole, and only if ‘more injustice’ would be done by ‘setting the matter at large again’ should there be a more limited remitter. It also accorded with what Gleeson CJ said, with the agreement of McHugh and Gummow JJ, in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [20] (Waterways).”
[67] [2016] NSWCA 292, [39].
In Waterways, Gleeson CJ said (at [20]):
“The fact which the Court of Appeal found (that the first respondent, through being jostled or pushed lost his balance and fell into the water), and then by its order made the basis on which the new trial was to be conducted, is only one of a number of facts relevant to facts in issue in the case, and it is not a fact that can be isolated from all other facts that remain in controversy … There remain for decision a number of unresolved questions which will depend upon the reliability of the evidence of other witnesses including that of the [plaintiff]. At a new trial, the trial judge will have to hear evidence, and make findings about, the circumstances of the accident. The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different. It is in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the [plaintiff’s] forensic success in the Court of Appeal …”.
The facts and circumstances in Waterways are not fully analogous to those in the present case, including that the Commission’s procedures are more flexible than in a court. On the other hand, the need to adhere to the guiding principle in s 42 of the 2020 Act is not dissimilar to the guiding principle in s 56 of the Civil Procedure Act 2005 requiring the facilitation of just, quick and cheap resolution of the issues in dispute.
Similarly to Waterways, I also believe the Ground 2 facts cannot be easily separated from the Ground 1 facts, as the latter relate to the overall issue about whether the claimed surgery was reasonably necessary as a result of the alleged injury on 31 January 2020. The overarching credibility of the respondent is of critical importance in this regard and to the case as a whole, particularly the expert and treating medical evidence. The appellant has pointed to the Member’s comments in this regard:[68]
“While I do not suggest that the [respondent] has sought to deliberately mislead the Commission or the experts, the fact remains that those histories are not corroborated by the treating evidence and I find them and the expert opinions on which they are based unreliable …”.
[68] Reasons, [171].
In contrast, the Member said in the context of Ground 2 (at [203]):
“Although I have accepted that aspects of the [respondent’s] evidence and his reporting of history are unreliable, I do accept that he has consistently suggested that his neck symptoms commenced with and continued after the January 2020 event”.
In CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow.[69] Adamson JA (Ward P and Mitchelmore JA agreeing) observed that:
“The assessment of credibility at first instance involves a number of factors, which include consistency of the statement with other statements and with the surrounding circumstances, motive and any corroboration which may be available: see generally Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 …; Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 …”.
[69] [2023] NSWCA 135, [59]
While the Member’s analysis of credibility was consistent with the above principles, the contrast between her treatment of the respondent’s evidence at [171] and [203] highlights the relative complexity of the presenting evidence regarding the respondent’s credibility.
I hasten to add that this discussion relates only to my practical considerations of whether and if so, how, it is appropriate for me to make a new decision, and if not, the nature and or extent of any remitter.
The transcript difficulties are also relevant. It has been described by the appellant as “extremely poor”. The respondent does not challenge that. This means the submissions would probably need to be done again even if I were to make a new decision.
I acknowledge the “guiding principle” (facilitating just, quick and cost-effective resolution of the real issues) under s 42 of the 2020 Act, and also bear in mind that the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 43(3)). I am particularly concerned about the need to dispense justice to both parties given the credit and transcript difficulties and believe the best way for this to occur is to revoke the whole of the Certificate of Determination and remit the case to another member for re-determination.
At the re-determination, both sides will be at liberty to tender such evidence as they consider appropriate and necessary for the proper determination of the matter, subject to compliance with the rules and any direction that the next member may issue. I also recommend allocation of the earliest reasonably possible hearing date.

DECISION

The Certificate of Determination dated 3 November 2023 is revoked.
The matter is remitted to another non-presidential member for re-determination in accordance with these reasons.

Michael Perry
ACTING DEPUTY PRESIDENT

9 September 2024