Whelan v Stowe Australia Pty Ltd

[2021] NSWPICPD 36

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36
APPELLANT:	Liam Whelan
RESPONDENT:	Stowe Australia Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-6561/20
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	8 November 2021
ORDERS MADE ON APPEAL:	1.    The Member’s Certificate of Determination dated 5 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – acceptance of evidence in the absence of cross-examination – Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied – alleged factual error – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
Turner Freeman Lawyers
Respondent:
Ms F King, solicitor
Moray & Agnew Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	5 March 2021

INTRODUCTION AND BACKGROUND

1. Mr Liam Whelan (the appellant) was employed by Stowe Australia Pty Ltd (the respondent) as a telecommunications technician. On the night of 24 May 2018, the appellant and a co-worker were involved in locating and moving fibre optic cable, and, between the two of them, were required to lift open a heavy steel road plate.

2. The appellant subsequently lodged a claim for workers compensation, alleging that he had suffered injury to his lumbar spine in that incident. The respondent denied the claim on the basis that:

   (a) the appellant had not given notice of the injury or made a claim for compensation within the time required by ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

   (b)    the alleged injury did not arise out of the appellant’s employment (s 4 of the Workers Compensation Act 1987 (the 1987 Act);

   (c)    the appellant’s employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act), and

   (d)    the appellant’s employment was not the main contributing factor to any injury in the nature of a disease injury (s 4(b) of the 1987 Act).

3. The appellant lodged proceedings in the Workers Compensation Commission, claiming weekly payments and treatment expenses. He pleaded:

   (a)    an injury on 24 May 2018 while lifting the heavy steel plate, or in the alternative,

   (b)    an injury as a result of lifting heavy objects (including steel road plates) and being required to drive long distances over rough and unsealed terrain, with a deemed date of injury of:

   (i)23 January 2019, or in the alternative

   (ii)9 September 2019.

4. The injury alleged was described as a rupture of the appellant’s L5/S1 lumbar disc.

5. The matter was allocated to an Arbitrator of the New South Wales Workers Compensation Commission and came to arbitration on 1 February 2021. The arbitration concluded and the Arbitrator reserved her decision. On 1 March 2021, the Workers Compensation Commission was abolished by operation of Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date,[1] and the Arbitrator became a non-presidential member of the Personal Injury Commission.

   [1] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

6. The Member issued a Certificate of Determination on 5 March 2021, in which she determined that the appellant had not discharged his onus of proving that he had suffered injury as alleged. The appellant appeals that decision.

ON THE PAPERS

1. Section 52(3) of the 2020 Act provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Both parties indicate that the appeal can be determined on the basis of the documents and that an oral hearing is not required. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Neither party seeks to adduce further evidence in the appeal and the Member’s decision was not interlocutory in nature.

THE EVIDENCE

The appellant’s statements

1. The appellant provided a statement signed on 19 March 2019.[2] He gave a history of his employment experience, which included work as an insurance claims assessor and telecommunications technician. He advised that he commenced work with the respondent in January or February 2016 as a full-time telecommunications technician. He provided an overview of his employment duties, which he described as labour intensive and physically demanding, including working at heights and in confined spaces, lifting heavy lids and equipment, and hauling cable. The appellant said that he reported to Mr Adrian Cogan, the Account Manager.

   [2] Application to Resolve a Dispute (ARD), pp 3–13.

2. He gave details of a prior history of having suffered from a psychological condition and chronic fatigue syndrome in 1996, which he attributed to his workload as an insurance claims assessor. He said that he took some time off work and had fully recovered from those conditions within 12­–18 months. The appellant also spoke of having suffered from a back injury prior to commencing employment with the respondent, which consisted of an L5/S1 disc bulge on the left side of his lower back. The appellant said that this occurred in 2007 in the course of his employment with a former employer, although he did not report the injury or lodge a workers compensation claim. He said he fully disclosed his pre-existing back injury when he was interviewed for the position with the respondent.

3. The appellant advised that in May 2007, he underwent a CT guided nerve root injection which immediately relieved his sciatic symptoms. He said that, thereafter, he was able to manage his symptoms by receiving physiotherapy treatment, doing stretching exercises and taking medication as required for pain relief, until May 2018. The appellant stated that in September 2018, he had a double discectomy in order to treat a completely ruptured L5/S1 disc which followed an incident while employed by the respondent when he lifted a very heavy steel road plate weighing 120–140 kilograms.

4. The appellant described the incident on 24 May 2018 and detailed the circumstances in which he was working when the injury occurred. He said he was working with a fellow employee, Mr Kye Romeo, relocating fibre optic cable. He said that they were hauling 170 metres of cable though conduits, when they discovered that the conduits were blocked. The appellant stated that, in order to expose the damaged conduits, he and Mr Romeo lifted a steel road plate weighing ­120–140 kilograms, which was a struggle. He said he felt discomfort in his legs and hands at the time they were lifting the plate, and afterwards felt a twinge in his mid-back and shoulder blades. The appellant referred to a text message that he sent to Mr Cogan, describing the work they had done, which included lifting a steel road plate weighing 80–90 kilograms, and attaching a photograph of the damaged cable and the road plate. The appellant annexed the text message to his statement, indicating that he advised Mr Cogan that they had to lift a road plate weighing 80 to 90 kilograms, and commenting that they “[c]ertainly didn’t need to move by hand the 80/90 kg road plate”.

5. The appellant said that when he first started to experience pain and discomfort in his lower back after the incident, he sought treatment from a physiotherapist at the Sports Physiotherapy & Work Rehabilitation Centre, Penrith, who he was consulting because he was experiencing nerve pain in his right elbow. He said he attended for four sessions of physiotherapy between 30 May 2018 and 20 July 2018.

6. The appellant advised that he continued to work, attributing his pain to his pre-existing back injury. He took “over the counter” medication, but as the pain was not improving, he attended Dr Monique Moloney, general practitioner, who prescribed Tramadol. He said he was referred for a CT scan on 20 July 2018 and then was given another CT guided nerve injection on 27 July 2018, which provided no relief. The appellant stated that he subsequently consulted his general practitioner, Dr Peter Hay, who arranged an MRI scan, which disclosed a right sided herniated L5/S1 disc. He was referred to Dr Brian Hsu, orthopaedic and spine specialist, who performed a two-level discectomy on 11 September 2018. He said he met the cost of the surgery himself. The appellant advised that, prior to the surgery, he was working full-time. He stated that he applied for a sickness benefit through the respondent’s insurer, Point Insurance, who denied the claim on the basis of his previous back injury.

7. The appellant provided details of the medical treatment he received after the surgery. He said he returned to full-time normal duties on 13 November 2018 despite the recommendation from Dr Hsu that he work “light duties.” He said he did so because Mr Cogan informed him that he was required to work normal duties. He said he returned to work because he had exhausted all of his leave, had been on leave without pay for 8 weeks and was running out of money. He said he then took annual leave from 19 December 2018 until 6 January 2019, returning to work on 7 January 2019. The appellant said that he submitted an injury report form on 23 January 2019 and the respondent arranged for him to attend Dr Aji Chara, general practitioner. Dr Chara recommended restrictions on his capacity to work, which were implemented, and he worked until 6 February 2019.

8. The appellant stated that he could no longer manage the level of pain and the medication was affecting his concentration and ability to safely perform his duties, so he consulted Dr Hay, who certified that he had no capacity for work.

9. The appellant described his ongoing difficulties. The appellant said that, in hindsight, he would have reported the injury on 24 May 2018 earlier, but had been optimistic that he could manage his pain.

10. On 20 June 2019, the appellant made a statement in response to a dispute notice issued by the respondent pursuant to s 78 of the 1998 Act.[3] In relation to the allegation that he had not reported his injury, he advised that he had sent a text message to Mr Cogan on completion of the job in 24 May 2018, in which he confirmed that he had lifted a heavy road plate. He said that in the text, he had referred to the weight of the road plate as being 80–90 kilograms but considered that it probably weighed 120 kilograms.

    [3] ARD, pp 1–­2.

11. The appellant referred to a sickness claim form completed by him in which he said the injury occurred on 19 July 2018. He explained that he wrote that date because it was the date that he consulted his doctor because his back pain had become more acute. He added that he did not think that the form specifically required a date of the injury. He further added that he attended the physiotherapist on 30 May 2018, and his back was sore. He annexed the account from the physiotherapist for that consultation. The appellant referred to having ticked “no” in the box on the form that asked whether the injury was work related and explained that this was because he thought the box related to the date of 19 July 2018 and that was not the date he was injured.

12. The appellant noted the reference in the respondent’s dispute notice to an entry he had posted on Facebook on 28 September 2018, in which he wrote that “the injury was not my employer’s fault, but I would have been better off just lying and claiming workers compensation … sadly, I’m too honest for that.” The appellant explained that the comment was because he was feeling frustrated about his sickness claim and did not mean that he did not lift the heavy road plate, or that he was not injured. He said he considered that the injury had been his fault.

13. The appellant further noted the reference in the respondent’s dispute notice to the history of the previous back problems recorded in the Castle Hill Medical Centre’s clinical notes and advised that he had always disclosed his prior back injury. He referred to the numerous pre-employment medical assessments, which he had always passed, and the fact that his prior back problems had never stopped him working. He said that he believed he had suffered a “frank” injury or had severely aggravated his prior back injury when lifting the heavy road plate on 24 May 2018.

14. On 29 July 2020, the appellant signed an additional statement.[4] He advised that, on 25 May 2018 (the day after the injury) he purchased pain killers (the generic form of Voltaren Rapid) from Chittaway Pharmacy. He attached the receipt for that purchase, as well as the accommodation receipt from the Chittaway Motel, where he stayed to complete the project he was working on. He said that he also purchased pain killers from the High Street Pharmacy on 19 June 2018.

    [4] ARD, pp 193–196.

15. The appellant stated that he had never lodged a workers compensation claim before, and he first found out about making a claim within the time prescribed when he consulted his lawyers on 22 January 2019. He said that, at that stage, he was at his “wit’s end.” He said that shortly thereafter, he lodged a workers compensation claim, accompanied by a Workcover certificate of capacity. The appellant referred to the claim for sickness insurance, which he said he withdrew because while the claim was being processed, the respondent would not pay his leave entitlements.

16. The appellant again referred to the comments he had posted on Facebook, which he described as “stupid.” He explained that he had undergone the surgery to his back two weeks earlier, he was in pain and was on heavy pain killers. He said he was frustrated because of the claim lodged with Point Insurance, and his sickness benefit claim. He described the comment as a “throw away” comment, was not sure why he said it, and that he was at the time unaware of his workers compensation entitlements, otherwise he would have made the claim then.

17. The appellant added that he had not worked since April 2019 and had been in constant pain since that time. He gave details of treatment undertaken in Bangkok while he and his wife visited his wife’s family there over the Christmas period between December 2019 and January 2020. The treatment included radiofrequency ablation to the lumbar spine at L4/5 and L5/S1 levels, and an MRI scan, following which a spinal specialist recommended an interbody lumbar fusion, which was consistent with advice he had received from Dr Hsu. The appellant stated that he has been unable to afford the surgery, but in the meantime he was studying with the aim of finding less arduous work, although he was finding it difficult because of prolonged sitting and the need to take painkillers.

18. The appellant provided a further statement dated 7 September 2020,[5] seeking to explain why he did not lodge a claim for workers compensation entitlements until 23 January 2019. He said he had never previously made a claim for workers compensation and was not aware of how the system worked. In particular, he was not aware of the timeframe required to give notice of injury and make a claim for compensation. Further, he said that while he understood that if he injured himself at work he would be able to make a claim for compensation, he believed that he had merely aggravated his prior back problems and the symptoms were not a “new” injury. He said he did not know that he could bring a claim for an aggravation. The appellant maintained that he had always disclosed his pre-existing back condition, but he had managed his back pain. He said that when he underwent the MRI scan on 10 August 2018, he became aware for the first time that the incident on 24 May 2018 had caused further pathology.

    [5] Appellant’s Application to Admit Late Documents (AALD) dated 28 January 2021, pp 1–2.

19. The appellant added that the respondent was aware of his injury since about July 2018, prior to the surgery, when he completed the sickness claim form for salary continuance. The appellant asserted that the respondent did not give him any information about making a claim for workers compensation. He said the only material he was provided with was the application form to complete for salary continuance, but if they had advised him about making a workers compensation claim, he would have made such a claim.

20. The appellant made a further statement dated 26 October 2020.[6] The appellant referred to the reports of Dr Stephen Quain, orthopaedic surgeon, who had examined the appellant at the request of the respondent. The appellant pointed to Dr Quain’s view that the requirement to drive for a long period could aggravate a pre-existing disc lesion. The appellant reiterated that he had injured his back lifting the heavy road plate on 24 May 2018, but that he was also required to do significant and long periods of driving throughout New South Wales in his employment with the respondent. He provided time sheets, which he explained indicated that he worked in various sites, including Killingsworth (near Newcastle), Chittaway Bay, Wallsend, Tuggerah and Dora Creek. He said that not all of those locations were accessible by sealed road, and at times he had to drive through paddocks, on fire trails and rocky and bumpy roads. He described his work van, which was not a four wheel drive.

    [6] ARD, p 237.

21. The appellant stated that he was provided with a new van by the respondent in 2016, which he rarely used for private purposes because it was not comfortable. He advised that the odometer reading on 10 July 2018 was 60,456 kilometres. He said he continued to try to work after the injury on 24 May 2018, and during that period did a lot of driving.

The statement of Mr Kye Romeo

1. Mr Kye Romeo provided a statement dated 20 June 2019.[7] Mr Romeo confirmed that he was employed by the respondent, having commenced that employment in June 2016. He advised that he had a very good memory of the work he was doing with the appellant on the evening of 24 May 2018. He said they were in the process of digging to find conduit and cables when they came across a very heavy road plate. He said that he and the appellant lifted the very heavy plate, as they needed to complete the job. Mr Romeo said that thereafter, in the days and weeks following that incident, the appellant was complaining and whinging about soreness in his back. Mr Romeo stated that the respondent complained on multiple occasions, although he could not recall specifically what the respondent said.

   [7] ARD, p 14.

The statement of Suzana Vidakovic

1. Ms Suzana Vidakovic, the Return to Work Co-Ordinator who had been employed by the respondent since 2013, provided a statement dated 29 January 2021.[8] Ms Vidakovic referred to the appellant’s allegation that his position with the respondent required long periods of driving throughout New South Wales. Ms Vidakovic reviewed the respondent’s payroll records for the period from March 2016 to 23 April 2019. She said that, during that period, the appellant was away for work for 10 nights during the entire period of his employment, four of which were after 24 May 2018.

   [8] Respondent’s AALD dated 29 January 2021, pp 1–2.

1. Ms Vidakovic stated that as far as she was aware, there was no record of the appellant making any complaint of pain or discomfort during or following those periods of travel. She noted that the appellant complained in his statement that he was required to drive through paddocks and unsealed roads. Ms Vidakovic considered that it would be unusual that employees would be required to drive on unsealed roads and more unusual that they would be required to travel long distances. Ms Vidakovic said that the respondent had a network of regional branches that would deal with work outside of Sydney.

2. Ms Vidakovic referred to the location where the appellant said the injury occurred and provided photographs, which, she said, indicated that the road was bitumen to the point where the pole requiring the work was situated. Ms Vidakovic added that the appellant had not at any time complained that his vehicle was uncomfortable, and there were no records of any such complaint.

3. Ms Vidakovic further referred to the appellant’s allegation that the respondent was aware of his injury since July 2018 and that the respondent had never provided him with any information about his workers compensation rights or the process of making a claim. Ms Vidakovic responded that:

   (a)    the medical certificate provided by the appellant dated 26 July 2018 referred to back pain but did not suggest that it was in any way related to work;

   (b)    the personal accident and sickness claim form completed by the appellant on 10 September 2018 described the injury as a “disc rupture L5/S1 intersection” which occurred on 19 July 2018 and was an aggravation of an existing condition;

   (c)    there was no reference on the claim form or in the attached report from Dr Hay to the condition being related to work with the respondent or at all;

   (d)    the appellant had ticked the box indicating that it was not a workers compensation claim;

   (e)    at all times since the appellant was employed by the respondent, the respondent displayed posters provided by the New South Wales Government about workers compensation, which were also posted on the respondent’s intranet;

   (f)    the appellant was required to attend an induction at the commencement of his employment, in which he was required to complete questionnaires about workers compensation policies and procedures, and

   (g)    the importance of reporting injuries was stressed repeatedly in the respondent’s toolbox meetings.

4. Ms Vidakovic attached to her statement the medical certificate dated 26 July 2018, the accident/sickness form and a poster advising workers of what to do in the event of an injury.

The medical evidence

Dr Peter Hay, general practitioner

1. Dr Peter Hay, general practitioner at the Castle Hill Medical Centre, reported to the appellant’s legal representatives on 1 May 2019.[9] He advised that the appellant consulted him on 2 August 2018, complaining of a history of severe back pain radiating into both legs following an incident at work. Dr Hay said that, on examination, there was severe pain in the lumbar spine with spasms and markedly reduced straight leg raising bilaterally. Dr Hay advised that the appellant consulted him again on 10 August 2018, 17 January 2019, 6 February 2019, 13 February 2019, 28 February 2019, 15 March 2019 and 1 April 2019, with persisting lumbar pain and pain in both legs.

   [9] ARD, pp 64–65.

2. Dr Hay provided his opinion about the restrictions in the appellant’s capacity for work and opined that the appellant’s lumbar disc protrusion occurred as result of the incident at work in July 2018. He added that the appellant’s employment was a substantial contributing factor to the “injuries.”

3. Dr Hay issued a medical certificate on 2 May 2007, indicating that the appellant was suffering from acute sciatica and would be unfit for work for four days.[10] He issued a further certificate dated 13 May 2010 in respect of back pain.[11] That certificate was issued on the same day that Dr Hay referred the appellant for an MRI scan, and provided a history of left buttock pain radiating to the left leg, together with shooting pain down the right leg, after picking up a child.[12] A further medical certificate relating to back pain was issued by Dr Hay on 14 May 2013.[13]

   [10] ARD, p 148.

   [11] ARD, p 153.

   [12] ARD, p 152.

   [13] ARD, p 163.

4. Dr Hay issued a WorkCover certificate of capacity on 28 August 2019, which indicated that the appellant stated his date of injury to be 24 May 2015 and recorded that Dr Hay had first seen the appellant in respect of the injury on 6 February 2019.[14]

   [14] ARD, pp 206–208.

Dr Andreas Loefler, spinal surgeon

1. Dr Andreas Loefler reviewed the appellant in respect of his pre-existing low back pain at the request of Dr Hay. He reported to Dr Hay on 24 May 2007.[15] Dr Loefler reported that the appellant had been suffering from low back pain for six months, without an identifiable precipitating incident, which had recently developed to include left sided buttock and thigh pain, becoming severe.

   [15] ARD, p 179.

2. Dr Loefler noted that the MRI scan disclosed an L5/S1 left sided disc lesion, which appeared to abut the S1 nerve root, and that the recent CT guided cortisone injection provided the appellant with great relief. Dr Loefler considered that the symptoms were consistent with the disc lesion demonstrated on the MRI scan and, given the positive outcome from the cortisone injection, no further active treatment was required. Dr Loefler indicated, however, that the symptoms may return, requiring a further cortisone injection.

Dr Brian Hsu, spinal surgeon

1. Dr Brian Hsu provided several progress reports directed to Dr Hay.

2. In a report dated 24 August 2018, Dr Hsu wrote that he reviewed the appellant on 16 August 2018.[16] He confirmed that he had treated the appellant for significant back pain eight years previously. Dr Hsu noted that the appellant was now experiencing severe left leg pain with demonstrated left sided weakness at the L5/S1 level. He said that a recent MRI scan disclosed a large disc herniation, causing significant discomfort. He noted that the appellant had been given a cortisone injection but was of the view that such treatment would not benefit the appellant. Dr Hsu was of the opinion that the appellant required surgical intervention in the form of an L5/S1 discectomy. Dr Hsu remarked that the appellant was unable to take time off work because he was involved in a particular project, so that Dr Hsu would try to manage the appellant’s symptoms with a view to performing the surgery in September 2018.

   [16] ARD, p 69.

3. On 8 February 2019, Dr Hsu reported that the appellant had attended for review following the L5/S1 decompression surgery performed in September 2018.[17] Dr Hsu reported that in October 2018, the appellant’s pain was under control and he was making an excellent recovery but, in the weeks leading up to the consultation, developed severe lower back pain after an attempted return to work.

   [17] ARD, p 67.

4. Dr Hsu reviewed an MRI scan undertaken on the day of the consultation. He recorded that there was no evidence of a recurrent disc herniation. He said that the appellant was suffering from medial and anterior leg pain, which he considered could be referrable to the L4 nerve root. Dr Hsu advised that he had arranged for the appellant to undergo an epidural steroid injection at the L4/5 level.

5. On 8 March 2019, Dr Hsu reported that he had reviewed the appellant following the epidural injection, which offered the appellant some degree of relief, and thus was indicative that the L4/5 level of the spine was causing the appellant’s current symptoms. Dr Hsu suggested a trial of a further injection, this time at the L5/S1 level, but indicated that if non-operative treatment failed, consideration should be given to further surgical intervention, probably in the form of a spinal fusion of the L4 to S1 levels.[18]

   [18] ARD, p 66.

6. Dr Hsu provided a further report dated 2 August 2019, which was issued in response to a request from the appellant’s legal representatives.[19] Dr Hsu referred to his earlier reports sent to Dr Hay in respect of the history provided to him by the appellant and his findings on examination. He further referred to the post-operative restrictions on the appellant’s ability to work. He opined that the appellant’s work “injuries” were a substantial contributing factor to his symptoms. He advised that the non-operative treatment provided to the appellant had failed, and that the appellant was waiting for a spinal fusion to be performed.

   [19] ARD, pp 212–213.

Dr James Bodel, orthopaedic surgeon

1. Dr James Bodel was asked by the appellant’s legal representatives to provide a medico-legal opinion in respect of the appellant’s injuries. He provided a report dated 20 May 2019.[20]

   [20] ARD, pp 53–63.

2. Dr Bodel recorded the history that the appellant’s injury occurred on 24 May 2018 while he was re-routing fibre optic cable from underneath a roadway. Dr Bodel took a detailed account of the particular work the appellant was required to do on that evening, which included lifting the large steel plate, estimated to weigh as much as 125 kilograms. Dr Bodel noted that the appellant described the work performed that evening as fairly physical activity, but said that it did not cause him any particular pain at the time.

3. Dr Bodel noted that the appellant was required to drive to Newcastle for work on the following day and began to feel a niggling pain in his back, right buttock and thigh, which the appellant thought to be a minor aggravation of his previous back injury. Dr Bodel said that the appellant’s symptoms worsened over the weekend of work and by the Monday, he was in quite a lot of pain. Dr Bodel reported that the appellant continued to work, sought treatment from a physiotherapist on 30 May 2018, but the pain did not settle and so he attended a general practitioner, who arranged a CT scan. Dr Bodel said that the appellant then attended Dr Hay, who arranged for the appellant to undergo an MRI scan and referred the appellant to Dr Hsu.

4. Dr Bodel reviewed the treatment regime thereafter, which included the discectomy at the hands of Dr Hsu on 11 September 2018. Dr Bodel recorded that the appellant’s symptoms were worse with the appellant experiencing significant pain, and the only further option offered by Dr Hsu was a spinal fusion.

5. Dr Bodel referred to the injury suffered by the appellant in 2007 in previous employment and took a history that the back pain settled and was managed by occasional physiotherapy, with the appellant pursuing activities involving motorcycle racing and attending the gym. Dr Bodel added that the appellant had received no other injury other than the injury on 24 May 2018. Dr Bodel examined the appellant, and particularly noted that the appellant’s pain from the incident in 2007 was referred into the left leg, whereas, following the incident on 24 May 2018, the referred pain was travelling into the right leg.

6. Dr Bodel reviewed the radiological investigations, the evidence from Dr Hay and Dr Hsu, and the appellant’s statement dated 19 March 2019. Dr Bodel pointed out that the appellant continued to work without restriction for years after the injury in 2007, that he was required to pass pre-employment medical assessments, and that the appellant disclosed his prior injury to the respondent.

7. Dr Bodel concluded that the specific activities the appellant was undertaking on the evening of 24 May 2018 at the least caused a further aggravation, acceleration, exacerbation and deterioration of his prior lumbosacral disc pathology. He noted, however, that the previous disc pathology had been a left sided protrusion but was now further extruded to the right side.

8. Dr Bodel opined that the radiological investigations confirmed that the pathology at the L5/S1 level was caused by the injury on 24 May 2018. Dr Bodel discussed the appellant’s treatment options and recommended that the appellant should seek a second opinion in relation to further proposed surgery. He concluded that the appellant had no capacity for work and that the appellant’s employment was a substantial contributing factor to the appellant’s current condition. Dr Bodel considered that the appellant’s complaints were genuine and that his ongoing disability was referrable to the injury on 24 May 2018.

Dr Stephen Quain, orthopaedic surgeon

1. Dr Stephen Quain was asked by the respondent’s legal representatives to provide a medico-legal opinion in relation to the appellant’s claim. He provided a report dated 31 August 2020.[21] Dr Quain took a history of the work required of the appellant on the night of 24 May 2018. which he described as requiring the appellant to move dirt and lift a heavy metal plate weighing 120 kilograms. Dr Quain said that, initially, the appellant strained his shoulder, but believed that he had strained his spine at the same time. Dr Quain said that the appellant was required to travel to Newcastle for work two days later and suffered an onset of numbness in his right foot and cramping while driving. Dr Quain noted that the appellant attended a physiotherapist in early June and then saw his local doctor in July 2018.

   [21] Reply to Application to Resolve a Dispute (Reply), pp 143–150.

2. Dr Quain recorded the treatment offered leading up to the surgery performed at the hands of Dr Hsu on 11 September 2018, noting that the appellant continued to work for the respondent up until 9 September 2018. Dr Quain said that, initially the appellant experienced an improvement in his condition, but returned to work in November 2018, following which there was a deterioration in the appellant’s condition with increasing severe back and leg pain causing him to cease work in about January 2019. Dr Quain noted the history of onset of back pain and left gluteal pain in 2007. Dr Quain reviewed the appellant’s treatment program thereafter and the radiological investigations. He recorded the appellant’s continuing symptoms, and his findings on examination of the appellant. Dr Quain concluded that:

   “In my opinion, Mr Whelan is considerably disabled by, in particular, low back pain with sciatica now apparently affecting both legs, predominantly L5 and S1 on the right side and probably L5 on the left.”[22]

   [22] Reply, p 148.

3. Dr Quain diagnosed a lumbosacral disc protrusion with scarring around the S1 nerve root on the right side, probably accompanied by L5 nerve root irritation on both the left and right sides. In response to specific questions put to him, Dr Quain opined that a delay of seven weeks between an injury and the onset of symptoms was not medically consistent with an acute injury to the spine. Dr Quain added that, generally, it would be expected that acute back pain would have an onset closer to the injury, but it was not uncommon that the onset of back pain could be delayed by several weeks.

4. Dr Quain conceded that long periods of driving could exacerbate the appellant’s pain. He opined that, although there were inconsistencies in the history of onset of the pain, the appellant was suffering from a significant disc protrusion and the mechanism of lifting a heavy plate weighing more than 100 kilograms, would certainly aggravate a pre-existing disc lesion. Dr Quain observed that his conclusion was dependent upon an assumption that the appellant was an honest witness.

5. Dr Quain provided a further supplementary report dated 14 September 2020 in response to specific questions put to him by the respondent’s legal representatives.[23] He was asked to assume that the appellant made no complaint of back pain until July 2018, at which time he complained of having aggravated his back driving to the South Coast of New South Wales. Dr Quain agreed that, in those circumstances, the long period of driving could have aggravated the appellant’s pre-existing back condition.

   [23] Reply, pp 151–152.

The clinical notes, Castle Hill Medical Centre

1. The clinical notes from the Castle Hill Medical Centre commenced from 2007 and concluded on 1 May 2019.[24] Relevantly, the appellant attended Dr Hay on 2 May 2007 complaining of acute left buttock and leg pain, with paraesthesia into the left foot. Dr Hay referred the appellant for an MRI scan, which was reviewed with the appellant in consultation on 8 May 2007. On 22 May 2007, Dr Hay referred the appellant to Dr Loefler. The appellant then attended Dr Hay on a number of occasions in relation to matters which are not relevant to this dispute.

   [24] ARD, pp 105–122.

2. The appellant again consulted Dr Hay in respect of back pain on 13 May 2010. Dr Hay recorded the history of the appellant having lifted a child three days earlier. He noted complaints of left sided low back pain radiating into the left buttock, consistent with the appellant’s complaints made three years previously, and added that the appellant was also getting pain down the right leg when bending over. An MRI scan was arranged, which showed a new annular tear and also disclosed an incidental finding of an unrelated lesion in the sacrum, which was investigated.

3. On 24 May 2011, the appellant attended Dr Hay in respect of various complaints, including back pain associated with paraesthesia in the right foot. Dr Hay referred the appellant to Dr Hsu. The appellant again attended the medical centre in relation to low back pain on 7 November 2011. On this occasion, the appellant was seen by Ms Sandra Ryan, who provided physiotherapy. The consultation was noted as “Workcover.” At a further consultation with Dr Hay on 14 May 2013, the appellant complained of low back pain radiating into the left thigh commencing a week before, which was improving.

4. On 2 August 2018, the appellant attended Dr Hay with a history of an exacerbation of previous back pain two weeks earlier, with symptoms radiating into both legs. Dr Hay arranged an MRI scan, which showed a large L5/S1 disc protrusion. Dr Hay re-referred the appellant to Dr Hsu on 10 August 2018.

5. The appellant next attended Dr Hay in respect of other matters, as well as back pain, on 17 January 2019 and again on 6 February 2019. On 6 February, Dr Hay noted that the appellant was claiming workers compensation for his back pain and disc prolapse, and his symptoms included worsening paraesthesia in the right foot and right shin. Dr Hay recorded that the appellant was working, performing suitable duties. On 13 February 2019, Dr Hay further noted that the appellant was to undergo an epidural steroid injection at the L4/L5 level and on 28 February 2019, Dr Hay recorded that there was only short-term benefit from the injection. The appellant attended again complaining of back pain on 15 March 2019 and 1 April 2019.

The radiological evidence

1. The following radiological investigations were in evidence:

   (a)    an MRI scan reported on 8 May 2007 by Dr Andrew Stuart, indicating that there was:

   “a small left paracentral disc protrusion at the L5/S1 level which contacts the left S1 nerve root but does not compress it.

   Possibly this could be the cause for the symptomatology with no other signs of neural pathway impingement.”[25]

   (b)    an MRI scan report dated 13 May 2010 reported by Dr Y Ong, which relevantly disclosed a “focal annular tear involving the left paracentral disc protrusion at L5/S1 measuring 3 mm”;[26]

   (c)    an MRI scan dated 1 April 2011 reported by Dr K Ho, which investigated a benign lesion of the right iliac bone (the incidental finding identified in an earlier investigation) and referred to a small central disc protrusion at the L5/S1 level, which was described as “stable”;[27]

   (d)    an MRI scan report by Dr James Christie dated 9 August 2018, which showed an “L5/S1 disc protrusion with extruded material extending superiorly in the right lateral recess”,[28] and

   (e)    an MRI scan report by Dr Peter Carr dated 4 February 2019 showing a “broad based right posterolateral and intraforaminal L5/S1 disc protrusion which could irritate either the exiting right L5 or descending right S1 nerve roots.”[29]

   [25] ARD, pp 123–124.

   [26] ARD, pp 129–130.

   [27] ARD, pp 134­–135.

   [28] ARD, p 72.

   [29] ARD, p 71.

Treatment interventions conducted by CT guidance

1. On 27 July 2018, the appellant underwent CT guided injection of local anaesthetic into the neural foramen at the L5/S1 level of his spine at the hands of Dr Robert Ward, directed at treating the appellant’s left sided radiculopathy.[30]

   [30] ARD, pp 140­–141.

2. A CT guided epidural injection of steroid and Marcain was performed by Dr Matthew Lee on 20 February 2019. The treatment was directed to the right and left of the L4/L5 level of the appellant’s spine.[31]

   [31] ARD, p 70.

The Norwest Orthopaedic and Sports Physiotherapy notes

1. The physiotherapy notes disclose that the appellant attended for treatment between 24 January 2012 and 26 July 2018.[32] The notes included a number of consultations throughout 2012, 2013 and 2014 in respect of low back pain. The presenting history recorded that the appellant had suffered left low back pain in 2007, which was assisted by a CT guided injection, but pain recurred in 2011, as well as increasing pain in the month leading up to the first consultation on 24 January 2012. The pain in 2012 was recorded as developing in the right side. The appellant appeared to enjoy some benefit from the treatment, which continued until 17 April 2014.

   [32] Reply, pp 36–67, 88–122, 126–130, 137–142.

2. On 5 August 2014, the appellant attended complaining of bilateral elbow pain. On 23 August 2016, the appellant again attended, on this occasion complaining of insidious onset of low back pain, which he attributed to falling asleep on the couch. The appellant further attended in respect of low back pain on 29 August 2016 and 27 September 2016.

3. The appellant attended the practice on 30 May 2018, complaining of right elbow pain, worse at night. The physiotherapist noted a previous history of low back pain.[33]

   [33] Reply, p 140.

4. The next recorded visit was on 17 July 2018, when the appellant attended complaining of back pain which he attributed to long hours of driving three days previously.[34] The appellant informed the physiotherapist that his elbow pain was improving. He attended again for treatment to his back on 19 and 20 July 2018.

   [34] Reply, pp 65–66.

The clinical notes of the Immex Waterloo medical practice

1. The appellant attended Dr Aji Chara, general practitioner at the Immex Waterloo medical practice for treatment of his back pain on 29 January 2019.[35] Dr Chara took a history of the appellant having lifted a heavy steel plate at work on 24 May 2018, suffering a sudden onset of low back pain. Dr Chara recorded that the appellant enjoyed riding motorcycles, but there were no other factors that may have caused the symptoms. Dr Chara noted that the appellant had undergone surgery at the hands of Dr Hsu, which was of some assistance, but the symptoms worsened after the appellant returned to work causing him to cease work on the day of the consultation. Dr Chara, re-referred the appellant to Dr Hsu.

   [35] Reply, p 69.

The High Street Family Doctors

1. The appellant also attended the High St Family Doctors from 28 January 2017.[36] On 19 July 2018, the appellant consulted Dr Monique Moloney, complaining of an acute exacerbation of his previous lumbar pathology. Dr Moloney recorded that the appellant had travelled to the South Coast on the weekend, which involved driving for an extended period, following which he developed pain in the lumbar region, which progressively worsened.

   [36] Reply, pp 71–87.

2. The appellant consulted Dr Rachel Jack of the same surgery on 20 July 2018 and again on 26 July 2018. Dr Jack recorded that the appellant had improved but returned to work and the symptoms flared again. Dr Jack issued a medical certificate on 26 July 2018, certifying that the appellant was not fit for work because of back pain.[37] On 19 September 2018, Dr Jack noted that the appellant had some improvement in the radicular symptoms following the lumbar discectomy performed by Dr Hsu.

   [37] Respondent’s AALD dated 29 January 2021, p 5.

3. On 16 March 2019, the appellant consulted Dr Maiyoori Jeyaprakash of the same practice. Dr Jeyaprakash recorded that the appellant provided a detailed account of his back problems and requested a letter of support in relation to a claim for workers compensation. The first recorded mention of there having been a work-related injury in May 2018 was to Dr Christina Wynn of the same surgery in a consultation on 16 May 2019.

Other documentary evidence

1. The appellant relied on a document from the Sports Physiotherapy and Work Rehabilitation Centre at Penrith, which consisted of a list of the appellant’s appointment dates with that organisation.[38] The list confirmed appointments on 30 May 2018, 17 July 2018, 19 July 2018 and 20 July 2018.

   [38] ARD, p 192.

2. On 10 September 2018, the appellant completed a personal accident and sickness claim form with annexed medical certificate.[39] The appellant described his injury as “a deterioration of existing condition” and indicated that the accident first occurred on 19 July 2018. The appellant disclosed having had previous treatment in respect of his back condition in 2007 and 2011. In relation to a query as to whether the accident arose out of his employment, the appellant ticked the box indicating “No.” A section of the document was required to be completed by a medical doctor. Dr Hay completed that section, noting the past history of back pain in 2007, 2010 and 2013 and nominating the onset of symptoms occurring in mid July 2018, with no cause identified.

   [39] Reply, pp 29–35.

3. The appellant completed an incident/injury form on 23 January 2019.[40] The appellant recorded the date of injury as being 24 May 2018, said that the cause of the injury was lifting a steel plate, and indicated that he gave notice of injury on 23 January 2019 to Mr Cogan.

   [40] ARD, pp 17–18.

4. In an email to Dr Hay of the Castle Hill Medical Centre, the appellant provided his workers compensation claim details and a copy of the incident/injury claim form. He advised that his injury date was 24 May 2018 and that he notified his employer of the injury on 23 January 2019.[41]

   [41] ARD, p 73.

5. The respondent arranged for a desktop investigation into the appellant’s social media activities for the purpose of assessing the appellant’s claim for compensation. Mr Paul York, investigator with Surefact Australia Pty Ltd, reported to the respondent on 15 February 2019.[42] The investigator produced extracts from the appellant’s Facebook posts in which the appellant referred to his back condition. The following extracts are potentially relevant to the appellant’s claim:

   [42] Reply, pp 16–28.

   (a)    on 25 May 2018, the appellant commented that a “riveting weekend of work” awaited him at Chittaway Bay;

   (b)    on 20 July 2018, the appellant said that he had “just aggravated the nerve” and thought it was “from driving I expect.”

   (c)    on 28 September 2018, he complained that his sickness benefit claim had been rejected, commenting:

   “Like it was my choice to have surgery.

   Not my employer’s fault, but I would have been better off lying and claiming workers compensation.

   Sadly, I am too honest for that.”

   (d)    on 22 October 2018, he indicated that he was almost pain free following the surgery performed by Dr Hsu;

   (e)    on 30 October 2018, the appellant mentioned that he had worked in his garage all day fixing a friend’s motorcycle;

   (f)    on 9 November 2018, the appellant posted photographs of a motorcycle frame.

THE MEMBER’S REASONS

1. The Member noted that the appellant alleged that he suffered injury to his back on 24 May 2018, or in the alternative on the deemed date of 9 September 2018 and further in the alternative on the deemed date of 23 January 2019. She observed that the allegation that the injuries deemed to have occurred on 23 January 2019 or 9 September 2018 were pleaded as an aggravation, acceleration, exacerbation or deterioration of a disease.

2. The Member referred to the dispute notices issued by the respondent pursuant to s 78 of the 1998 Act on 13 March 2019 and 8 April 2019, in which the respondent denied liability for the cost of a lumbar epidural injection, and disputed liability for the injury on the basis that:

   (a) the appellant failed to give notice of his injury and make a claim for compensation within the time prescribed by ss 254 and 261 of the 1998 Act;

   (b)    the injury did not arise out of the appellant’s employment as required by s 4 of the 1987 Act;

   (c)    the appellant’s employment was not a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act, and

   (d)    the appellant’s employment was not the main contributing factor to the disease injury, as required by s 4(b) of the 1987 Act.

3. The Member noted that the appellant pleaded that the injury on 24 May 2018 resulted from lifting a steel plate weighing approximately 100 kilograms, or that the deemed injuries on 9 September 2018 and 23 January 2019 were caused by lifting heavy objects, including steel road plates, as well as driving long distances over rough and unsealed surfaces. The Member further noted that the respondent raised a dispute that the appellant was injured as alleged and raised an issue that the appellant had not previously made any claim that he was injured on 9 September 2018 or 23 January 2019.

4. The Member summarised the appellant’s statement evidence, including the appellant’s explanation as to why he did not give notice of injury or make a claim for compensation within the time required by the legislation. The Member referred to all of the Facebook posts reported by Surefact Australia. The Member noted that the appellant’s post on 25 May 2018, which made reference to the appellant’s pending weekend work commitments, made no reference to the appellant having suffered an injury to his back on 24 May 2018. The Member further noted that in the entry made on 20 July 2018, the appellant commented that he had aggravated his nerve and suspected that the aggravation was from driving. The Member also took note of the appellant’s comment made on 28 September 2018 that the back pain was not the respondent’s fault, and it would have been better for him to lie and claim compensation for the condition.

5. The Member referred to the incident/injury form completed on 23 January 2019 and summarised the evidence of Ms Vidakovic. The Member commented that the medical certificate issued by Dr Jack on 26 July 2018 was not a SIRA certificate of capacity and provided no reason for the appellant’s back pain. The Member observed that the personal accident and sickness claim form stated that the accident occurred on 19 July 2018 and the appellant had ticked “no” in relation to whether the condition was due to an injury arising out of employment. Further, Dr Hay had reported in the form that there was “no cause established” for the diagnosis, the onset of symptoms was in mid-July 2018 and the same condition had been present in 2007, 2010 and 2013. The Member also noted Ms Vidakovic had attached to her statement a poster informing workers as to the steps to be taken in the event of an injury.

6. The Member summarised the histories and opinions recorded in the medical reports relied on by the parties and the entries in the clinical notes from Castle Hill Medical Centre, High Street Family Doctors, Immex Waterloo and Norwest Orthopaedic & Sports Physiotherapy. The Member conducted a detailed review of the submissions made by both parties.

7. The Member turned to the consideration of whether the appellant suffered injury as alleged. She observed that, in the various statements, the appellant had attempted to explain the contradictions between his account and the contemporaneous material, including his Facebook posts. The Member expressed the view that she should treat the appellant’s evidence with caution. She said that, on the basis of the evidence from Mr Romeo and the appellant’s text message to Mr Cogan, she accepted that the appellant had lifted a heavy steel road plate on 24 May 2018, despite the inconsistencies in the appellant’s assertion as to the weight of the plate. The Member observed, however, that the appellant did not mention in the text message to Mr Cogan that day that he had injured his back. The Member further observed that Mr Romeo’s statement was made one year after the alleged injury and was not specific as to the appellant’s complaints of a sore back. The Member considered that it may possibly have been that the appellant’s complaints commenced in July 2018, so that she was better assisted by the more contemporaneous evidence and the appellant’s claims documentation.

8. The Member noted that the personal accident and sickness claim form completed by the appellant on 10 September 2018 (four months after the alleged injury) indicated that the injury occurred on 19 July 2018, did not arise out of his employment, and he was not making a claim for workers compensation. The Member observed that the appellant’s explanation for giving the date of 19 July was that that date was when his back pain became more acute, and he consulted the doctor. The Member said that the question specifically asked in the form was “When did the accident/sickness first occur?” She said that she felt it unlikely that the appellant would nominate a date of 19 July 2018 if his pain had commenced on 24 May 2018. In relation to the appellant’s response of “No” to the question of whether the injury related to work, the Member considered that the appellant may not have been aware that the condition was work related if it had been caused by the heavy nature of the work he performed, especially in the context of his long history of symptoms. She reasoned, however, that the allegation was that of a frank injury, which had occurred only four months prior to the completion of the form. The Member said that if the appellant had experienced symptoms since that event, she expected that he would have recognised the connection with his employment.

9. The Member referred to the appellant’s explanation that he was under the influence of heavy medication at the time of completing the form. The Member noted that the appellant had previously been employed as a claims assessor and would have understood the importance of providing accurate information on a claim form. She added that the appellant had been able to provide accurate details of the history and the names and contact details of the medical providers who had treated him in respect of his prior back issues, including the treatment provided and the diagnoses. The Member said that that indicated that the appellant was taking care to provide the correct information in the form and it was not consistent with somebody completing the form while heavily affected by medication. The Member was of the view that it was difficult to comprehend why the appellant, when completing the workers compensation form in January 2019, would rely on the date of the incident on 24 May 2018, but not attribute his condition to that incident in the earlier personal accident or sickness form completed on 10 September 2018.

10. The Member looked to the appellant’s explanation for the post on his Facebook page that he should have lied and alleged a work-related injury. She noted that the explanation was that he was in pain, heavily medicated and frustrated, and that he later regretted those remarks, which he described as throw away comments and “stupid.” The Member conceded that it was probable that many people post stupid comments on social media and subsequently regret them. She observed that the Facebook posts were not of themselves determinative of the issue but taking into account the evidence discussed, it was difficult to accept the appellant’s explanations.

11. The Member turned to the contemporaneous medical evidence, which she described as “problematical.” She re-iterated that the appellant may not have been aware that he could make a claim for an aggravation of his prior back condition, and thus, did not report it or make a claim. She said, however, that she would have expected that, if the symptoms became apparent from when he lifted the steel plate, the appellant would have mentioned the incident to his treatment providers. The Member referred to the appellant’s evidence that he sought treatment from the physiotherapist on 30 May 2018 for a right elbow condition, at which time his back was also sore. The Member observed that, while there was a reference to a history of back pain, the entry in the physiotherapist’s records on that day did not mention any back pain at that consultation and did not record any reference to the appellant having suffered any injury on 24 May 2018. The Member thought it surprising that if the appellant was suffering with back pain at the time of the consultation, the appellant did not seek treatment for his back in that consultation, particularly when the consultation was within a week of the alleged date of injury.

12. The Member noted that the appellant relied upon a receipt for pain killers issued by a chemist at Chittaway on 25 May 2018. She accepted a submission made by the respondent that the pain killers could very well have been for the treatment of the appellant’s elbow pain, which the physiotherapist recorded had been present for four to six weeks.

13. The Member referred to the entry in the physiotherapist’s notes on 17 July 2018, where it was recorded that the appellant had been driving for an extended period three days earlier and “now” had low back pain. The Member considered that this entry was consistent with that of Dr Moloney recorded on 19 Jul 2018 that the appellant had driven for an extensive period to the South Coast on the previous weekend and developed pain in his lumbar region. The Member observed that there was no evidence that the trip to the South Coast was work-related and the appellant’s evidence was silent in terms of any requirement to travel to the South Coast for work. She said that, in fact, his evidence referred to usually travelling for work in a northerly direction.

14. The Member further referred to the entry in Dr Hay’s notes on 2 August 2018, where Dr Hay recorded a two week history of exacerbation of the appellant’s lumbar pain with radiation to both legs. The Member pointed out that there was no mention of any incident on 24 May 2018, or complaint of symptoms from that date, and the two week history was consistent with the complaint of pain following the appellant’s long distance drive to the South Coast. The Member noted that in his report dated 1 May 2019, Dr Hay referred to the consultation on 2 August 2018 and asserted that in that consultation, the appellant complained of pain radiating into both legs following an incident at work. The Member had difficulty accepting Dr Hay’s evidence on that point because there was no reference to an incident at work in the clinical entry and the entry recorded that the symptoms began two weeks prior to the consultation.

15. The Member cited Davis v Council of the City of WaggaWagga,[43] noting that case as authority to say that she should treat the history recorded in clinical notes, which are not always an accurate record of the patient’s complaints, with care. The Member considered, however, that the history recorded in the clinical notes made on 2 August 2018 bore no similarity to the history provided in Dr Hay’s report, which was written nine months after the consultation.

    [43] [2004] NSWCA 34.

16. The Member added that Dr Hay was of the opinion that the appellant’s disc protrusion occurred in July 2018 and was brought about by the appellant’s employment and the injury occurring at work. The Member observed that Dr Hay did not explain what injury he was referring to, and the opinion was inconsistent with Dr Hay’s statement in the sickness and accident form completed by him in September 2018 that there was “no cause established” for the appellant’s diagnosis. The Member concluded that she attributed little weight to the report of Dr Hay.

17. The Member considered the evidence of Dr Hsu. She noted that Dr Hsu had been the appellant’s long term treating specialist, but had not seen the appellant for eight years when the appellant consulted him on 15 August 2018. The Member said that Dr Hsu did not record a history of injury, either on 24 May 2018 or otherwise. The Member referred to Dr Hsu’s report dated 2 August 2019, directed to the appellant’s legal representatives, in which Dr Hsu expressed the view that the appellant’s work injuries were a substantial contributing factor to his symptoms, but did not identify what injuries the appellant suffered at work. The Member concluded that she afforded little weight to the opinion of Dr Hsu.

1. The Member turned to the question of whether the appellant suffered injuries which were deemed to have occurred on 9 September 2018 and 23 January 2019. She noted the appellant’s allegation was that those injuries were an aggravation of a disease caused by heavy work and excessive driving or, in the alternative, that the nature and conditions of employment aggravated the appellant’s lumbar disease. The Member observed that the appellant submitted that he had always maintained that his condition was aggravated after 24 May 2018, yet the appellant, in his statement dated 26 October 2020, stated that he had always maintained that his injury occurred on 24 May 2018. The Member said that the first assertion that the appellant made about excessive driving was after Dr Quain had conceded that driving for a long period could aggravate a pre-existing disc injury. The Member observed that, in fact, while the appellant provided evidence of having to travel to various areas and often travelling over rocky and bumpy surfaces, he did not go so far as to complain of the effect that travel had on his back condition or refer to any employment requirement to travel to the South Coast. The Member pointed out that Ms Vidakovic stated that the appellant spent a total of 10 nights away from home over the course of the three years he was employed with the respondent, four of which post-dated 24 May 2018. Further, Ms Vidakovic stated that driving over unsealed roads and for long distances would be unusual and the odometer reading on the appellant’s car was consistent with a reading of the appellant simply making a round trip to and from work each day, or visiting clients in the CBD area.

2. The Member pointed out that, in any event, there was no medical support for the assertion that the appellant suffered an aggravation injury as a consequence of the “nature and conditions” of the appellant’s employment.

3. The Member turned to the opinion of Dr Bodel, which was that it was “quite clear” from the history that the specific events on 24 May 2018 aggravated, accelerated, exacerbated and deteriorated the appellant’s prior disc pathology and that the appellant suffered a disc prolapse at the L5/S1 level to the right as a consequence of the incident on 24 May 2018. The Member considered that the history was not “quite clear.” She said that the appellant certainly lifted a heavy plate on 24 May 2018, but the contemporaneous medical evidence did not support the case that the appellant suffered an injury as a result of that activity. The Member observed that the medical evidence supported the contrary proposition. That is, that if there had been an aggravation of the appellant’s back condition, it was as a result of him having driven to the South Coast in mid-July 2018.

4. The Member referred to the evidence of Dr Quain, who was of the opinion that a seven week delay in the reporting of symptoms was not medically consistent with having suffered an acute back injury on 24 May 2018 and accepted that driving to Newcastle several days after the injury could exacerbate the appellant’s symptoms. The Member observed that Dr Bodel also reported the development of niggling pain in the appellant’s back, right buttock and thigh after driving to Newcastle. The Member said, however, that this history was inconsistent with the record made by the physiotherapist on 30 May 2018 and the appellant did not refer to this occurrence in any of his statements.

5. The Member rejected Dr Bodel’s opinion on causation because it was based on a history that was not supported by the contemporaneous evidence.

6. The Member returned to the evidence of Dr Quain and noted that he was asked to assume that the appellant did not make a complaint of back pain until 19 July 2018, when he provided a history of an acute onset of back pain while driving to the South Coast. The Member recorded that Dr Quain was of the opinion that this journey could have been responsible for an aggravation of a pre-existing disc lesion.

7. The Member concluded that:

   “The evidence in this matter is such that I do not feel an actual persuasion that the applicant sustained injury arising out of or in the course of his employment with the respondent, either on 24 May 2018, or deemed to have occurred on 9 September 2018 or 23 January 2019. The applicant’s own evidence and the contemporaneous medical evidence is insufficient for him to meet the onus of establishing ‘injury’, on the balance of probabilities.”[44]

   [44] Whelan v Stowe Australia Pty Ltd [2021] NSWPIC 5, [235].

8. The Member further concluded that, having determined the issue of injury in the respondent’s favour, it was not necessary for her to determine the remaining issues as to whether the appellant gave notice of injury or made his claim within the time prescribed by ss 254 and 261 of the 1998 Act.

9. The Certificate of Determination issued on 5 March 2021 records:

   “The Commission determines:

   1.That there is an award for the respondent.”

GROUNDS OF APPEAL

1. The appellant brings the following grounds of appeal:

   (a)    Ground One: error of law by failing to give weight to the evidence of Mr Kye Romeo, and

   (b)    Ground Two: error of law by failing to determine primary questions of fact.

SUBMISSIONS

Ground One

The appellant’s submissions

1. The appellant submits that the Member erred in law by failing to give any weight to the evidence of Mr Romeo. The appellant points to Mr Romeo’s statement that the appellant was complaining of back pain in the “days and weeks” following the incident involving lifting the heavy steel plate on 24 May 2018. The appellant points out that, at the time of making his statement, Mr Romeo was in the employ of the respondent.

2. The appellant refers to the Member’s reasons for dismissing the evidence of Mr Romeo and submits there was no basis upon which the Member could dismiss that evidence. The appellant indicates that Mr Romeo was not cross-examined and says that there was no application to do so. The appellant asserts that there was no evidence to contradict that of Mr Romeo and no part of the statement was “demonstrably incorrect.” The appellant contends that Mr Romeo’s evidence was not contradictory to the version of events suggested in the clinical records and the Member’s outright rejection of Mr Romeo’s evidence appears to be based on the wrong conclusion that Mr Romeo’s evidence and the clinical records were “mutually exclusive.”

3. The appellant contends that Mr Romeo’s evidence was clear evidence of a contemporaneous complaint of pain in the lower back immediately after the incident and the Member failed to afford that evidence any weight. The appellant submits that the Member inferred that she had to either accept that Mr Romeo’s evidence corroborated that of the appellant or accept that the cause of the injury was “driving” as recorded by Dr Moloney in the clinical note dated 19 July 2018.

4. The appellant asserts that it is entirely consistent that he aggravated his back condition on 24 May 2018, complained to Mr Romeo, and further aggravated the condition while driving, as described in the clinical note. The appellant submits that, to the extent the Member considered that she had to choose between the two causes for the injury, she failed to provide adequate reasons for that consideration, which constitutes an error of law.

The respondent’s submissions

1. The respondent concedes that Mr Romeo was working with the appellant on the evening of 24 May 2018 and helped the appellant lift the steel road plate. The respondent submits that Mr Romeo’s statement, in which he gave specific details of the activities undertaken that evening, was made some 12 months after that date. The respondent refers to Mr Romeo’s recollection that in the days and weeks after the injury, the appellant complained of back pain on multiple occasions, but Mr Romeo did not recall the specific complaints. The respondent asserts that it was entirely possible that the appellant’s complaints commenced from July 2018. The respondent submits that Mr Romeo’s evidence is vague and non-specific about the appellant’s complaints of back pain.

2. The respondent asserts that the Member gave proper consideration to Mr Romeo’s evidence but ultimately was more assisted by the contemporaneous medical evidence and the claims documentation completed by the appellant. The respondent submits that the Member was correct to apply little weight to the evidence of Mr Romeo and to look for guidance from the significant amount of contemporaneous factual and medical material.

3. The respondent disputes the assertion by the appellant that the Member considered that the appellant’s version of events and the version recorded in the clinical notes were mutually exclusive. The respondent submits that the Member took into account the entirety of the evidence before her, including that of Mr Romeo, to which she gave proper consideration. The respondent submits that, ultimately, the Member was not satisfied that Mr Romeo’s recollection was sufficient for her to be persuaded that the appellant sustained an injury to his back on 24 May 2018, which did not find support in the contemporaneous medical evidence.

4. The respondent refutes the appellant’s submission that Mr Romeo’s evidence was “clear evidence” of the appellant complaining of back pain immediately following the incident involving lifting the steel road plate. The respondent contends that the evidence of complaints of pain in the days and weeks following that event could not be considered contemporaneous evidence in support of the appellant’s allegation.

5. The respondent refers to the Member’s assessment of the evidence which she found relevant and describes the Member’s evaluation of that evidence as detailed and comprehensive and submits that the Member provided a well-reasoned explanation for her ultimate determination. The respondent refutes the assertion made by the appellant that the Member erred by failing to provide adequate reasons for her decision. The respondent submits that the ground of appeal should be dismissed.

Ground Two

The appellant’s submissions

1. The appellant contends that the Member failed to determine primary questions of fact before proceeding to a determination in respect of the appellant’s alternate allegation that he suffered an aggravation of his lumbar disease condition. The appellant refers to his claim of injury resulting from lifting heavy objects and driving long distances, at times over rough, unsealed surfaces, which caused aggravation of the pre-existing pathology in his lumbar spine. The appellant describes the Member’s reasoning as “convoluted and confusing”,[45] and submits that the error stems from the Member’s failure to make relevant findings of fact in respect of this alternate claim.

   [45] Appellant’s submissions, [20].

2. The appellant asserts that the Member appears to have concluded that the appellant’s lumbar pathology was caused by driving. The appellant says that, if that was the case, the Member ought to have made that finding and then looked to the competing causes, both work-related and non-work related. The appellant further submits that if the cause of the appellant’s aggravation was driving, then the Member was required to determine whether the driving arose out of or in the course of the appellant’s employment. The appellant contends that the Member failed to give consideration to that question, which amounted to a failure to make a primary finding of fact before determining the cause of the injury.

The respondent’s submissions

1. The respondent disputes that the Member erred in the manner alleged. The respondent refers to the Member’s reasons for rejecting the appellant’s “alternative” claim and submits that there is no medical support for the allegation that the appellant suffered an aggravation of his back condition as a result of the “nature and conditions” of his employment.

2. The respondent refers to the history provided by the appellant to Dr Quain that he aggravated his back while driving to Newcastle in the days after the incident on 24 May 2018. The respondent points to the Member’s observations that the history provided to Dr Quain was not consistent with the history recorded by the appellant’s treatment providers and that the appellant had not made mention of that allegation in any of the appellant’s multiple earlier statements. The respondent further points to the Member’s observation that the medical support for the proposition that driving aggravated the appellant’s pre-existing pathology attributed the aggravation to the drive to the South Coast in mid-July 2018, and there was no suggestion that this journey was work-related.

3. The respondent submits that the Member did not make a finding that driving caused an aggravation of the appellant’s back condition. The respondent submits that the Member only went so far as to observe that the contemporaneous medical evidence indicated that the onset of the appellant’s symptoms occurred while undertaking non-work related activities.

The respondent’s concluding submissions

1. The respondent submits that, in respect of both grounds of appeal, the Member determined that the appellant had failed to discharge his onus of proving, on the balance of probabilities, that he suffered injury as alleged. The respondent submits that the Member did not err, either in fact, law or discretion, in the manner described by Roche DP in Raulston v Toll Pty Ltd.[46] The respondent contends that the conclusions reached by the Member were open to her.

   [46] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).

2. The appellant did not file submissions in reply or further submissions upon receipt of the transcript of proceedings.

THE RELIEF SOUGHT

1. The appellant seeks to have the Certificate of Determination revoked and the matter re-determined by a Presidential member, or alternatively remitted to a different non-presidential member for re-determination.

2. The appellant seeks orders confirming the Member’s Certificate of Determination.

CONSIDERATION

1. The right to pursue an appeal from a decision of a Member is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Member, where such error is of fact, law or discretion.

2. The Member was required to determine whether the appellant suffered injury as alleged, which is a factual determination. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[47] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[48]

   [47] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308.

   [48] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.

3. In determining whether the Member has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[49] have been consistently applied in the Workers Compensation Commission. They were summarised by Deputy President Roche in Raulston as follows:

   “...

   (a)     A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

   (c)     It may be shown that a [Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.

   The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

   ‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[50]

   [49] (1966) 39 ALJR 505.

   [50] Raulston, [19]–[20].

4. The Court of Appeal in Northern NSW Local Health Network v Heggie[51] considered the above principles in the context of the Workers Compensation Commission’s powers on appeal and said as follows [citations omitted]:

   “A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.”

   [51] [2013] NSWCA 255; 12 DDCR 95, [72].

5. Those principles are equally applicable to appeals from decisions of members appointed to the Workers Compensation Division of the Personal Injury Commission.

Ground One

1. The appellant asserts error on the part of the Member by failing to afford weight to the evidence of Mr Romeo (Ground One of the appeal). The appellant asserts that this error is an error of law. The appellant points to the fact that Mr Romeo was not cross-examined and there was no application made to do so.

2. The Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence.[52] Mr Romeo’s statement was made approximately 12 months after the alleged injury and did not make any reference to the appellant having indicated that his symptoms were attributable to the incident on 24 May 2018. The Member referred to that lack of contemporaneity and to the lack of specificity in respect of the appellant’s complaints of back pain. The Member reviewed the contemporaneous complaints made by the appellant to his treatment providers, including the entries in the physiotherapist notes on 30 May 2018 referring to treatment of the right elbow within a week of the incident, and on 17 July 2018, when the appellant attended complaining “now” of back pain from driving. The Member pointed to the entry in Dr Moloney’s clinical notes on 19 July 2018, which also referred to the development of back pain after driving, and to the entry in Dr Hay’s notes on 2 August 2018, which recorded a two week history of lumbar pain. The Member observed that there was no reference in those notes to the incident on 24 May 2018 and the only reference to a cause for the appellant’s symptoms was that of driving.

   [52] Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [110]–[112].

3. The Member concluded that she was “better assisted” by the contemporaneous medical evidence than the evidence of Mr Romeo. Thus, the Member weighed the evidence of Mr Romeo’s recollections and the evidence from the entries in the clinical notes of three different treatment providers made within weeks of the incident on 24 May 2018. She also took into account that the appellant himself did not record that the symptoms were caused by that event in the sickness and accident form completed on 10 September 2018, adding that Dr Hay had recorded in that document that there was “no cause established”.

4. While Mr Romeo’s evidence was supportive of the appellant having lifted the heavy steel plate, it did not go so far as to constitute evidence, of itself, that the appellant’s symptoms arose from that event. The Member did not reject the evidence of Mr Romeo, she found it of little assistance. Such a conclusion was open to her when the evidence is analysed in the context of the more contemporaneously recorded evidence that was silent about the symptoms being referrable to the incident lifting the steel plate and attributed the onset of back pain to subsequent and different causes.

1. The authorities discussed above clearly identify what is required to establish an error on the part of the Member in determining a question of fact. It was open to the Member to prefer the evidence contained in the various clinical notes recorded within weeks of the event on 24 May 2018. The Member did not overlook material facts, or arrive at a view that was contrary to a preponderance of other evidence. The Member committed no error of fact or law in determining that Mr Romeo’s evidence was of little assistance to her, when considered in the context of the substantial body of evidence about the onset and cause of the appellant’s lumbar symptoms. This ground of appeal is not made out.

Ground Two

1. The appellant alleges error in that the Member failed to determine “primary questions of fact” before determining the appellant’s alternate allegation of injury in the form of an aggravation of his pre-existing lumbar spine pathology. The appellant describes the Member’s reasoning as “convoluted” and “confusing.”

2. It is clear from the Member’s reasoning that, when she turned her mind to whether the appellant suffered an aggravation of his lumbar disease as a result of heavy lifting and long-distance driving over rough terrain, she took into account the following matters:

   (a)    the appellant had asserted in his statement dated 26 October 2020 that his symptoms were caused by the incident on 24 May 2018;

   (b)    the appellant did not make a complaint that his work involved long hours of driving until Dr Quain had expressed the view that such an activity could cause lumbar symptoms;

   (c)    while in his statement the appellant spoke of driving to various locations, he did not state that the long hours of driving aggravated his back condition;

   (d)    the appellant did not give evidence that the drive to the South Coast, which was noted in Dr Moloney’s clinical entry on 19 July 2018 as a precipitator of his symptoms, was a work related journey;

   (e)    Ms Vidakovic’s evidence painted a different picture than that put forward by the appellant;

   (f)    if there was an aggravation of the appellant’s lumbar pathology, the contemporaneous medical evidence indicated that it was likely to have been from the drive to the South Coast, and

   (g)    there was no acceptable medical opinion supporting a causal connection between the nature of the appellant’s work and an aggravation of the appellant’s lumbar symptoms or pathology.

3. It is abundantly clear from the Member’s reasoning process as to why she concluded that the appellant had not satisfied her that he was injured as pleaded in respect of his “alternate” allegation of aggravation of his lumbar disease. The appellant does not explain why he found the Member’s reasoning convoluted and confusing and the Member’s reasoning provides a clear pathway upon which she reached her conclusion.

4. The appellant asserts that it “appears” that the Member determined that the appellant’s symptoms were caused by the long drive to the South Coast. The Member made no such determination. Her observation was that if the aggravation was a result of long driving, it was likely to have been because of the journey to the South Coast. Such an observation was not contrary to the evidence. In any event, the lack of sufficient evidence to establish that the cause of his symptoms was the purported driving conditions, including the telling lack of medical evidence to support the appellant’s assertion, was sufficient to dispose of the appellant’s claim of injury resulting from the nature and conditions of his employment.

5. The appellant does not point to any other “primary facts” that the Member was required to determine before reaching her ultimate conclusion. It follows that no error of fact or law is demonstrated, and this ground of appeal fails.

CONCLUSION

1. The appellant has failed to established error on the part of the Member and the appeal fails. The Member’s Certificate of Determination dated 5 March 2021 is therefore confirmed.

DECISION

1. The Member’s Certificate of Determination dated 5 March 2021 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

8 November 2021