Woolstar Pty Ltd v Viapiana - [2023] NSWPICPD 74

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Woolstar Pty Ltd v Viapiana [2023] NSWPICPD 74
APPELLANT:	Woolstar Pty Ltd
RESPONDENT:	Patricia Viapiana
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3895/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	21 November 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 21 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Duty to give reasons – application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; causation – application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, expert evidence – application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; alleged constructive failure to exercise jurisdiction – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 77 ALJR 1088, Day v SAS Trustee Corporation [2021] NSWCA 71; Wang v State of New South Wales [2019] NSWCA 263
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
BBW Lawyers
Respondent:
Ms E Grotte, counsel
John Peisley & Associates
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	21 November 2022

INTRODUCTION AND BACKGROUND

Patricia Viapiana (the worker/respondent) was employed by Woolstar Pty Ltd (the employer/appellant) as a storeperson at the Woolworths Wyong Distribution Centre. On 2 June 2006 she was picking product when a package of canned tuna became stuck on some rollers. As she attempted to free the package she suffered right shoulder pain, which she reported. She developed right sided neck symptoms that deteriorated with time. She came to shoulder surgery involving acromioplasty and subacromial decompression in September 2008. On 3 September 2009 the parties entered into a complying agreement providing for lump sum compensation of $15,500 in respect of 12 per cent permanent impairment. The worker worked on, performing lighter duties, with the assistance of medication. The employer withdrew those duties in May 2014 and terminated the worker’s employment. The worker was paid ongoing weekly compensation.
The worker was assessed by Dr Burns, an Approved Medical Specialist (AMS) of the former Workers Compensation Commission (WCC), and a Medical Assessment Certificate (MAC) was issued dated 21 July 2014. The MAC certified 14 per cent whole person impairment, 7 per cent in respect of the cervical spine and 8 per cent in respect of the right upper extremity (shoulder).[1] The worker sought to appeal the decision of the MAC. The appeal did not proceed as a Delegate of the Registrar (of the WCC) was not satisfied that at least one of the grounds specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was made out.[2] A Certificate of Determination was issued on 25 March 2015 providing for a further sum of $3,000 for the additional permanent impairment assessed.
[1] Dr Burns’ Medical Assessment Certificate 21/7/14, Application to Resolve a Dispute (ARD), pp 54–61.
[2] Decision of Mr Baxter, Delegate of the Registrar, 18/2/15.
The employer, on 1 September 2014, advised that it disputed any injury be way of right carpal tunnel syndrome.[3]
[3] ARD, pp 124–127.
The worker came under the care of Dr Coughlan, a neurosurgeon. He initially recommended conservative treatment of the ongoing neck pain.[4] In his report dated 24 February 2018, Dr Coughlan recorded there was “very significant ongoing neck pain”. Dr Coughlan commented that surgery was “an option” but at that point recommended “radiofrequency denervation of the facet joints under fluoroscopy”.[5] On 4 October 2018, Dr Coughlan said the “radiofrequency neurotomy” had led to significant improvement in the worker’s occipital neuralgia. He said imaging showed “significant collapse at C6/7”. He said he had discussed “anterior cervical discectomy and fusion” with the worker.[6]
[4] Dr Coughlan’s report, 29/11/2017, ARD, p 43.
[5] ARD, p 41.
[6] ARD, p 40.
On 22 October 2018 Dr Coughlan reported to EML (the employer’s insurer). He described the worker as “a good candidate for surgery”. He said the proposed surgery would “improve her axial neck pain” and he felt there was a good prognosis. He said there had been significant ongoing neck pain since the injury in 2006, “a constant since the workplace injury, prior to this, she had not experienced neck pain”. He said if not for the workplace injury the worker “would not have the condition she presents with”.[7]
[7] ARD, pp 38–39.
The employer’s solicitors issued a dispute notice dated 5 February 2019. It disputed the recommended surgery was “reasonably necessary” as a result of the work injury.[8] Dr Coughlan reported to the worker’s general practitioner on 27 March 2020. He said there was “severe arm pain bilaterally and axial neck pain … symptoms have escalated over the course of the past 12 months”. There was “bilateral arm pain in the C7 distribution and also very severe neck pain”.[9] The doctor was hoping to “expedite her surgery”.
[8] ARD, pp 115–117.
[9] ARD, p 36.
The worker was also assessed (at her solicitor’s request) by Dr McKechnie, a neurosurgeon, who reported on 15 March 2021. Dr McKechnie said the “signs and symptoms are consistent with the work related injury”. Dr McKechnie said there was “MRI and CT confirmation of disc pathology mainly at the C6/7 level”. He said it was not unreasonable to offer the patient surgery if her residual pain was not manageable: “[s]he has essentially exhausted all other treatment options.” He said “anterior C6/7 discectomy and fusion is a reasonable surgical option”. There was a “moderate chance of symptomatic improvement” and a “5% risk of complication or worsened pain”.[10]
[10] ARD, pp 44–46.
The claim in respect of the cervical surgery was listed for hearing on 17 November 2022 in the Personal Injury Commission (the Commission). Ms Grotte appeared for the worker and Mr Grimes for the employer. Both counsel addressed. The Member stood the matter over to 21 November 2022 for the delivery of an oral decision.[11] The Commission issued a Certificate of Determination dated 21 November 2022.[12] The determination and orders read as follows:
“The determination of the Commission in this matter is:
1. The C6/7 anterior cervical decompression and fusion proposed by Dr Coughlan is reasonably necessary as a result of the injury sustained by the [worker] in the course of her employment with the [employer] on 2 June 2006.
The Commission orders that:
1. Pursuant to section 60(5) and section 61(4A) of the Workers Compensation Act 1987 the [employer] is to pay for the costs of the C6/7 anterior cervical decompression and fusion proposed by Dr Coughlan, and expenses related to that surgery.”
[11] Transcript 17/11/22 (T1), T1 43.10–26.
[12] Viapiana v Woolstar Pty Ltd (W3895/22, 21 November 2022).

THE MEMBER’S REASONS

The Member noted the employer conceded the worker sustained injury to her cervical spine and her right shoulder on 2 June 2006. It denied that the proposed surgery was reasonably necessary as a result of this injury.[13] The Member noted the appearances and the material in evidence before him.[14]
[13] Transcript 21/11/2022 (T2), T2 1.24–39.
[14] T2 1.41–2.6.
The Member referred to the description of the event causing injury; as the worker went to “yank it [the six pack of tuna product] clear” she immediately felt pain in the right shoulder and lower right neck area. There was right shoulder surgery in September 2008 after which the worker returned to light work until it was withdrawn in 2014 and she was terminated. She saw Dr Coughlan in 2017 “in regard to ongoing neck pain”. He advised neck surgery should be undertaken but the employer declined payment on several occasions. The worker said she would like to have the surgery as she was suffering a great deal of pain, her current medications were Oxycodone, Lyrica, Panadeine Forte and antidepressants.[15]
[15] T2 2.12–32.
The Member described Dr Coughlan’s reports dated 8 November 2017, 29 November 2017 and 4 October 2018. In the last of these Dr Coughlan referred to a “significant collapse at C6–7” and recommended anterior cervical discectomy and fusion at that level. This was confirmed in the doctor’s report to EML dated 22 October 2018. He described employment as the main contributing factor and said that without the work accident the worker would not have had the condition. Dr Coughlan was hopeful the worker would have a good recovery. The recommendation was repeated in the doctor’s reports dated 27 March 2020 and 20 December 2020. The symptoms had not changed, there was ongoing right sided neck pain and some pain in the right arm. The doctor said the surgery was not going to be a panacea for the axial pain but given the refractory nature of the symptoms and the imaging changes, he thought the surgery was reasonable and necessary. Dr Coughlan’s most recent report was dated 27 August 2022, he said he had not seen the worker for a long time and the “proposed surgery may need to include more targets”.[16]
[16] T2 2.34–5.4.
The Member referred to Dr McKechnie’s report dated 15 March 2021. It referred to an MRI scan on 13 July 2017 which showed a small tear at C6–7 and a follow-up CT scan that showed loss of disc height at C6–7. There was potential irritation of the left C7 nerve root. He said the scans confirmed the pathology at C6–7. He said the signs and symptoms were consistent with the work-related injury. The onset of pain related to the injury. It was not unreasonable to offer surgery. The doctor doubted the worker would become pain free.[17]
[17] T2 5.6–6.1.
The Member referred briefly to the four reports of Dr Guirgis.[18]
[18] T2 6.3–12.
The Member referred to Dr Fearnside’s report dated 17 August 2020, in the employer’s case. The doctor referred to “various medical material, including clinical notes”. He said one would have expected the worker to have “improved or even resolved by now”, yet there were continued neck and right shoulder complaints. The doctor thought it probable “the light duties tended to continually aggravate the symptoms”. Dr Fearnside thought it improbable the proposed surgery had “a reasonable prospect of improvement”. There was multilevel spondylosis with foraminal stenosis at several levels, there were “pain generators at multiple levels”. Determination of the “significant pain generating level is not possible”. Dr Fearnside suggested a “comprehensive pain management clinic”.[19]
[19] T2 6.14–7.14.
The Member referred to Dr Baines. In 2009, reporting to the employer, the doctor said a CT scan in October 2006 showed “no cervicogenic cause of arm pain”. Dr Barrett, an orthopaedic surgeon, diagnosed a mild soft tissue injury to the cervical spine. The Member briefly summarised the MAC report of Dr Burns dated 21 July 2014. The Member referred to a report from Dr Harrington in June 2017. Dr Harrington found no neurological impairment of the cervical spine. The Member referred to reports in the employer’s case from Dr Carney, a neurosurgeon. He thought there were psychiatric factors complicating the pain syndrome. He disagreed with the recommendation for surgery. Dr Carney said the pathology at C6–7 was unrelated to the work injury. He said the surgery was unlikely to be effective and carried a risk of worsening the worker’s state.[20]
[20] T2 7.16–9.4.
The Member briefly summarised the primary submissions of the parties. Ms Grotte submitted Dr Coughlan had the benefit of being the treating specialist over a number of years. He conceded the surgery was not a panacea, he decided it was appropriate after a range of conservative treatment had been pursued.[21]
[21] T2 9.11–24.
Mr Grimes submitted “minor pathology” was found since the injury in 2006, and then a significant collapse was identified by Dr Coughlan in October 2018. This dramatic change was only identified by Dr Coughlan without explanation of its cause. Mr Grimes submitted Dr Coughlan appeared to have based his findings on a CT scan that was not identified and was not in the material before the Commission. It was submitted in the absence of that CT scan, Dr Coughlan was misrepresenting the worker’s situation, particularly when no other doctor confirmed any significant pathology at C6–7.[22]
[22] T2 10.1–8.
The Member noted the employer’s submission that there were no clinical notes in evidence from general practitioners in the first few years after the injury. The Member said Dr Fearnside referred to reviewing the clinical notes from general practitioners over the period from May 2009 to November 2017. These recorded a history of consistent attendances for the neck and right shoulder. While Dr Fearnside said he would have expected improvement or even resolution, he accepted there were continuing neck symptoms. Dr Coughlan first saw the worker in November 2017. He accepted the worker continued to suffer significant neck pain constantly since the work injury. The Member said the limited medical records in the years after the injury were consistent with this. Dr Baines wrote a referral in September 2006, three months post-accident, that referred to the management of right sided neck pain. Dr Baines’ medical certificates in 2008 and 2009 included a diagnosis of cervical pain and tenderness on the right side. Dr Burns’ MAC included permanent impairment of the cervical spine as a result of the work injury and made no deduction on account of any pre-existing condition or abnormality. The Member accepted the worker continued to suffer the effects of the 2006 injury to her cervical spine.[23]
[23] T2 10.13–11.12.
The Member dealt with the causation issue, referring to Kooragang Cement Pty Ltd v Bates[24] and Murphy v Allity Management Services Pty Ltd.[25] He said “a condition can have multiple causes”; to succeed on the causation issue the worker needed to establish that the work “injury materially contributed to the need for the surgery”. The Member said the recommendation for surgery appeared to come from Dr Coughlan, who in 2018 said that, on the imaging, there was “a significant collapse at C6–7 … most evident on the CT scan”. The Member said that Dr Coughlan’s prior “focus was on conservative treatment”. The Member referred to Dr McKechnie’s report, which summarised the scans in 2017 and said a “follow-up CT scan” demonstrated a loss of disc height at C6–7. The Member said it could be reasonably inferred Dr McKechnie did not see the “follow-up scan” as it was not listed with the others. The Member said Dr McKechnie appeared to depend on what he was told, or on what he assumed, from Dr Coughlan’s reports. The Member said Dr Guirgis did not refer to any scans after November 2017.[26]
[24] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[25] [2015] NSWWCCPD 49 (Murphy).
[26] T2 11.13–12.26.
The Member said the employer put too much emphasis on the terminology used by experts. The Member referred to Dr Coughlan’s use of the term “mild” to describe the disc lesion in November 2017 and to the doctor’s reference to a “significant collapse … almost 12 months later”. The Member said Mr Grimes referred to “somewhat benign descriptions” in scans from soon after the work injury and also in 2017. The Member said “what is important is the clinical judgment of the treating specialist[,] Dr Coughlan”. He said Dr Coughlan consistently accepted the presence of neck pain, mostly on the right. The background to this was consistent complaints of right sided neck pain “over the years following the work injury”. The Member said Dr Coughlan retained this view when he saw the worker again in March and December 2020.[27]
[27] T2 12.28–13.19.
The Member described Dr Coughlan as best placed “as a treating specialist to provide an opinion on both the cause of the [worker’s] problems and what is the necessary treatment”. The Member referred to Dr McKechnie’s acceptance of “disc pathology, mainly at the C6-7 level” even though there was “some mystery as to the ‘follow-up CT scan’”. Dr McKechnie accepted the proposed surgery was “a reasonable treatment option”.[28]
[28] T2 13.2–14.1.
The Member referred to Dr Fearnside’s view that it was not possible to determine the pain generating level. The Member preferred the opinion of Dr Coughlan, as the treating specialist, on this point. The Member preferred the opinion of Dr Coughlan to that of Dr Carney. The Member said that Dr Coughlan identified the cause of the symptoms after several consultations, and his opinion was supported by Dr McKechnie. The Member found the work injury materially contributed to the need for surgery. There had been consistent complaints around the site of the proposed surgery and Dr Coughlan’s clinical judgment supported the causal relationship.[29]
[29] T2 14.3–29.
The Member referred to the decision of Rose v Health Commission (NSW),[30] where it was said by Burke CCJ that “[a]ny necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.” The Member said the worker had suffered from neck pain for many years, she had been taking strong medication. He said that Dr Coughlan and Dr McKechnie had realistically assessed that the surgery was unlikely to rid the worker of her neck pain entirely. The surgery did aim to alleviate, ease or reduce the consequences of the injury. Dr Fearnside was not fiercely opposed to the surgery, he took the view it was less effective for axial pain and also considered he could not identify the level of pain generation. The Member said Dr Carney did not explain his views on whether the surgery would improve the worker’s pain. The Member considered Dr Coughlan was in the best position to consider the potential benefit of the surgery. The Member concluded the proposed surgery was reasonably necessary and the cost should be met by the employer.[31]
[30] [1986] 2 NSWCCR 32.
[31] T2 14.31–16.7.
The Member referred to observations by Dr Harrington regarding the worker’s psychological condition. Mr Grimes submitted this was relevant to the prospects of success of surgery. The Member said Dr Coughlan had seen the worker on many occasions and had the opportunity to consider any medical conditions that should be considered in assessing the likely success of surgery.[32]
[32] T2 16.9–24.
The Member made the determination and orders set out at [8] above.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (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.”
It is noted that transcript of the hearing at first instance became available after the respondent had filed its Notice of Opposition. The Commission issued a revised timetable in a Direction dated 25 January 2023. Neither party sought to make any further submissions pursuant to the revised timetable. Having 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

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.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[33] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[34](cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[35]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(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’.”[36]
[33] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[34] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[35] [1996] HCA 140; 140 ALR 227.
[36] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[37]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[38]
[37] [2020] NSWCA 54 (Hill).
[38] Hill, [20].
In Northern NSW Local Health Network v Heggie[39] Sackville AJA said:
“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: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[39] [2013] NSWCA 255; 12 DDCR 95, [72].

GROUNDS OF APPEAL

The employer raises the following grounds of appeal:
(a) The Member committed an error of law in failing to provide adequate reasons for his findings. (Ground No. 1)
(b) The Member committed an error of law by failing to provide the [employer] with procedural fairness by not dealing with the submissions made on its behalf. (Ground No. 2)

GROUND NO. 1

The Member committed an error of law in failing to provide adequate reasons for his findings.

Employer’s submissions

The employer says it submitted at first instance that the injury in 2006 was minor. It submits in this regard that it relied on pathology notes (sic) in Dr Burns’ MAC as follows:
(a)    Plain x-rays dated 14 June 2006 showed a congenital fusion of the bodies of C2 and C3. There was “very mild scoliosis convex to the right but no evidence of significant change”.
(b)    A CT scan dated 3 October 2006 revealed “no significant degenerative change and no evidence of disc osteophyte complex”.
(c)    An MRI scan of the cervical spine dated 17 June 2013 “revealed early degenerative change in the cervical spine but no evidence of disc protrusions, canal or foraminal stenosis”.
The employer says it submitted at first instance that “pathology resulting from the 2016 pathology [sic] was minor and not related to the C6/7 level”, on the basis of the following medical opinions:
(a) Dr Barrett’s report dated 17 July 2009 diagnosed mild soft tissue injury to the cervical spine.
(b) Dr Burns’ MAC dated 21 July 2014 diagnosed soft tissue injury to the cervical spine.
The employer submitted on Dr Carney’s report dated 13 December 2018, which referred to a CT scan showing “degenerative changes throughout the spine in keeping with [the worker’s] age but no evidence of any lesion likely to cause radiculopathy nor any specific degenerative change at C6/7”. It referred to Dr Carney’s report dated 25 August 2021. The doctor said the pathology at C6/7 was unrelated to the work injury.[40]
[40] Employer’s submissions, [12]–[14].
The submissions refer to two aspects of the employer’s submissions at first instance, to which the Member made reference. The first was that there was a “significant difference” between the “minor pathology found by various doctors over the years”, and the “significant collapse” referred to by Dr Coughlan in October 2018. The second was to the “somewhat benign” descriptions of the cervical spine in reports of scans from soon after the work injury, and in 2017.[41]
[41] Employer’s submissions, [15].
The employer then refers to a series of questions, submitting the Member failed to give reasons as to:
(a)    How the tissue injury from 2006 has developed in the significant collapse at C6/7 (which is disputed) as diagnosed by Dr Coughlan.
(b)    Why he accepted the current pathology was caused by the alleged injury when there is no medical evidence to explain the evolution of the pathology since 2006.
(c)    Why he considered the minor pathology in the pre-2014 investigations to be largely irrelevant to the issue of whether the injury had materially contributed to the need for the claimed surgery.

Worker’s submissions

The worker refers to s 352 of the 1998 Act and to the principles set out in Raulston. The worker submits the employer’s complaint is simply with the outcome, she submits the employer has failed to establish the decision was ‘wrong’ in the sense described in Raulston. The worker submits it is clear the Member preferred one view of the facts over the other and explained why in clear detail. The worker submits the Member set out the worker’s evidence together with that of Drs Baines, Barrett and Burns who, in 2009, 2009 and 2014 respectively, had diagnosed a soft tissue injury to the cervical spine. The worker submits the diagnosis at these earlier points in time was “not to the point”. The issue was whether the need for surgery resulted from the accepted injury to the neck and right shoulder in 2006. It was necessary that the Member evaluate the worker’s evidence regarding the injurious event, her continuing symptoms, and the opinions of the treating specialist Dr Coughlan together with Dr McKechnie.[42]
[42] Worker’s submissions, [14]–[19].
The worker’s submissions refer to a passage of the reasons where the Member summarised submissions by the employer at first instance, which went to matters similar to those raised in Ground No. 1:
“Mr Grimes, for the [appellant], submits that there is a significant difference between the minor pathology found by various doctors over the years since the [worker’s] injury in 2006, and the ‘significant collapse’ at C6-7, as identified by Dr Coughlan in October 2018. This dramatic change in pathology is only identified by Dr Coughlan and there is no explanation from Dr Coughlan as to what might be the cause of this.
Mr Grimes also points out that Dr Coughlan appears to have based his findings of significant pathology at C6-7 on a CT scan which was not identified by Dr Coughlan and has not been included in the material before the Commission. He submits that in the absence of that CT scan, Dr Coughlan is misrepresenting the [worker’s] situation, particularly when no other doctor confirms any significant pathology at the C6-7 level.”[43]
[43] Worker’s submissions, [20].
The worker submits the Member then engaged in an “evaluative exercise of all the evidence”. The Member referred to a referral from Dr Baines (in September 2006 for right neck pain), Dr Baines’ certificates in 2008 and 2009 (which included cervical pain and right sided tenderness) and the MAC of Dr Burns in 2014 (which included 7 per cent whole person permanent impairment resulting from the 2006 injury). The worker submits the Member’s conclusion, that the worker continued to suffer the effects of the 2006 injury, was open on the evidence. The Member, dealing with causation, referred to Murphy; it was necessary for the worker “to establish the injury materially contributed to the need for the surgery”.[44]
[44] Worker’s submissions, [21]–[27].
The worker submits the Member acknowledged the employer’s position regarding the uncertainty surrounding the imaging. The worker refers to that part of the reasons summarised at [19] to [20] above. The worker refers to Dr Coughlan’s opinion, which it submits the Member clearly found “very persuasive”. The worker notes the Member referred to the importance of the “clinical judgment of the treating specialist”. The Member considered Dr Coughlan was in the best position to provide an opinion on both causation and treatment. Dr Coughlan considered “the chain of causation went back to the 2006 injury”. In the Member’s opinion, Dr Coughlan also identified the pain generators. The Member also referred to the supportive opinion of Dr McKechnie, neurosurgeon. He was not persuaded as to the alternative hypothesis of Dr Carney.[45] The worker summarised the Member’s position:
“The Member has provided a comprehensive analysis of all of the evidence, exposed his process of reasoning, engaged intellectually with the [employer’s] evidence and provided extensive and rational reasons explaining why he preferred one view of the evidence over another.
The Member was not required to give reasons as to why the 2006 injury developed into the significant collapse at C6/7. This is a matter for medical expert opinion and Dr Coughlan was satisfied that the current presentation was causally related to the 2006 injury.”
And:
“The Member’s task is to weigh up the evidence and make a decision about which evidence is accepted and preferred and then give reasons for that decision. The Member carried out this task comprehensively, weighed up all of the evidence, did not consider any evidence was ‘irrelevant’ but determined that some evidence had [considerably] more weight than other evidence. The Member did not ignore any evidence.”[46]
[45] Worker’s submissions, [28]–[32].
[46] Worker’s submissions, [34]–[35], [39].

Consideration

Section 294 of the 1998 Act provides: “A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78(2) of the Personal Injury Commission Rules 2020 (the Rules) relevantly provides:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In Pollard v RRR Corporation Pty Ltd McColl JA, in the course of summarising a number of the authorities dealing with the duty to give reasons, said:
“The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another …”.[47]
[47] [2009] NSWCA 110, [59].
In Mifsud v Campbell Samuels JA said:
“… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”[48]
[48] (1991) 21 NSWLR 725, 728.
In Beale v Government Insurance Office of NSW Meagher JA said that “reasons need not necessarily be lengthy or elaborate”.[49] His Honour also said:
“Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.”[50] (excluding references)
[49] (1997) 48 NSWLR 430 (Beale), 443.
[50] Beale, 443.
It is not unusual for apparently minor injuries to develop into more serious conditions. In the frequently cited decision of Kooragang, Kirby P observed that “causation is not always direct and immediate”.[51] His Honour said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease) is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped.”[52]
[51] Kooragang, 461G.
[52] Kooragang, 463G–464B.
The employer’s challenge to the adequacy of the reasons is put on the basis that the Member did not specifically answer its arguments against acceptance of the worker’s case on causation. The employer’s submissions proceed on the basis that explanation, consistent with those questions, was a necessary part of the Member’s reasoning if the causal question were to be answered in the worker’s favour. This was against a background, in the employer’s submissions at first instance, that there were various underlying difficulties in the worker’s case on causation. The employer elsewhere submitted:
(a)    the initial pathology following the 2006 injury was “very minor”;[53]
[53] T1 24.29–31.
(b)    because the worker’s statements were both dated in 2021, 15 years after the accident, symptomatology should only be accepted if “supported by treating medical evidence, given the extreme delay”;[54]
[54] T1 24.33–25.7.
(c)    there were psychological problems associated with “a fair amount of overlay” according to Dr Harrington’s report;[55]
(d)    the worker is 61 years of age, “you would think over 15 years, there would be a progression in pathology due to her age”;[56]
(e)    there was “an absence of supporting evidence … in terms of clinical notes”;[57]
(f)    the injury in 2006 was minor, at that time investigations did “not show any significant pathology”, and there was “almost a complete absence of reference to the C6/7”;[58]
(g)    a CT scan dated 3 October 2006 showed that “vertebral body heights appeared normal and there was no decrease in the intervertebral space height” (this is contrasted with Dr Coughlan’s later reference to “a collapse at the disc”);[59]
(h)    based on the radiological appearances on 3 October 2006, the employer submitted “the injury in 2006 was minor, and at that time, has caused little or no pathology”;[60]
(i)    Dr Barrett’s report dated 17 July 2009, in the employer’s case, supported a diagnosis of a “mild soft tissue-injury to the cervical spine”;[61]
(j)    Dr Burns’ MAC dated 21 July 2014 showed neurological examination of the upper limbs was normal, except for “some mild tingling in the right median nerve distribution”;[62]
(k) Dr Harrington gave the worker little support and did not accept there was any whole person impairment of the cervical spine,[63] and
(l)    an MRI scan on 13 July 2017 showed “a small left paracentral disc protrusion with associated annular tear” and “[e]xtension of disc material into the left neural exit foraminal [sic] results in mild, moderate narrowing, with contact with the exiting left C7 nerve root without impingement”.[64]
[55] T1 25.9–24.
[56] T1 25.26–30.
[57] T1 25.32–26.6.
[58] T1 26.9–17.
[59] T1 27.7–11.
[60] T1 27.16–17.
[61] T1 27.28–28.5.
[62] T1 28.24–27.
[63] T1 29.14–30.5.
[64] T1 30.10–24.
The employer’s submissions before the Member placed emphasis on radiological appearances from time to time. Against the above background, the employer submitted this was “still very minor pathology that doesn’t justify the claimed surgery”. The employer asked rhetorically:
“… where was this pathology before, and where is the [worker’s] opinion that says that this is a natural progression from the original pathology from 2006, and that the alleged injury has caused this pathology? There’s no opinion that actually suggests that, Member. You are asked to leap to that conclusion without the assistance of a qualified medical opinion. You’re asked to leap to that conclusion when we have a very old statement. You’d have difficulties accepting the [worker] as a historian. You have no reports from Dr Lim, and you have a huge delay from the pleaded injury.”[65]
[65] T1 30.26–31.7.
The employer at first instance submitted:
“You have Dr Coughlan relying on a CT scan that either doesn’t appear to be before you or is a complete misrepresentation of the findings when you compare it to 2017, and you don’t have any doctor from the [worker] saying that this is a natural progression of the previous injury, and the previous injury has materially contributed to the current pathology, whatever that may be. Even if you accept Dr Coughlan’s diagnosis, and you accept the CT scan, no explanation as to how that pathology has eventuated from an injury in 2006, where the X-rays and CT scans afterwards make no reference at all to the C6/7 level.”[66]
[66] T1 37.11–23.

Dr Coughlan’s report dated 8 November 2017 referred to paraesthesia “into the C6 distribution”. The doctor said the worker’s MRI scan showed mild disc protrusion at C6/7 and C7/T1. The doctor recommended “a SPECT bone scan and a fine slice CT scan particularly to assess the C6/7/region”. He said he would then review the worker again.[67] The doctor reported again on 29 November 2017. The SPECT bone scan did not show “any severe pain generators”. The doctor said the immobile C2/3 area put mechanical pressure on the C3/4 facet joints. He suggested injecting these joints under CT guidance. He said there was no “significant myelopathy or neural deficits and conservative treatment is appropriate”.[68] Dr Coughlan reported again on 24 February 2018. The doctor recommended “radiofrequency denervation of the facet joints under fluoroscopy” and looking to a multidisciplinary pain program to control axial neck pain. Most of the worker’s neck pain was right sided. The doctor described surgery as “an option”.[69]
[67] ARD, p 42.
[68] ARD, p 43.
[69] ARD, p 41.
The reference to a CT scan, that became controversial, was in Dr Coughlan’s report dated 4 October 2018:
“On her imaging she has significant collapse at C6/7. This is most evident on the CT scan particularly with regards to the uncovertebral joints bilaterally.
In terms of surgical options I have discussed the option of a C6/7 anterior cervical discectomy and fusion. This would improve her axial neck pain …”.[70]
[70] ARD, p 40.
It should be noted that Dr Coughlan’s reference to a “significant collapse at C6/7” was expressed as being based on “her [the worker’s] imaging” as a whole, it was not restricted to the appearances on a CT scan, although it did state it was “most evident on the CT scan”, particularly with regards to one aspect of the appearances. Dr Coughlan reported to the insurer on 22 October 2018. He described the worker as a “good candidate for surgery”. It was hoped this would improve her axial neck pain.[71]
[71] ARD, pp 38–9.
Dr Coughlan next reported on 27 March 2020. Symptoms had “escalated over the course of the past 12 months”. There was “bilateral arm pain in the C7 distribution and also very severe neck pain”. Imaging confirmed “bilateral foraminal stenosis with compression of the C7 nerve root”. The worker complained of “significant ongoing weakness in both hands and in the triceps and bicep region”. The doctor said he would try to expedite her surgery.[72]
[72] ARD, p 36.
On 20 December 2020, Dr Coughlan reported that the worker’s symptoms “haven’t changed. She has a combination of ongoing right sided neck pain and then some pain into the arm, but the neck pain is much worse”. The doctor continued “[s]he hasn’t made any progress with conservative treatment and subjectively has slowly egressed”. The doctor said, of the proposed surgery:
“This is certainly not going to be a panacea for her axial neck pain but given the refractory nature of her symptoms and persistent pain and the imaging changes I do think the surgery is reasonable and necessary.”[73]
[73] ARD, p 37.
Dr McKechnie, neurosurgeon, saw the worker for medicolegal purposes and reported to her solicitors on 15 March 2021. He referred to an MRI scan dated 13 July 2017. It was said to demonstrate “mild spondylitic changes and small left paracentral disc protrusions at C6/7 and C7/T1. There was a small annular tear associated with the C6/7 disc protrusion and extension of the disc material into the left exit foramen potentially irritating the left C7 nerve root.” Dr McKechnie’s report referred to a CT scan dated 20 November 2017 which demonstrated “congenital fusion at C2/3 with mild multilevel spondylitic changes”.[74]
[74] ARD, p 45.
I note a referral by the general practitioner Dr Baines, dated 12 September 2006, to the orthopaedic surgeon Dr Burneikis, referred to “opinion and management of [the worker’s] Rt neck pain”. It referred to shoulder symptoms and said the “cervical pain was consequently somewhat overlooked”.[75] An MRI scan report dated 17 June 2013, addressed to the general practitioner, included reference to “disc desiccation … at all cervical levels with some loss of disc height”. Degenerative change was noted bilaterally at C6-C7 with “mild diffuse posterior disc bulge and minimal partial effacement of the anterior thecal sac”. The radiologist commented “[e]arly spondylotic changes in the cervical spine but no focal disc protrusion, spinal canal stenosis or neural exit foraminal narrowing is seen”.[76] Dr Fearnside, neurologist, examined the worker at the request of the employer and reported on 17 August 2020.[77] He recorded the only brachial radicular pain had been in the fingers of the right hand, which resolved following a C5/6 facet joint block, together with a radiofrequency lesion to the occipital nerves, performed by Dr Coughlan in 2018. Dr Fearnside recorded a history that the worker’s neck pain had slowly deteriorated between April 2014 and August 2020. He recorded there was constant neck pain at the base of the neck on the right side.
[75] ARD, p 75.
[76] Reply, pp 9–10.
[77] Application to Admit Late Documents, 26/7/22, pp 1–8.
Dr Fearnside referred to a number of radiological investigations. An MRI scan of the cervical spine on 13 July 2017 showed mild spondylitic changes through the cervical spine with a small left paracentral disc protrusion at C6/7 and C7/T1 not causing canal stenosis. There was a small annular fissure at C6/7 and some disc material in the left intervertebral foramen at C6/7. A CT scan on 20 November 2017 showed congenital fusion at C2/3 and mild spondylitic changes throughout the cervical spine. At C6/7 there was a loss of disc height with bilateral foraminal stenosis but no disc protrusion. At C5/6 there was a minimal disc bulge slightly more to the left and mild foraminal stenosis. (emphasis added)
Various of the terms used by the employer to describe its argument were (I mean no criticism) of their nature relatively vague. Initial pathology was “very minor”, there was a “fair amount” of overlay, the 2006 injury was “minor” causing “little or no pathology”, a diagnosed soft tissue injury was “mild”. The employer’s attack on the worker’s case on causation turned, to a significant extent, on the contrasting of such terms with Dr Coughlan’s reference to a CT scan, which in the doctor’s view demonstrated “significant collapse at C6/7”. This was associated with a submission that this description of the pathology at C6/7 involved a scan that was not in evidence, or alternatively potentially constituted, in the employer’s submission, “a complete misrepresentation of the findings when you compare it to 2017”.[78]
[78] T1, 37.13–15.
There was a lack of specificity surrounding the reference to a CT scan in Dr Coughlan’s report dated 4 October 2018. The doctor wrote that “[o]n her imaging” the worker had “significant collapse at C6/7”. This was described as “most evident on the CT scan particularly with regards to the uncovertebral joints bilaterally”. Dr Coughlan’s report did not specifically identify the scan that showed this. There was no CT scan report in evidence that used the phrase “significant collapse”. It was, of course, within Dr Coughlan’s expertise as a neurosurgeon to interpret the radiological scans and reports. Whether Dr Coughlan’s reference to a CT scan, in his report dated 4 October 2018, was to the doctor’s interpretation of an existing scan, or whether it was a reference to an additional scan not in evidence, was unclear. Dr McKechnie referred to a “follow-up CT scan”.[79] Dr McKechnie referred to the “follow-up CT scan” as demonstrating “loss of disc height at C6/7”. This may simply be a less dramatic description of the “significant collapse” at C6/7 described by Dr Coughlan in the report dated 4 October 2018. This is conjecture. The Member said it could be reasonably inferred that Dr McKechnie did not see any such scan, but depended on what he was told or assumed from Dr Coughlan’s reports (see [19] above). The Member adopted the phrase “the follow-up CT scan”, the term previously used by Dr McKechnie.
[79] ARD, p 45.
The employer’s submissions were that, if this CT scan was not an investigation additional to those in evidence, then Dr Coughlan’s reference to what it showed represented a “complete misrepresentation of the findings when you compare it to 2017” (emphasis added) (see [17], [51] and [60] above). I note the reasons of Beazley JA (as her Excellency then was) in Hancock v East Coast Timber Products Pty Ltd at [105] to [108].[80] Care needed to be taken not to make an allegation of impropriety against a doctor in the absence of an oral hearing being sought before the Member, so that any such allegation could be put explicitly to the doctor.
[80] [2011] NSWCA 11; 80 NSWLR 43, 8 DDCR 399 (Hancock), [105]–[108].
The Member’s reasons (see [20] above) did not ultimately turn on this question. The Member referred to the employer placing “too much emphasis” on the terminology used by experts. The Member specifically relied on the “clinical judgment of the treating specialist[,] Dr Coughlan”. He said Dr Coughlan consistently accepted the presence of neck pain, mostly on the right. The Member described the background to this as consistent complaints of right sided neck pain “over the years following the work injury” (see the reasons above, at [18] to [22]).
The Member referred to a number of matters, summarised at [18] above, which responded to criticisms made by the employer of the worker’s case on causation. Dr Baines, in September 2006, wrote a referral that referred to right sided neck pain. Dr Baines’ certificates in 2008 and 2009 included cervical pain and right-sided tenderness. Dr Burns’ MAC dated 21 July 2014 found permanent impairment of the cervical spine resulting from the work injury, without deduction for any pre-existing condition or abnormality. Although there were no clinical notes in evidence from “the first few years after the injury”, Dr Fearnside referred to reviewing clinical notes from general practitioners over a period from May 2009 to November 2017. These showed consistent attendances for complaints involving the neck and right shoulder. The Member noted that Dr Fearnside accepted there were continuing neck symptoms. Dr Coughlan accepted that the worker suffered constant significant neck pain after the work injury. The Member said that there were consistent complaints around the site of the proposed surgery and Dr Coughlan’s clinical judgment supported the causal relationship (see [22] above). The Member accepted Dr Coughlan’s opinion, supported by Dr McKechnie. I note the description, in Dr McKechnie’s report dated 15 March 2021, of the MRI scan dated 13 July 2017:
“A MRI of the cervical spine on the 13 July 2017 which demonstrated mild spondylitic changes and small left paracentral disc protrusions at C6/7 and C7/T1. There was a small annular tear associated with the C6/7 disc protrusion and extension of the disc material into the left exit foramen potentially irritating the left C7 nerve root.”[81]
[81] ARD, p 45.
The employer’s submissions at first instance, after referring to this MRI scan report, asked “where is the [worker’s] opinion that says that this is a natural progression from the original pathology from 2006, and that the alleged injury has caused this pathology?” The worker was not required to prove that the pathology demonstrated in the MRI scan was “a natural progression from the original pathology”. Consistent with Kooragang and Murphy the worker needed to prove, on the evidence overall, that the “injury materially contributed to the need for the surgery” (see [19] above). Drs Coughlan and McKechnie, both neurosurgeons, supported the causal connection between the injury, the pathology and the associated requirement for surgery.
The Member, after referring to the appropriate test on causation, accepted that the effects of the 2006 injury to the worker’s cervical spine continued (see [20] to [22] above). The Member explained the medical evidence that he accepted. He referred to his preference for the opinion of Dr Coughlan, the treating neurosurgeon over a number of years, which was also supported by Dr McKechnie. He said that those clinical notes available, from May 2009 to November 2017, were consistent with continuing, significant neck pain since the work injury. The Member made a factual finding that the worker had “continued to suffer significant neck pain constantly since the work injury” (see [18] above). On the evidence overall I accept that this factual finding was open. There was not, in my view, factual error within the meaning of s 352(5) of the 1998 Act. The Member’s reasons were adequate having regard to s 294 of the 1998 Act, the Rules and the relevant authorities.
Ground No. 1 fails.

GROUND NO. 2

The Member committed an error of law by failing to provide the [employer] with procedural fairness by not dealing with the submissions made on its behalf.

Employer’s submissions

The employer quotes passages from DNA17 v Minister for Immigration and Border Protection[82] and CPE15 v Minister for Immigration and Border Protection.[83] The employer refers to a decision of the President, Phillips J, in Sarheed v C1 Formwork Group Pty Ltd.[84] The employer quotes the following, which is taken from DNA 17 and quoted in Sarheed:[85]
“As the above passage makes clear, the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome. As the Full Federal Court recently observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [35]–[37], the ultimate concern is with the identification of jurisdictional error: the review body not performing the function entrusted to it or not performing it in an authorised way. The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.” (emphasis by Phillips P in Sarheed)
[82] [2019] FCAFC 146 (DNA 17).
[83] [2017] FCA 591.
[84] [2021] NSWPICPD 7 (Sarheed).
[85] Employer’s submissions, [20].
The employer refers to r 15.2(3) of the Workers Compensation Commission Rules 2011 (the former rules) in support of the principle that “evidence based on speculation or unsubstantiated assumptions is unacceptable”. I note the former rules ceased to have application when they were replaced by the Personal Injury Commission Rules 2021 (the Rules) which commenced from 1 March 2021. The equivalent provision is now found in r 73 of the Rules. The employer refers to Paric v John Holland Constructions Pty Ltd,[86] in respect of which it refers to the citations of Paric in both the Court of Appeal and the High Court. It is cited for the proposition that there must be a ‘fair climate’ on which a doctor’s opinion is based. It also submits that whilst a doctor “does not need to provide elaborate or detailed explanations for his conclusion, more than a mere ‘ipse dixit’ (an assertion without proof) is required”.[87]
[86] [1984] 2 NSWLR 505, 509–510, [1985] HCA 58.
[87] Employer’s submissions, [21].
The employer submits there was not a fair climate for the acceptance of Dr Coughlan’s opinion on causation, based on the following:
(a)    “Dr Coughlan provided no comment on the lack of pathology at C6/7 in investigations prior to 2014”;
(b)    “Dr Coughlan has provided [sic, not provided] explanation for the change in the pathology from pre 2014 to when he commenced treating the [worker] in 2017”, and
(c)    “Dr Coughlan has provided not [sic] explanation as to how the original soft tissue injury has caused or evolved into the current pathology at C6/7 (which is disputed by the appellant)”.
The employer submits the Member “did not respond or engage with these submissions”, which were “relevant and material” and “formed part of the appellant’s substantive argument”. It submits this involved a failure to engage and respond to “a substantial, clearly articulated argument that was material to the central issue in these proceedings”. It states that it repeats its previous submissions at [12] to [14] (these are summarised at [34] to [36] above). It repeats its submission that the Member failed to engage with “a substantial, clearly articulated argument that was material to the central issue in these proceedings”.[88]
[88] Employer’s submissions, [22]–[29].

Worker’s submissions

The worker describes the employer’s “complaint” in this ground as a failure to engage with the submissions set out at [70] above. The worker submits this ground is misconceived. The worker submits that, to establish a denial of procedural fairness on the basis that “a ‘substantial clearly articulated argument’ was not dealt with or considered, the Appellant Employer must show that the Member failed to understand the Appellant Employer’s case and failed to understand the critical elements of the claim”.[89]
[89] Worker’s submissions, [42]–[44].
The worker’s submissions quote from the reasons of Meagher JA in Day v SAS Trustee Corporation.[90] The passage quoted includes reference to Dranichnikov v Minister for Immigration and Multicultural Affairs.[91] It includes the following passage from Day:
“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation.”[92] (respondent’s emphasis)
[90] [2021] NSWCA 71 (Day).
[91] [2003] HCA 26; 197 ALR 389; 77 ALJR 1088 (Dranichnikov).
[92] Day, [37].
The worker submits it is “patently clear”, on a fair reading of the transcript, that the Member was “fully aware of the submissions” of the employer, he was “just not persuaded by them”. The worker submits the Member referred to “those very submissions” at T2 9.26 to 34 and T2 10.1 to 8. He then dealt with them in the context of the evidence overall, which he “painstakingly reviewed”. He determined the critical elements including the critical question of “whether the proposed surgery is reasonably necessary as a result of the injury”. The Member analysed Dr Coughlan’s opinion, giving “considerable weight” to the clinical judgment of the treating specialist. The worker submits Dr Coughlan accepted the presence of significant neck pain, mostly on the right, constant since the injury, which was supported by a plethora of evidence. The Member “made that finding”. The worker quotes at some length from the Member’s reasons dealing with his preference to the opinion of Dr Coughlan over that of Dr Carney.[93]
[93] Worker’s submissions, [46]–[50].
The worker’s submissions refer to the employer’s claim that Dr Coughlan’s opinion was not given in ‘a fair climate’. The worker’s submissions quote at length from a decision of Gonzalves v Wideline Pty Ltd[94] in which I summarised some of the authorities relevant to the requirements of expert evidence. The worker submits:
“53. Dr Coughlan’s opinion had an intellectual and medical basis for it. It was based on the original mechanism of injury, the worker’s history of persistent pain, the unchanging location of the pain on the right side of the neck at the level where the treatment is required, the investigation which determined the pain generator, and the conclusion regarding causation. It was also supported by the opinion of another specialist neurosurgeon.
54. The opinion complied with the requirements of expert opinion and therefore, it was open to the Member to accept it.”
[94] [2022] NSWPICPD 33.

The worker submits the appeal should be dismissed.

Consideration

The argument based on Dranichnikov

In Dranichnikov the appellant’s application for a protection visa was based on a claim that he was “a businessman who could not accept the increasing levels of corruption and violence in Russia, denounced the suggested complicity of the authorities in it and took a public stance against such developments”. The delegate dealt with his claim on the basis that his fear was “that he will face differential harm as a businessman”. The delegate concluded there was no evidence “to suggest that there is general persecution of businessmen in Russia.”[95] (emphasis in original)
[95] Dranichnikov, [43]–[46].
Justices Gummow and Callinan said that the Refugee Review Tribunal, in determining the social group to which Mr Dranichnikov belonged, “misstated and failed to deal with the case presented to it”. Their Honours said “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice”.[96] In the same case, Kirby J said:
“Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
The applicant has established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate.”[97]
[96] Dranichnikov, [24].
[97] Dranichnikov, [88]–[89].
In Wang v State of New South Wales[98] McCallum JA (as her Honour then was) (Macfarlan and Meagher JJA agreeing) said the decision in Dranichnikov was “not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings”.
[98] [2019] NSWCA 263 (Wang), [63].
I note the worker’s submission based on Day, where it was said: “The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim.” In Flanagan v Allianz Australia Insurance Ltd Chen J, citing and applying Day, said “a constructive failure to exercise jurisdiction is not, relevantly here, ‘a mere failure to consider evidence’, but ‘a failure to understand or determine a case or claim’.” [99] (emphasis in original)
[99] [2022] NSWSC 1374, [31].
The employer disputed that the relevant surgery was reasonably necessary and that it resulted from the pleaded work injury. The causation argument was the one that dominated the running of the case and the appeal. On a fair reading of the transcript of the Member’s reasons, he was clearly aware of the employer’s case. The Member’s reasons summarised the employer’s submissions based on its medical case, including from doctors who did not support the worker’s position. He summarised the employer’s submissions regarding the allegedly “minor pathology” in and following 2006 and the reference in 2018 to significant collapse at C6/7. There is no basis for concluding that the Member misunderstood the employer’s case on the issue (see the summary of the reasons at [14] to [19] above). There were competing medical views. The way in which the Member dealt with his preference for the opinion of Dr Coughlan and Dr McKechnie, in his oral reasons, is summarised at [63] to [66] above. It cannot be validly argued that the Member failed to address the central or critical elements of the dispute. The employer’s argument based on Dranichnikov fails.

The argument based on Paric

The High Court in Paric said:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”[100]
[100] [1985] HCA 58; 59 ALJR 844 (Paric), [9].
The employer’s submissions refer to the need for a ‘fair climate’ for the expression of an expert opinion. This is taken from the decision of the Court of Appeal in Paric where Samuels JA said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[101]
[101] [1984] 2 NSWLR 505 (per Samuels JA, Hutley and Priestley JJA agreeing), 509G–510B.
The rules of evidence do not apply in the Commission: s 43(2) of the 2020 Act. The ‘Guiding principles for applicable proceedings’ in r 73 of the Rules (in an earlier and substantially identical form) were described by McColl JA in South Western Sydney Area Health Service v Edmonds as “broadly reflect[ing] fundamental principles of the common law concerning the admissibility of evidence”.[102] In Hancock v East Coast Timber Products Pty Ltd Beazley JA said “an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence”.[103] In the context of the former Workers Compensation Commission, her Honour said that “[i]n the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight”.[104]
[102] [2007] NSWCA 16; 4 DDCR 421 (Edmonds), [128].
[103] [2011] NSWCA 11; 80 NSWLR 43 (Hancock), [82].
[104] Hancock, [83].
I do not accept that this argument falls within Ground No. 2. In the event that I am in error in this view, I will deal with the argument. I can see nowhere, in the transcript of proceedings before the Member, where the employer challenged the weight to be given to the medical evidence in the worker’s case, on the basis of a lack of correlation between the facts assumed by the doctors and the facts as established. This was the subject matter of the decisions in Paric to which the employer refers. I cannot see, in the employer’s submissions on this appeal, where it specifically makes such a point. In its submissions at [22], the employer submits there was not a ‘fair climate’ for the acceptance of Dr Coughlan’s opinion, and then makes the comments set out at [70] above. I cannot see that these comments raise the principles in Paric. The Member could not have erred in not dealing with a matter that was not raised.[105] It follows that this argument does not assist the employer.
[105] Brambles Industries Limited v Bell [2010] NSWCA 162 (per McColl JA), [30].
The appellant’s submissions, after referring to the need for a ‘fair climate’, continue saying “[w]hilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere ‘ipse dixit’ (an assertion without proof) is required.” This submission is consistent with the reasons of McColl JA in Edmonds where her Honour said:
“In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”[106]
[106] Edmonds, [132].
Again, I cannot see that this argument falls within Ground No. 2. In the event that I am in error in this view, I will deal with the argument. The medical witness whose evidence appears to be challenged in this argument is Dr Coughlan.
In ASIC v Rich Spigelman CJ, dealing with the requirements of expert evidence, said:
“The focus of attention - the ‘prime duty’ - is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.”[107]
And:
“An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”[108]
[107] [2005] NSWCA 152; 218 ALR 764 (Rich), [105].
[108] Rich, [170].
In Hancock Beazley JA referred to the analysis in Rich at [105] and said she accepted it and considered it to be “clearly correct”.[109] In HammondCare v Calka[110] Roche AP referred to the passage from Rich at [170] and said “[i]n other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.” In Hancock Beazley JA, discussing whether the requirements of expert evidence were met in that case, said:
“… what was required for satisfactory compliance with the principles governing expert evidence was for [Dr Summersell’s] reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”[111]
[109] Hancock, [77].
[110] [2016] NSWWCCPD 2, [47].
[111] Hancock, [85].
In the current matter, Dr Coughlan’s field of specialised knowledge and status as an expert are not challenged. In considering the other requirements, it is necessary that regard be had to all of the doctor’s reports.[112]
[112] Hancock, [92].
The report dated 8 November 2017 described the history of injury and symptoms (being assumed facts) and the location of symptoms (“She does get some paraesthesias however down into the C6 distribution”), these being facts observed. It described test results from an MRI scan (being information from x-rays and other tests). The report dated 29 November 2017 described ongoing symptoms (“very significant ongoing neck pain”) and test results from both a CT scan and a SPECT bone scan. It recommended conservative treatment. The report dated 24 February 2018 described ongoing symptoms (“very significant ongoing neck pain … Most of her neck pain is right sided”). It described suggested treatment (“radiofrequency denervation of the facet joints under fluoroscopy” and a multidisciplinary pain program). The report dated 4 October 2018 described significant improvement in the worker’s occipital neuralgia. It referred to “significant collapse at C6/7” on imaging. It said the doctor had discussed “the option of a C6/7 anterior cervical discectomy and fusion”.[113]
[113] ARD, pp 40–43.
The doctor reported to the insurer on 22 October 2018. He described the mechanism of injury in 2006 with injury to the right shoulder and neck. He described employment as the main contributing factor, “had she not … had a workplace injury, she would not have the condition she presents with”. He believed this was from “an acute episode”. The doctor was hopeful the worker would have a good recovery and the treatment would improve her axial neck pain. Dr Coughlan reported again on 27 March 2020. He recorded the ongoing history of symptoms, “very significant ongoing symptoms with severe arm pain bilaterally and axial neck pain. Her symptoms have escalated over the course of the past 12 months.” He recorded the findings, bilateral arm pain in the C7 distribution and also very severe neck pain. The doctor referred to the imaging, which showed bilateral foraminal stenosis with compression of the C7 nerve root. He noted the complaints of “significant ongoing weakness in both hands and in the triceps and bicep region”. He referred to the need to expedite the worker’s surgery.
Dr Coughlan reported again on 20 December 2020. He described the symptoms (“haven’t changed … ongoing right sided neck pain and then some pain into the arm, but the neck pain is much worse”) and the radiological appearances (“mostly has changes at C6/7 … autofused C2/3 area. At C6/7 there is some uncovertebral loading on both sides in the margins of the disc space and some early foraminal stenosis particularly on the left”). The doctor referred to the “previously discussed … option of an anterior cervical discectomy and fusion at C6/7”. He referred to the ongoing symptoms (“hasn’t made any progress with conservative treatment and subjectively has slowly egressed … no clinical evidence of myelopathy and no significant motor deficit. On the MRI there is some degree of focal kyphosis at C6/7. … given the refractory nature of her symptoms and persistent pain and the imaging changes I do think the surgery is reasonable and necessary”).
Dr Coughlan’s analysis of causation was relatively brief, but in my view sufficient, when his reports are read together. Dr Coughlan accepted the worker had “significant ongoing neck pain and this is mostly on the right hand side … constant since the workplace injury”[114] (see [20] above). The predominant pathology, and the level at which the surgery is proposed, is at C6/7, where Dr Coughlan considered there was a significant collapse on imaging. This would potentially be consistent with the “loss of disc height” at C6/7 identified in the CT scan of Dr Carter dated 20 November 2017, addressed to Dr Coughlan.[115] There were paraesthesias into the C6 distribution, identified in Dr Coughlan’s initial report dated 8 November 2017. The doctor described employment as the ‘main contributing factor’ (a phrase found in s 4(b) of the 1987 Act). Dr Coughlan said “had she not … had a workplace injury, she would not have the condition she presents with”. Dr Coughlan’s report dated 27 March 2020 described “bilateral arm pain in the C7 distribution and also very severe neck pain”. He said imaging confirms “significant bilateral foraminal stenosis with compression of the C7 nerve root.”
[114] ARD, p 38.
[115] ARD, p 52.
Dr Coughlan initially recommended conservative treatment of the worker’s neck (see his reports dated 8 November 2017, 29 November 2017 and 24 February 2018). The doctor appears to have first discussed surgery with the worker at the consultation the subject of the report dated 4 October 2018. The factors that justified the surgical option were set out in Dr Coughlan’s report dated 20 December 2020:
“She hasn’t made any progress with conservative treatment and subjectively has slowly egressed. Fortunately though there is no clinical evidence of myelopathy and no significant motor deficit. On the MRI there is some degree of focal kyphosis at C6/7. This is certainly not going to be a panacea for her axial neck pain but given the refractory nature of her symptoms and persistent pain and the imaging changes I do think the surgery is reasonable and necessary.”[116]
[116] ARD, p 37. This passage from Dr Coughlan’s opinion misquotes the relevant test in s 60 of the 1987 Act, which is that treatment be ‘reasonably necessary’ (as opposed to ‘reasonable and necessary’). It has been held that a test of ‘reasonable and necessary’ would impose a higher requirement than that found in s 60, see Diab v NRMA Ltd [2014] NSWWCCPD 72; 16 DDCR 54, [70]. Neither party relies on this misstatement of the test by Dr Coughlan.
The matters set out by Dr Coughlan satisfied the requirements discussed by Beazley JA in Hancock in the passage quoted at [89] above.
The Member’s findings on causation and the need for surgery were not, in any event, solely based on the reports of Dr Coughlan. The Member described Dr Coughlan’s views as being “supported by another neurosurgeon, Dr McKechnie”. The Member said Dr McKechnie accepted the disc pathology and that the proposed surgery was a “reasonable treatment option”.[117] Dr McKechnie’s report also satisfied the requirements of expert evidence.
[117] T2 13.29–14.1.
It follows that even if one accepted that this argument fell within Ground No. 2, it would not assist the employer.
Ground No. 2 fails.

CONCLUSION

The appeal fails.

DECISION

The Certificate of Determination dated 21 November 2022 is confirmed.

Michael Snell
DEPUTY PRESIDENT

21 November 2023