Workers Compensation Nominal Insurer (icare) v Kamau
[2024] NSWPICPD 51
•20 August 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Workers Compensation Nominal Insurer (icare) v Kamau [2024] NSWPICPD 51 |
APPELLANT: | Workers Compensation Nominal Insurer (icare) |
FIRST RESPONDENT: | Steven Kamau |
SECOND RESPONDENT: | Chamight Pty Ltd |
FILE NUMBER: | A1-W1105/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 20 August 2024 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 14 July 2023 is revoked. 2. The matter is remitted to a different member for re-determination. |
CATCHWORDS: | WORKERS COMPENSATION – Principles applying to expert evidence; rule 73 of Personal Injury Commission Rules 2021; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms N Compton, counsel | |
| Turks Legal | |
| First respondent: | |
| Mr L Morgan, counsel | |
| Gerard Malouf & Partners | |
| Second respondent: | |
| No appearance | |
DECISION UNDER APPEAL: | Kamau v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 348 |
MEMBER: | Ms K Garner |
DATE OF MEMBER’S DECISION: | 14 July 2023 |
INTRODUCTION AND BACKGROUND
Steven Kamau, the first respondent, was employed by Chamight Pty Ltd, the second respondent, as a labourer. The second respondent was uninsured and played no role in the proceedings below, rather the first respondent’s claim was disputed by the Workers Compensation Nominal Insurer (icare), the appellant.
On 5 September 2019, the first respondent in the course of his employment with the second respondent attended the Rouse Hill Shopping Centre. The work to be undertaken involved the first respondent and his colleagues erecting a model or display of an oversize shopping bag. During the course of erecting this model bag, a board fell striking the first respondent in the head causing him injury. The first respondent ceased work and the next day obtained medical treatment. There is no dispute about the fact that the first respondent was struck by a board and suffered injury on 5 September 2019.
The first respondent subsequently made a claim for permanent impairment compensation in relation to the injuries suffered in the subject accident. This claim was disputed by the appellant in a s 78 notice dated 11 January 2022.[1]
[1] Application to Resolve a Dispute (ARD), p 13.
The matter was listed before Member Garner of the Personal Injury Commission (the Commission), being heard on 5 June 2023, with the parties subsequently filing written submissions.
The Member was called upon to decide the following issues in relation to the dispute. Firstly, the Member had to decide whether the first respondent suffered a traumatic brain injury and/or a high cervical cord lesion in the subject accident. Secondly, depending on the answer to the first question, the extent and quantification of the first respondent’s entitlement to permanent impairment compensation.
At the hearing the Member was also called upon to decide an argument about the admission of two statements into evidence, as objections had been raised by both parties to lay evidence the other had sought to rely upon.
In a written decision dated 14 July 2023, the Member rejected the evidence sought to be relied upon by both parties and found for the first respondent on the question regarding the nature of his injuries. The Member found that the first respondent had suffered a traumatic brain injury and a high cervical cord lesion and referred both injuries, as found, to a medical assessor for a permanent impairment assessment.
The appellant appeals from this decision. As was the case with the first instance proceedings, the second respondent played no role and did not appear in this appeal.
THE EVIDENCE
Lay evidence
Statements of the first respondent
In his statement dated 24 August 2022,[2] the first respondent described the incident, in summary, that a board fell and struck him on the head. There is no description as to the composition of the board or the height that it fell. He stated that immediately following the impact, he saw stars and screamed in pain. He states that he recalls being woken up by his colleague and when he stood up, he felt weakness in his legs. He experienced pain in his head, neck and shoulders. He went home after the incident to rest and recalled being “incredibly unsteady”[3] on his feet having to support himself with the walls around him. He reported his legs were uncontrollably shaking when he got into bed. When he woke the following morning, his pillow was covered in blood. He states that he attended his GP who referred him to the emergency department at Mt Druitt Hospital.
[2] ARD, p 1.
[3] ARD, p 2, [18].
In a supplementary statement dated 24 May 2023[4] the first respondent complained of migraines, headaches, dizziness, vertigo and an unsteady gait.[5] He complained of pain in his eyes when exposed to bright lights, difficulty concentrating, a throbbing sensation in his head, and bouts of fogginess, blurred vision and occasional blackouts.[6]
[4] Also referred to as being dated 5 April 2023.
[5] Application to Admit Late Documents (AALD) dated 29 May 2023, pg 2, [6].
[6] AALD dated 29 May 2023, pp 2–3, [6]–[8].
Statement of Mr Kanyiri
The first respondent’s work colleague, Mr Kanyiri, gave evidence by way of a written statement dated 4 November 2022,[7] that he witnessed another colleague, Justin standing on a ladder screwing in a panel when the panel dropped on the first respondent’s head.[8] He described the panel as “a big board”[9] and noticed a chip on the corner of the board when it was lying on the ground. He witnessed the first respondent bleeding from his head[10] and offered to drive him to the doctor however the first respondent declined as he wanted to go home and rest.[11]
Treating medical evidence
[7] ARD, p 9.
[8] ARD, p 9, [5].
[9] ARD, p 9, [4].
[10] ARD, p 9, [6].
[11] ARD, p 9, [8].
Clinical notes of Kingswood Mediclinic
Clinical records of Kingswood Mediclinic confirm attendances from 6 September 2019, where the first respondent consulted Dr Rabbi. On 6 September 2019 Dr Rabbi recorded the history of the incident:
“A haevy plywood, weighing about 5-10 klos had fallen over top of his head at work yesterday. He had no LOC/vomting, no weakness in any part of the body/no slurring of speech. He c/o headac and neck pain.
He had noticed blood on his pillow this morning. Tetanus status unknown, and was given today. o/e: laceration injury noted on the top of his head with swelling posteriorly.”[12] (quoted as per original)
[12] ARD, p 84.
The first respondent returned on 9 September 2019 where he complained of pain in the back of the neck which radiated to his upper back. On examination Dr Rabbi found no swelling, bruising or deformity. He noted that there was marked tenderness over the C6 and C7 cervical spine and that the neck was mildly restricted due to pain.[13] The doctor ordered a CT scan of the cervical spine and head which revealed no abnormalities in the cervical spine or head apart from swelling on the scalp.[14]
[13] ARD, p 85
[14] ARD, p 108.
The first mention of any form of loss of consciousness was recorded on 3 October 2019 when the first respondent complained of dizziness 2–3 times per day and that he had “blacked out on Friday”.[15] The doctor also recorded complaints of a severe constant headache every day and insomnia since the incident. The doctor ordered an MRI scan of the brain and cervical spine[16] which revealed a subtle reversal of cervical lordosis between C2 and C7 which the doctor noted may indicate an element of muscle spasm.[17]
[15] ARD, p 86.
[16] ARD, p 86.
[17] ARD, p 87.
On 15 January 2020 a clinical note records: “He c/o ‘foggy’ with blurrd [sic] vision”. The doctor referred the first respondent to neurologist, Dr Nora Breen.[18]
[18] ARD, pp 88–89.
Radiological investigations
The CT scan of the cervical spine performed on 11 September 2019 was normal, with no abnormalities detected.[19]
[19] ARD, p 108.
The CT scan of the brain performed on 11 September 2019 revealed no abnormalities apart from some scalp swelling.[20]
[20] ARD, p 108.
The MRI scan of the cervical spine was recorded as normal apart from a subtle reversal of cervical lordosis between C2 and C7. It was noted: “There is no underlying abnormality to explain the subtle shift in position and it could also be purely positional and of no consequence.”[21] The MRI of the brain was noted as normal and unremarkable.[22]
[21] ARD, p 112.
[22] ARD, pp 111–112.
A bone scan was undertaken on 3 November 2020 where a clinical history was noted as: “Upper neck pain/headache, assess for C2/3, C3/4 facet joint arthropathy”. The scan revealed no abnormalities in the neck, thoracic or upper thoracic regions and “no scan evidence of osseous or articular pathology to account for the patient’s symptoms.”[23]
[23] ARD, p 167.
A further MRI of the cervical spine was carried out on 18 November 2021 which revealed the spinal canal, foramina and spinal cord all appearing normal and which found no paraspinal mass. The conclusion was reported as “[n]ormal study. No cause for the patient’s symptoms demonstrated.”[24]
[24] Reply to Application to Resolve a Dispute (reply), p 18.
Clinical neuropsychologist, Dr Nora Breen
Dr Breen in her report dated 8 April 2020 recorded a history of a 5–10 kg triangular piece of wood falling on the top of the first respondent’s head.[25]
[25] ARD, p 66.
The first respondent complained to the doctor of ongoing pain in his neck, shoulders and back in the seven months since the incident including a headache. The first respondent denied any cognitive problems apart from occasionally being forgetful. He reported having a low mood on and off since moving to Australia in 2018 however denied having suicidal ideation. The first respondent reported a disturbed sleep cycle and reduced appetite. He was able to concentrate for the full duration of the assessment and did not require a break.[26] On a self-report mood questionnaire, the responses indicated a highly elevated level of depression (extremely severe) and a moderately elevated level of anxiety.
[26] ARD, pp 67–68.
Following neuropsychological testing, Dr Breen was of the opinion that the first respondent’s description of ongoing symptoms was consistent with post-concussion syndrome. His cognitive profile could be explained on the basis of a post-concussion syndrome, but the profile was also typical of that experienced by those with significant mood disorders, such as depression and anxiety. She said that the first respondent’s mood disorder was no doubt being exacerbated by his chronic pain and dependence on Panadeine Forte which was causing excessive fatigue which would also be negatively impacting his cognition.[27]
[27] ARD, p 69.
Pain medicine physician, Associate Professor Raj Sundaraj
A/Prof Sundaraj recorded in his report dated 7 October 2020,[28] a history of a large sign board falling on the first respondent’s head when he felt severe sudden pain in the head and neck region. A/Prof Sundaraj noted that at the time of writing the report, no proper diagnosis had been made. Upon physical examination, A/Prof Sundaraj recorded a normal range of flexion in the cervical spine however a degree of stiffness and discomfort upon extension. He recorded a full range of movement upon left and right rotation and noted significant tenderness in the upper cervical facet regions specifically at C2/3 and C3/4 levels. He also noted the greater occipital nerve at the superior nuchal line was tender even to light palpation. Following examination, A/Prof Sundaraj diagnosed the first respondent with cervical facet disharmony and associated occipital neuralgia with associated maladaptive coping, reactive clinical depression and other adjustment disorder issues.
[28] ARD, p 71.
Psychiatrist, Dr Bhavanishankar, Tranquil Minds
Dr Bhavanishankar, in his report dated 18 November 2020[29] records a history of the incident as a big signboard falling approximately 3.5 meters onto the first respondent.
[29] ARD, p 81.
Dr Bhavanishankar reported complaints of anxiety, depression, poor sleep, social withdrawal, poor appetite and lethargy. The first respondent complained of 9 out of 10 pain in the mornings and the pain affected his activities of daily living including grooming, lifting and bending.[30] Dr Bhavanishankar diagnosed the first respondent with features of a major depressive disorder with anxiety and trauma symptoms.
[30] ARD, p 81.
Inner West Pain Centre, Dr Trudi Richmond
In her report dated 29 January 2021,[31] Dr Richmond recorded the incident as a heavy plywood sign falling on the first respondent’s head from a height. She noted that the first respondent saw stars however did not lose consciousness. On examination it was noted that the pain was not as severe due to the first respondent being medicated at the time. The cranial nerves (II to XII) were noted to be clinically intact with some diplopia to the right. The doctor diagnosed the first respondent with post-traumatic headache with possible occipital neuralgia and post concussive syndrome as well as depression. On examination of the cervical spine, the movements were recorded as normal with some pain on palpation on the right side.[32]
Medico-legal Evidence
[31] ARD, p 75.
[32] ARD, pp 75–76.
Dr Teychenne, neurologist
Dr Teychenne in his report dated 7 September 2021,[33] addressed to the first respondent’s legal representative, records a history of a 5 to 10 kg plywood sign falling about 10 metres before hitting the first respondent over the top of the head. The first respondent was not wearing a helmet. He was found to have a laceration on the vertex of his head. He stated that he was kneeling at the moment of impact and this compressed him down onto his calves. His thighs gave way and he finished up on his heels and then falling off to the right. He stated that everything went immediately black, and that he saw golden stars. Everything was black for one-and-a-half minutes.[34]
[33] ARD, p 19.
[34] ARD, p 20.
Dr Teychenne also reported that “[w]hen he stood up he almost immediately felt he would fall. He felt weak on the legs. He was wobbly in the legs and sat down for a minute.”[35]
[35] ARD, p 20.
On examination Dr Teychenne noted the cranial nerve examination was normal but found the first respondent had double vision to the left both in the upper and lower quadrant. When he looked down, he reported that he felt as though his eyes were being “picked out of his head”.[36] He noted an imbalance when standing with his feet together and was pushed and pulled, Romberg testing was negative however a sharpened Romberg test revealed falling to the right and mildly back. When squatting, his legs collapsed and he was slightly slow standing up from the chair without pushing up. Heel-to-shin testing and posture was normal, sternomastoid power and trapezius power were normal however the first respondent experienced sharp pain across the left and right anteroposterior C3/4 chest when testing the trapezius muscle. Dr Teychenne noted finger dexterity, finger-nose testing, finger tap, rapid alternating movements and grip count were normal. Reflexes were normal however allodynia was noted when testing the left and right triceps and the left knee. Movement of the lumbar spine was recorded as normal.[37]
[36] ARD, p, 21.
[37] ARD, pp 21–22.
When examining the cervical spine, Dr Teychenne noted flexion and extension was normal however pain was noted over the C4 vertebra. Rotation to the left and right was decreased by 30°. Pain was noted over the left and right suprascapular when testing sternomastoid power. There was a 30° decrease in rotation of his head to the left and right and a 15° decrease in lateral flexion of his head to the left and right. Sensory level to pain, touch and temperature sensation at T11 anteriorly and to temperature and touch sensation at T6 posteriorly was noted as well as pain, touch and temperature sensation at C5 in the upper limbs. Dr Teychenne noted weakness in the upper and lower extremities.[38]
[38] ARD, p 22.
Dr Tecyhenne was of the opinion that the clinical picture following examination was consistent with an incomplete central high cervical cord lesion.[39]
[39] ARD, p 28.
In commenting on the radiological evidence, Dr Teychenne noted the following:
(a) CT scan of the cervical spine was normal;
(b) MRI scan of the cervical spine showed the subtle reversal of cervical lordosis between C2 and C7 consistent with an element of muscle spasm;
(c) MRI scan of the cervical spine and bone scan had been normal without any facet joint arthritis, and
(d) CT scan of the brain on 11 September 2019 showed scalp swelling overlying the posterior aspect of the skull vertex but without any evidence of a skull fracture. He did not have any intracranial abnormality.[40]
[40] ARD, pp 22–23.
Dr Teychenne provided commentary of other medical evidence and noted the history of the incident and opinions of doctors similar to what I have noted above. He noted A/Prof Sundaraj’s diagnosis of “cervical facet disharmony and associated occipital neuralgia” and said that the headache was consistent with occipital neuralgia which was organic rather than a stress-related headache. Dr Teychenne said that occipital neuralgic type headaches were consistent with those who have sustained an incomplete cervical cord injury.[41]
[41] ARD, p 24.
Dr Teychenne said that the first respondent sustained at least a concussive head injury. He continued by explaining his reasons for such conclusion which included that everything went black for one-and-a-half minutes and that when the first respondent stood up, he almost immediately felt he would fall. Dr Teychenne particularly relied on the first respondent’s complaint that he was weak and wobbly in the legs following the incident. He says that “[w]hile this was a potential indicator of brain concussion, it was also an indicator of spinal concussion. The weak wobbly legs were consistent with what is described as spinal shock.”[42]
[42] ARD, p 27.
Dr Teychenne considered the neuropsychological testing results conducted by Dr Breen and noted Dr Breen's opinion that the ongoing symptoms were consistent with post-concussion syndrome however that the profile was also typical of a person with a significant mood disorder such as depression and anxiety which in the first respondent’s case was exacerbating the chronic pain and dependence on Panadeine Forte was causing excessive fatigue. Dr Teychenne said that the neuropsychological testing showed some cognitive deficits consistent with a mild traumatic brain injury and that concussion is classified as a mild traumatic brain injury.[43]
[43] ARD, p 26.
Dr Teychenne said that the first respondent sustained a concussive head injury (traumatic brain injury) and an incomplete high cervical cord lesion. This was based on physical examination and the first respondent’s complaints that immediately following the incident everything went black for one-and-a-half minutes, and he was wobbly on his legs (which Dr Teychenne described as consistent with spinal shock). Dr Teychenne also noted the first respondent’s complaints of a throbbing head and being off-balance the following morning were consistent with a spinal cord injury and that sharp pain over the top of the head was consistent with dysaesthesia secondary to cervicogenic upper cervical nerve root pain. The report of decreased erections of 70% was consistent with high cervical cord injury. Dr Teychenne said photophobia, particularly the following morning, was not unusual in patients with high cervical cord lesions. Dr Teychenne also noted the first respondent’s complaints of neuropathic pain and weakness in the arms that would last up to 30 minutes were consistent with a high cervical cord lesion.[44]
[44] ARD, pp 27–28.
Dr Teychenne’s diagnosis of a mild traumatic brain injury appears to be formed based on the neurological testing results and the first respondent’s complaints of forgetfulness some nine months after the incident, which Dr Teychenne says is consistent with a mild traumatic brain injury.[45]
[45] ARD, p 27.
In his supplementary report dated 17 November 2022,[46] Dr Teychenne refers to the factual discrepancy between the history of the incident obtained by both himself and Dr Granot[47] and notes: “This situation of what actually fell and what caused the injury needs to be clearly delineated.“[48] Dr Teychenne explains that his opinion is based on the history provided to him and that the symptomology immediately following the incident was likely caused by spinal shock occurring as a result of an acute injury to the upper cervical spinal cord.[49]
[46] ARD, p 34.
[47] ARD, pp 36–37.
[48] ARD, p 37.
[49] ARD, pp 37–38.
When asked to provide an explanation in response to Dr Granot’s assertion that the first respondent did not fulfil the criteria for an assessable traumatic brain injury under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), Dr Teychenne acknowledged that the Guidelines require there to be evidence of a severe impact to the head and that the injury involved a high-energy impact and at least one of the following:
(a) significant medically verified abnormalities in the Glasgow Coma Scale score;
(b) significant medically verified duration of post-traumatic amnesia, or
(c) significant intracranial pathology on CT scan or MRI.
Dr Teychenne acknowledged that a Glasgow Coma Scale score was not completed however asserted that had one been done, he may well have had a deficit. He suspected that the first respondent may not have been totally cognisant during the time where everything went black.[50]
[50] ARD, p 36.
When considering that radiological investigations did not reveal significant intracranial pathology, Dr Teychenne explained that the criteria does not encapsulate mild traumatic brain injuries occurring as a result of a concussion.[51]
[51] ARD, p 37.
Dr Teychenne reiterated his opinion that based on the solicitor’s referral note dated 31 May 2021 (which is not in evidence), the first respondent qualified for a traumatic brain injury in that he had a severe impact to the head and that the injury involved a high-energy impact.[52]
[52] ARD, p 37.
When asked to provide an explanation in response to Dr Granot’s opinion that there is no support for a spinal cord injury given the injury triggering episode was remote from his work injury and there were no upper motor neuron signs nor MRI changes at the spinal column or spinal cord, Dr Teychenne explained that the symptomology following the incident provided a “good description of acute spinal shock associated with cervicogenic headaches secondary to an injury to the high cervical spine cord”.[53] He further goes on to explain that:
“The subsequent throbbing nature of the headache as though he was being hit with a hammer is not inconsistent with a cervicogenic headache presenting with migraine like features. I commonly note this description of headache in patients with clinical incomplete cervical cord lesions and also commonly note a history of knife-like pain extending from the neck into the head in patients with cervical spine cord injuries”[54]
[53] ARD, p 38.
[54] ARD, pp 38–39.
Dr Teychenne noted the antithetic onset of upper limb symptomology recorded by both himself and Dr Granot, where Dr Granot recorded the onset of symptoms six months following the head injury, but Dr Teychenne recorded the symptoms two days after the incident, being the basis of Dr Granot’s opinion that the upper limb symptomology was unrelated to the injury.[55]
[55] ARD, p 39.
Dr Teychenne explains that the diagnosis of an incomplete cervical cord injury, in his experience, is a clinical diagnosis. Dr Teychenne noted that complaints made by the first respondent to Dr Rabbi on 9 September 2019 of pain over the back of the neck with radiation to his upper back and marked tenderness over C6 and C7 were consistent with the ideation that the onset of symptoms in the cervical spine commenced within at least two days after the incident. Dr Teychenne also noted the difference in physical examination where Dr Granot did not find any upper motor neuron signs where Dr Teychenne found weakness in both upper limbs, intrinsic hand muscle weakness and myelopathic weakness in the lower limbs.[56]
[56] ARD, p 40.
Dr Teychenne explained that central incomplete cervical cord lesions are the most common form of spinal cord injury and he stated that an MRI scan may not pick up evidence of microscopic spinal cord damage.[57]
[57] ARD, p 40.
Dr Granot, neurologist
Dr Granot in his report dated 16 November 2021,[58] addressed to the Nominal Insurer, noted the history recorded by various other sources including: the first respondent’s statement, a statement of Justin Moran dated 22 October 2019, an Incident Report dated 22 October 2019, Allied Health Recovery request dated 4 December 2019, the GP’s records, and reports by Dr Breen, Dr Richmond, A/Prof Sundaraj, Dr Bhavanishankar and Dr Teychenne. Dr Granot recorded a history of a 60cm triangular piece of unknown material, weighing approximately 5–10 kg, falling from a height of approximately 1 metre and striking the vertex of the head. He recorded that immediately following impact, the first respondent saw black and yellow stars, walked to a nearby bench and was feeling “a bit wobbly”.[59] The first respondent described a history of photophobia and severe daily throbbing headaches. He complained of a shooting pain from the shoulder to the elbow bilaterally.
[58] ARD, pp 43–52.
[59] ARD, p 53.
On examination Dr Granot noted gait was normal, including tandem and Romberg. He found moderate tenderness over the occipital ridge with mild general scalp allodynia. He noted pain with proximal upper limb power testing however found no muscle weakness, with 5/5 power being achievable for all muscle groups. Lower limb power was within normal limits, reflexes were symmetrical and normal and sensation was normal. He noted pain triggered by abduction beyond 70° bilaterally, worse on the right and it was exacerbated by abduction and external rotation as well as internal rotation radiating along the deltoid and lateral arm.[60]
[60] ARD, p 55.
Dr Granot also noted the radiological evidence was intrinsically normal.[61]
[61] ARD, p 60.
Dr Granot noted the factual dispute in terms of the composition and weight of the object and the height from which it fell.[62] Despite this, he stated that the “symptomatology described is consistent with a post-traumatic migrainous headache, with a neuropathic component, on the assumption that there was a significant blow to the head”.[63] The doctor explained that the presence of photophobia and the generalised and throbbing nature of the headache suggested it was likely migraine based rather than occipital neuralgia.[64] The doctor opined that the headaches were likely related to the injury as they commenced immediately after the incident.[65] Dr Granot believed the upper limb symptomology post-dated the injury and was clinically consistent with rotator cuff pathology.
[62] ARD, p 56.
[63] ARD, p 57.
[64] ARD, p 57.
[65] ARD, p 60.
Dr Granot disagreed with Dr Teychenne’s diagnosis of a significant traumatic brain injury on the basis that the first respondent does not fulfil the criteria for an assessable traumatic brain injury under the Guidelines and additionally, he does not believe he sustained any significant head injury. He also rejected Dr Teychenne’s diagnosis of a cervical cord injury or radicular involvement as there was no evidence either mechanistically, clinically or on imaging supporting it. He noted the upper limb symptomatology commenced six months following the head injury so is likely related to shoulder pathology triggered by a separate incident unrelated to work.[66]
[66] ARD, p 63.
THE MEMBER’S REASONS
The Member noted that the partes agreed the following issues were in dispute:
(a) Whether on 5 September 2019 the first respondent sustained injury pursuant to ss 4(a) and 9A of the Workers Compensation Act 1987 (the 1987 Act) in the nature of:
(i)traumatic brain injury, or
(ii)high cervical spine cord injury.
(b) The extent and quantification of the first respondent’s entitlement to permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of traumatic brain injury or high cervical spine cord injury on 5 September 2019.[67]
(c) The Member also had to rule upon objections to lay evidence sought to be relied on by both parties.
[67] Kamau v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 348 (reasons), [9].
The objections to the evidence
As already noted, there was a clear factual dispute as to the size, composition and weight of the object that struck the first respondent’s head and the distance that it fell. Both parties tendered evidence dealing with the specific issue in dispute, namely a supplementary statement of the first respondent dated 24 May 2023, a statement of Justin Moran dated 22 October 2019 and an attached Incident Report. However, both counsel raised objections to the admittance of that evidence, or parts thereof.
The appellant’s counsel objected to the inclusion of parts of the first respondent’s supplementary statement dated 24 May 2023, namely paragraphs [2], [3] and [5], lodged by way of an Application to Admit Late Documents (AALD) dated 29 May 2023, on the basis that the statement provides specific information about the material, shape and weight of the object and the distance it fell which differed from other evidence. The appellant submitted that this created additional ambiguity as Dr Granot’s medical diagnosis was linked to whether a significant item had hit the first respondent on the head. The late lodgment was prejudicial to the appellant on the basis that the appellant did not have the opportunity of obtaining instructions about the new evidence.
Counsel for the first respondent submitted that the first respondent would be prejudiced if the statement were to be excluded as it addresses the factual issue in dispute, being the composition, weight and shape of the object and the distance it fell. The statement also addresses factual matters contained in the statement of Justin Moran dated 22 October 2019 which was filed by the appellant by way of AALD dated 20 March 2023, which the first respondent stated had been in the appellant’s possession since October 2019.
Counsel for the appellant made submissions that the first respondent was aware of Mr Moran’s statement as Dr Granot included extracts of it in his report dated 16 November 2021. It was open for the first respondent to obtain the statement at any time.
Counsel for the first respondent then raised objection to the statement of Mr Moran dated 22 October 2019 and the attached Incident Report also dated 22 October 2019, both of which were provided in the AALD dated 20 March 2023. Both documents included evidence relating to the incident itself and the factual dispute, being the characteristics of the object and the distance that it fell. The objection was based on the appellant failing to include the documents in its s 78 notice, despite it being available, resulting in non-compliance with regulation 38 of the Workers Compensation Regulation 2016.
Counsel for the appellant argued that the first respondent should have objected to the inclusion of those documents at an earlier stage and his failure to do so was prejudicial to the appellant. She submitted that extracts of Mr Moran’s statement were included in the report of Dr Granot which was referred to in the s 78 notice.
The Member acknowledged that the subject evidence was relevant to the factual issues in dispute.[68] She accepted the first respondent’s submission that the appellant failed to comply with regulation 38 of the Workers Compensation Regulation 2016 as the statement of Mr Moran and the Incident Report were excluded from the s 78 notice, even though they had been available to the appellant.[69] The Member also accepted the appellant’s submission that extracts of Mr Moran’s statement were included in the report of Dr Granot dated 16 November 2021 which was referred to in the s 78 notice.[70]
[68] Reasons, [32].
[69] Reasons, [33].
[70] Reasons, [34].
The Member accepted that the appellant would be prejudiced by the failure to admit into evidence the statement of Mr Moran dated 22 October 2019 and the Incident Report of the same date. The Member also accepted that the appellant would be prejudiced if paragraphs [2], [3] and [5] of the first respondent’s statement were included into evidence on the basis that it would “not have an opportunity to investigate the factual issues and adduce any further evidence in that regard at this late stage.”[71]
[71] Reasons, [35].
The Member accepted that the first respondent would also be prejudiced if paragraphs [2], [3] and [5] of the first respondent’s statement were not included into evidence so as to afford him the opportunity to address the factual matters raised in Mr Moran’s statement. The Member did not consider the failure to object to the inclusion of the documents at an earlier time to be fatal, particularly given the objections derived from the appellant’s objection to the admission of relevant paragraphs of the first respondent’s statement.[72]
[72] Reasons, [36].
Given the prejudicial implications of the admittance of each article of evidence, to both parties, the Member gave consideration as to whether the prejudice could be remedied by an opportunity for both parties to submit further evidence. The Member concluded that such action was not feasible as it would delay proceedings which she considered was contrary to ss 3 and 42 of the Personal Injury Commission Act 2020 (the 2020 Act) that “requires the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.[73]
[73] Reasons, [37]–[38].
The Member decided that in the interests of justice, all evidence objected to would be excluded from the proceedings.[74]
[74] Reasons, [39].
The composition, size and weight of the object and the distance it fell
By way of written submissions, counsel for the first respondent submitted that given the evidence, including photographic evidence, clinical material, and the size of the laceration and the haematoma on the first respondent’s head, the Commission should be satisfied that the first respondent suffered a significant strike to the head.[75] Counsel for the first respondent denied the appellant’s assertion that the object was made of PVC foam weighing only 250 grams and submitted that the fact that the board in question had been chipped at one end suggested that it clearly had a hard, sharp surface capable of being chipped and inflicting a serious laceration. Counsel also submitted that the fact a ladder was used to affix the sign, (as noted in the first respondent’s statement dated 24 August 2022 and the statement of Mr Kanyiri) as well as the photographic evidence, clearly indicated that the object fell from a height of at least five metres.[76]
[75] First respondent’s written submissions before the Member, [18]–[21].
[76] First respondent’s written submissions before the Member, [16]–[17].
Counsel for the appellant made submissions that there was a clear factual dispute as to the shape, size and weight of the board that hit the first respondent and the distance that it fell and noted the lack of clear evidence indicative of same. Counsel highlighted the importance of the dispute as it turns to the issue of causation and the diagnosis of the injury.[77]
[77] Appellant’s written submissions before the Member, [7], [11].
The Member noted that there was no explicit direct evidence as to distance the board fell or how much it weighed.[78] She considered the submissions made by the appellant that the object was a light PVC foam board with sharp edges that fell approximately 1 metre and the unlikelihood that it would have caused a traumatic brain injury.[79] The Member considered the first respondent’s statement dated 24 August 2022 and the statement of Mr Kanyiri in that a ladder was required to affix the board to the display.[80] The Member noted the clinical note of Dr Rabbi on 6 September 2019 describing the object as heavy plywood weighing about 5 to 10kg.[81] The Member analysed the photographs depicting the display, surrounding structures and the object that struck the first respondent’s head and drew an inference from the photographs that “the display was clearly of a substantial size”[82] and that the board would have been affixed to the display “at a height which was, at the minimum above easy reaching height for an adult man when standing.”[83]
[78] Reasons, [113].
[79] Reasons, [112].
[80] Reasons, [114]–[115].
[81] Reasons, [116].
[82] Reasons, [117].
[83] Reasons, [117].
When considering the composition, size and weight of the object, the Member again gave considerable weight to the photographic evidence. Although she acknowledged the photographs did not depict the size of the object, she speculated that it was likely to be at least 1 metre long in context with the person holding the object and the surrounding flooring.[84]
[84] Reasons, [118].
The Member noted: “It is not entirely clear from the pictures what the board is made of, but … the surface appears to have the texture of wood or metal, more so on the broader expanses”.[85] The Member rejected the appellant’s assertion that the object was made from PVC foam and concluded the object was “substantially solid” and “at least partly made of some type of wood substance.”[86] The Member held that she was “satisfied that the board would have weighed at least several kilograms and most likely over 5 kg and less than 10kg.”[87]
[85] Reasons, [118].
[86] Reasons, [118].
[87] Reasons, [118].
The Member considered the damage to the corner of the board and inferred that the “damage to the board indicates that the board impacted with a significant degree of energy.”[88] She concluded at [121] of her reasons:
“Having regard to the evidence as a whole, I am satisfied on the balance of probabilities that the circumstances of the incident was such that the falling board would have impacted the top of the [first respondent’s] head in a significant, forceful, severe and traumatic manner. I accept that it would have been a high-energy impact.”
[88] Reasons, [119].
Traumatic brain injury
Counsel for the first respondent submitted that the first respondent suffered a traumatic brain injury from the incident, relying largely on Dr Teychenne’s opinion[89] but also on complaints made by the first respondent to treating practitioners of dizziness, headaches and insomnia.[90] Counsel referred to Dr Breen’s confirmation that a SCAT 5 concussion assessment had been conducted by physiotherapist, Matthew Hickson, on 8 January 2020 which showed evidence of cognitive impairment on basic screening measures[91] and that Dr Breen had opined the description of symptoms was consistent with post-concussion syndrome albeit acknowledging the doctor’s hypothesis associated with the psychiatric reaction to the injury.[92]
[89] First respondent’s written submissions before the Member, [44.1].
[90] First respondent’s written submissions before the Member, [27].
[91] First respondent’s written submissions before the Member, [32].
[92] First respondent’s written submissions before the Member, [34].
Counsel for the appellant submitted that Dr Teychenne’s diagnosis of significant traumatic brain injury is unfounded as there is no evidence, either by radiological imaging or clinical justification, to support the diagnosis.[93] Counsel highlighted the requirements for assessment of a traumatic brain injury as noted in the Guidelines, being:
oSignificant medically verified abnormalities in the Glasgow Coma Scale score
oSignificant medically verified duration of post-traumatic amnesia
oSignificant intracranial pathology on CT scan or MRI.
[93] Appellant’s written submissions before the Member, [4], [27].
Counsel submitted that the first respondent did not meet any of the criteria.[94] The Member considered the lay evidence, treating medical evidence and medico-legal evidence which vastly echoes what has been articulated above.[95]
[94] Appellant’s written submissions before the Member, [19]–[20].
[95] Reasons, [42]–[91].
The Member acknowledged Dr Granot’s opinion that the first respondent did not meet the criteria for an assessable traumatic brain injury under cl 5.9 of the Guidelines on the basis that there was no evidence of a significant traumatic brain injury on either imaging or clinical grounds and that there was no loss of consciousness.[96] The Member was satisfied that there was no evidence that a Glasgow Coma Scale score was undertaken,[97] there was no evidence of any significant intracranial pathology on CT scan or MRI,[98] or that there was any medical evidence specifying that the first respondent experienced a loss of consciousness or amnesia as a result of the accident.[99] However, the Member accepted Dr Teychenne’s diagnosis of post-traumatic amnesia largely based on symptoms noted in the first respondent’s statement dated 24 August 2022 that following the incident his symptomology included: excruciating pain in his neck, head and shoulders, being incredibly unsteady on his feet, needing to rest and his legs shivering and shaking uncontrollably.[100] The Member also accepted Dr Teychenne’s opinion that the first respondent was most likely not totally cognisant of all that was happening during the period immediately following the incident when he saw blackness and stars.[101]
[96] Reasons, [123]–[124].
[97] Reasons, [130].
[98] Reasons, [132].
[99] Reasons, [134].
[100] Reasons, [137].
[101] Reasons, [136].
The Member noted Dr Breen’s opinion in the report dated 8 April 2020 that the first respondent’s symptoms could be explained on the basis of a post-concussion syndrome, but was also typical of significant mood disorders[102] and Dr Richmond’s observations that the first respondent’s presentation was consistent with a post-traumatic headache, with possible occipital neuralgia and post concussive syndrome as well as depression.[103]
[102] Reasons, [139].
[103] Reasons, [140].
The Member concluded at [141] of her reasons:
“Considering the evidence as a whole, I feel a real sense of persuasion, and I accept that, as a result of the incident, the [first respondent] sustained a traumatic brain injury in the course of his employment with the [second] respondent pursuant to s 4(1) of the 198 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.”
High cervical spine cord injury
Counsel for the first respondent noted Dr Teychenne’s diagnoses of an “incomplete cervical cord lesion which was potentially high in view of the migraine like cervicogenic headaches with photophobia”[104] and submitted that an injury to the cervical spine cannot be contested given the contemporaneous support in the clinical material.[105] Counsel for the first respondent also submitted that the insurer has not denied liability for an injury to the cervical spine[106] and that the matter should be referred to a medical assessor to assess WPI attributable to the cervical spine injury.[107]
[104] First respondent’s written submissions before the Member, [44.2].
[105] First respondent’s written submissions before the Member, [45].
[106] First respondent’s written submissions before the Member, [51].
[107] First respondent’s written submissions before the Member, [52].
Counsel for the appellant highlighted the inconsistencies between the history recorded by Dr Teychenne, other contemporaneous reports and the first respondent’s own statement and submitted that the inconsistencies bring into contention the basis upon which Dr Teychenne has formulated his opinion being the foundation for the WPI assessment.[108] Counsel also submitted that Dr Teychenne’s diagnosis of an incomplete cervical cord injury was made without justification or explanation[109] and is against the weight of the evidence so cannot be accepted.[110] Counsel acknowledged that while the appellant did not specifically deny the first respondent sustained a cervical spine injury, there was no evidence of the cervical spine injury in the usual respect as there was no separate identification of the injury with the attached WPI assessment.[111] It was submitted that Dr Granot’s opinion is comprehensive, clear and concise, the history recorded is consistent with the contemporaneous reports and the first respondent’s own statement and therefore should be preferred over that of Dr Teychenne.[112]
[108] Appellant’s written submissions before the Member, [22]–[24].
[109] Appellants written submissions before the Member, [28].
[110] Appellant’s written submissions before the Member, [29].
[111] Appellant’s written submissions before the Member, [19].
[112] Appellant’s written submissions before the Member, [34]–[39].
In making her decision, the Member reiterated her prior findings that the impact would have been of high-energy and that the board struck the first respondent’s head as it fell with a severe and a high-energy impact.[113] She referred to the treating medical evidence of Dr Rabbi, Dr Breen and A/Prof Sundaraj who all noted complaints of cervical spine pain[114] and referred to the CT scan of the cervical spine showing no significant abnormality.[115]
[113] Reasons, [154].
[114] Reasons, [156]–[158].
[115] Reasons, [160].
The Member referred to the incongruous findings of the clinical examinations conducted by Dr Granot and Dr Teychenne, namely that Dr Ganot did not find any upper motor neuron signs however Dr Teychenne did.[116] She noted Dr Granot’s opinion that as the upper limb symptomology began six months after the incident, it was likely to be related to shoulder pathology unrelated to the incident[117] and that as there were no MRI changes of the spinal column or spinal cord at all, there was no evidence whatsoever of a cervical spinal cord or associated injury.[118] The Member referred to Dr Teychenne’s findings of a high incomplete cervical cord lesion injury based on: the history of a heavy object striking the first respondent’s head, his own clinical assessment and the symptomology immediately following the incident and thereafter.[119]
[116] Reasons, [152]–[153].
[117] Reasons, [152].
[118] Reasons, [152].
[119] Reasons, [153].
The Member held that Dr Teychenne’s opinion should be accepted as she felt that he provided a clear and reasoned consideration and analysis of the history, and a reasoned and sound explanation for the diagnosis which she felt was consistent with the evidence of history, symptoms, treatment, investigations and examination.[120] The Member held that the first respondent sustained a high cervical cord lesion injury in the course of his employment with the second respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.[121]
[120] Reasons, [162].
[121] Reasons, [163].
Accordingly, orders were made in favour of the first respondent in the Certificate of Determination issued on 14 July 2023, which records:
“The Commission declares:
1. The [second] respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent.
2. The [second] respondent, Chamight Pty Ltd, was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) at all relevant times.
The Commission determines:
1. The [first respondent] sustained a traumatic brain injury on 5 September 2019 in the course of his employment with the [second] respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.
2. The [first respondent] sustained a high cervical cord lesion injury on 5 September 2019 in the course of his employment with the [second] respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.
3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury: 5 September 2019
Body parts: nervous system
cervical spine
Method: whole person impairment
4. The materials to be referred to the Medical Assessor are to include:
(a)Application to Resolve a Dispute (ARD) and attached documents.
(b)Application to Admit Late Documents (AALD) by the [appellant] dated 20 March 2023, which contains the Reply to ARD (Reply), with the exception of:
(i)statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and
(ii)Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15).
(c)AALD by the [first respondent] dated 29 May 2023, with the exception of:
(i)paragraphs 2, 3 and 5 of the [first respondent’s] supplementary statement dated 5 April [sic, 24 May] 2023 (at AALD by [first respondent] dated 29 May 2023, page 2).
(d)AALD by the [appellant] dated 29 May 2023.
5. The [appellant] is liable to pay compensation to the [first respondent] pursuant to s 66 of the 1987 Act as if it were the insurer of the [second] respondent, Chamight Pty Ltd, at all relevant times.
6. Pursuant to s 145 of the 1987 Act, the [second] respondent, Chamight Pty Ltd, reimburse the [appellant] the amounts paid out of the Insurance Fund in respect of the above-mentioned compensation.”
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal to the Member’s decision:
GROUND ONE – Error in Discretion:
“The interlocutory determination relates to the admissions of documents relevant to the determination of the substantive matter.”
GROUND TWO – Errors of Fact:
(a) “Failing to provide adequate reasoning for her findings with respect to the shape, size weight and drop of the object against the objective evidence.”
(b) “Failing to provide adequate reasoning for accepting the assumptions of Dr Teychenne with respect to the traumatic brain injury and high cervical cord lesion injury.”
GROUND THREE – Errors of Law:
“The Member erred in finding that the [first respondent] sustained a traumatic brain injury pursuant to s 4(a) of the Workers Compensation Act1987.”
“The Member erred in finding that the [first respondent] sustained a high cervical cord lesion pursuant to s 4(a) of the Workers Compensation Act 1987.”
ON THE PAPERS
The parties submit the appeal can be dealt with on the papers.
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.”
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/INTERLOCUTORY
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The appellant also seeks to appeal the interlocutory decision of the Member which excluded certain evidence which I have referred to above. Leave to appeal this aspect of the decision is required by s 352(3A) of the 1998 Act.
LEGISLATION
Paragraphs 26 and 28 of Procedural Direction PIC 3 provide:
“Admission of late documents
26. Parties are expected to comply with the timeframe requirements set out in the legislation and rules. The lodgment and registration of the appropriate form does not mean that the document attached is admitted as evidence in the proceedings.
…
“28. In determining an application for leave to admit late documents, the following matters will be considered:
(a)the interests of justice;
(b)the requirements of the workers compensation legislation and the PIC Rules;
(c)the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;
(d)any prejudice that would result from granting or refusing leave to admit the documents;
(e)the effect, if any, on the timely resolution of the dispute, and
(f)the objects of the Commission under section 3 and 42 of the [2020] Act.”
Regulation 38 of the Workers Compensation Regulation 2016 (NSW) provides:
“38 Notice of insurer decisions
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a)a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b)a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c)a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d)details of the procedure for requesting a review of the decision,
(e)a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f)the contact details for the Independent Review Officer,
(g)the street address and the email address of the President,
(h)a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute.”
DISCUSSION
As to Ground One
The appellant asserts that there was a clear factual dispute about the “shape, size and weight of the object which struck the first respondent, as well as the distance from which it fell.”[122] At the hearing, the Member had excluded statements from the first respondent and Mr Moran, in circumstances where both statements dealt with these precise issues in dispute. The appellant notes that Mr Moran’s statement was before Dr Granot and was referred to in his report which was before the Member.
[122] Appellant’s submissions dated 21 August 2023, [5.1].
The first respondent asserts that the appeal on this point effectively reverses the objection taken by the appellant at first instance to the statement of the first respondent. The first respondent maintains its objection to Mr Moran’s statement based on non-compliance with regulation 38 of the Workers Compensation Regulation 2016.[123] The first respondent says that other than a broad statement about the material being necessary for the proper and effective determination of the dispute, no error in the Member’s decision has been identified.
[123] Respondent’s submissions dated 24 September 2023, [3.1.7].
In reply the appellant says:
“With the benefit of hindsight, the Member should have admitted all evidence and then given each piece the appropriate weight.”[124]
[124] Appellant’s submissions dated 17 October 2023, [1.1.1].
Consideration
The appellant asserts that the part of the Member’s decision which excluded the two statements and the attached Incident Report was interlocutory in nature. No issue with this description has been taken by the first respondent. This may or may not be a correct characterisation of the orders made by the Member to exclude evidence, as the rejection of evidence at a hearing may involve errors of law that can be appealed. But given the parties effectively agree that the decision to exclude the particular evidence was interlocutory, I will proceed on that basis.
Under s 352(3A) of the 1998 Act, an appeal against an interlocutory decision requires leave to appeal. Such leave will not be granted unless the Commission is of the opinion that “determining the appeal is necessary or desirable for the proper and effective determination of the dispute.” In Collingridge v IAMA Agribusiness Pty Limited,[125] Deputy President Roche said that this provision required a consideration of the nature of the dispute and the orders sought on appeal.
[125] [2011] NSWWCCPD 31.
As I have described above, the real issues in dispute between the parties involved a controversy about the incident itself on 5 September 2019, namely the size and weight of the board which struck the first respondent and how far it fell. Allied to this question was a dispute about the nature of the injuries suffered by the first respondent and the differing opinions of the medical specialists, specifically Dr Teychenne and Dr Granot. These two questions constitute the nature of the dispute in this matter.
In terms of the orders sought on appeal, they are to set aside Orders 1 and 2 made by the Member, which are the findings about the nature of the injuries suffered as well as consequential orders referring certain evidence to the medical assessor in Orders 3 and 4. The appellant rightly points out that depending upon the result of the appeal, Orders 3 and 4 may require amendment.
I agree with the first respondent’s submission that the appellant’s arguments in this ground do not, in terms, clearly articulate what the error is or point to where in the Member’s decision the error is said to have been made. However, it is tolerably apparent that the essence of this ground is that the Member’s decision not to admit the two statements and the attached Incident Report was attended upon by error of the House v King type, given the discretionary nature of this aspect of the decision.[126] Pausing here, I would note that the Incident Report, in the form of an email dated 22 October 2019, is referred to in Mr Moran’s statement at paragraph [47][127] and is attached to his statement.[128]
[126] House v The King [1936] HCA 40; 55 CLR 499 (House v King).
[127] Reply, p 13.
[128] Reply, p 15.
The decision to exclude the evidence contained in the two statements appears at reasons [12]–[40]. At reasons [32], the Member finds that the evidence which was objected to by both parties “deals with factual issues relevant to the incident. It is relevant to the issues in dispute” (emphasis added). No issue is taken with this finding by either party on appeal.
Further, the Member at reasons [35] and [36] accepts that each party would be prejudiced by the failure to admit the statement that each party sought to rely on. No issue is taken with this finding by either party on appeal.
The dispositive sections of the Member’s decision rejecting the documents can be found at reasons [37]–[39], which I set out in full below.
“37. Prejudice to both parties caused by admission of the evidence objected to may be cured by an opportunity for the parties to adduce and lodge further evidence. However, such a course of action would delay resolution of this dispute.
38. Whilst that is an option worthy of serious consideration, I also need to consider the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020 ... In particular, s 42(1) requires the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
39. On balance, having regard to all of the above matters that I have referred to above in relation to this particular proceeding, I consider that the interests of justice is best served by not admitting into evidence any of the evidence that was the subject of objection by either the [first respondent] or the [appellant].”
It is apparent from a review of these three paragraphs that the Member was most concerned with effecting the quick resolution of the dispute. Delay was clearly the determining factor.
When I review the evidence of Drs Teychenne and Granot, there is a clear difference in the histories that each doctor has been given about the circumstances of the accident. Dr Teychenne in his report dated 7 September 2021[129] records the following history:
“He stated that a 5 to 10 kg plywood sign fell about 10 metres hitting him over the top of the head. He was not wearing a helmet.”[130]
[129] ARD, p 19.
[130] ARD, p 20.
Dr Granot, in his report dated 16 November 2021 had been instructed with the statement of Mr Moran dated 22 October 2019. This statement had been excluded by the Member but salient aspects of it have been recounted by Dr Granot in the body of his report, including the following description of the accident. This was germane to Dr Granot’s opinion. Mr Moran says that the first respondent was struck by a lightweight PVC board, which is described in the following terms:
“42. The PVC foam piece was about 600mm by 400mm by 250mm and weigh [sic] about 250gm.
43. I estimate that the PVC foam piece fell from about 1 metre from the top of the display. Steven was crouched down under the stand at the time.”[131]
[131] ARD, p 44.
Dr Granot’s report was supplied to Dr Teychenne who was asked a number of questions about it. Dr Teychenne’s report in response is dated 17 November 2022.[132] Dr Teychenne says that the injury involved a “high-energy impact.” The doctor then notes the disparity between the history he had obtained and that provided to Dr Granot. Dr Teychenne says that “[t]his situation of what actually fell and what caused the injury needs to be clearly delineated.” And later on the same page the doctor says: “Again, what actually fell and what caused the laceration on the top of Mr Kamau’s head needs to be clearly defined”[133] (emphasis added).
[132] ARD, p 34.
[133] ARD, p 37.
This disparity in the histories goes directly to the first question to be decided in this matter. Whilst Mr Moran’s statement was not admitted and Order 4(b)(i) specifically removes it from the medical assessor’s materials, quotations from it appear in Dr Granot’s report. The differing histories are also extensively commented upon by Dr Teychenne in his second report and the doctor clearly states that this conflict needs to be resolved. This second report of Dr Teychenne is also in the materials before the medical assessor. This situation will quite clearly be unsatisfactory for the medical assessor to whom this matter would be referred.
This matter is a claim for lump sum permanent impairment. A person in the first respondent’s position may only make a single claim for permanent impairment.[134] Such an assessment is conclusively presumed to be correct.[135] An appeal from the medical assessment lies only in respect of the grounds set out in s 327(3) of the 1998 Act. Consequently, the application for permanent impairment is an important application for both parties given these provisions. It is important that the material referred enables the medical assessor’s assessment to proceed fairly and efficiently.
[134] Section 322A of the 1998 Act.
[135] Section 326(1) of the 1998 Act.
In this matter when deciding not to admit the two statements, the Member has not had regard to the conflicting histories given to Drs Teychenne and Granot and how that could adversely affect the medical assessment. For example, what is the medical assessor to make of the extracts from Mr Moran’s statement contained in Dr Granot’s report? What is the medical assessor to make of Dr Teychenne’s concerns about the different histories contained in his second report? Would reference to the extracts from Mr Moran’s statement by the medical assessor lead to an appeal given the terms of Order 4(b)(i) in the Certificate of Determination? In a House v King sense, this was a relevant matter that was not considered by the Member. I would remark that this conundrum was brought to the Member’s attention at the hearing on 5 June 2023,[136] and has not been dealt with in the decision.
[136] Transcript (T) of proceedings 5 June 2023, T 19.30–20.24.
Additionally, when I consider the Member’s reasons, it seems that the moving reason for excluding the statements was the delay that would thereby be occasioned to the dispute.[137] Having found actual prejudice to both parties if the statements were not admitted and that the evidence was relevant to the issues in dispute, the Member was required to consider these competing issues before coming to a final decision on the question of admission. It is quite correct that the Member referred to ss 3 and 42 of the 2020 Act in terms of the statutory mandate for the Commission to resolve the real issues in dispute justly, quickly and cost effectively. I would remark that the Parliament did not give precedence to any one of these imperatives over the others, rather they collectively constitute the manner in which the Commission is to approach dealing with disputes. In this circumstance it would appear that the Member was mainly concerned with quickly resolving the dispute and as much is apparent from reasons [37]–[39]. This was not the correct approach.
[137] Reasons, [37].
I accept that in matters of the exercise of discretion at first instance, on appeal one should exercise caution and be slow to intervene. A difference of opinion about the outcome of the discretionary decision is insufficient to attract intervention.[138] But, in Mudginberri, Beazley JA, quoting a statement by Deane J in Squire v Rogers,[139] said:
“A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him.”[140]
[138] Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1986) 12 FCR 10 (Mudginberri), [137], per Beazley JA.
[139] (1979) 39 FLR 106, 113–4.
[140] Mudginberri, [138].
The Member has failed to have regard to factors relevant to the exercise of her discretion, namely the relevance of the excluded evidence to the real issue in dispute to the parties, the presence of aspects of Mr Moran’s evidence in Dr Granot’s report and the response to it by Dr Teychenne, and her approach to ss 3 and 42 of the 2020 Act. The Member, having found actual prejudice would accrue to both parties, does not say why the delay in the hearing of the proceedings prevailed over the prejudice that would accrue. In my view, the excluded evidence, which is the subject of debate in the competing opinions of the medical specialists, is not only necessary and desirable for the proper and effective determination of the dispute, it is essential for the proper disposition of this application. As I have referenced from Mudginberri at [138] (above), I consider that the discretion miscarried due to an erroneous assessment of the factual material.
I grant the appellant leave to appeal against the interlocutory decision of the Member excluding this material. The Member’s decision excluding the evidence of the first respondent, Mr Moran and the attached Incident Report was an error in the exercise of the Member’s discretion. Ground One has been established.
As to Ground Two
Ground Two proceeds on the basis of two sub-grounds which are both described as errors in fact finding. They are as follows;
(a) Sub-Ground One – Failing to provide adequate reasoning for her findings with respect to the shape, size, weight and drop of the object against the available evidence.
(b) Sub-Ground Two – Failing to provide adequate reasoning for accepting the assumptions of Dr Teychenne with respect to the traumatic brain injury and high cervical cord lesion injury.
Appellant’s submissions on Ground Two
As to Sub-Ground One
Sub-Ground One challenges the Member’s findings with respect to the findings about the shape, size and weight of the board which struck the first respondent as well as the distance that it fell before striking the first respondent.[141] The appellant also challenges the Member’s finding that the board struck the first respondent in a “high-energy impact”.[142]
[141] Reasons, [116]–[119].
[142] Reasons, [121], [128].
The appellant points to concerns in Dr Teychenne’s second report about the facts relating to the incident[143] before making the following submission:
“Dr Teychenne then highlights in the following paragraph [ARD p 37] that his opinion is based upon various factual findings, which the Member did not properly determine and which were inconsistent with the contemporaneous reports. None of this was dealt with by the Member. This is an error of fact and law.”[144]
[143] Appellant’s submissions dated 21 August 2023, [6.10]–[6.11].
[144] Appellant’s submissions dated 21 August 2023, [6.12].
The appellant says that there was no evidence of a high-energy impact to substantiate this finding.[145] The appellant also says that the Member did not say why she preferred one version over others:
“The Member made no mention of the alternative contemporaneous record of the [first respondent’s] own signed statement, or even that she preferred one over the other, which was consistent with the [first respondent’s] contemporaneous presentation to his treating practitioners. The elaboration of the initial symptoms post injury do not come on until much later. The Member although being directed in written submissions to these issues, did not deal with them. This is an error.”[146]
[145] Appellant’s submissions dated 21 August 2023, [6.7].
[146] Appellant’s submissions dated 21 August 2023, [6.14].
Further, the appellant argues:
“The Member [from paragraph 47 of reasons] makes specific reference to the [first respondent] being woken up by [a] colleague, including the shaking and being wobbly on his feet. This was emphasised by the Member [50–53]. Ordinarily not much may turn from this, but it is the [first respondent’s] August 2022 statement which articulated a myriad of symptoms, which were repeated by Dr Teychenne, and then reemphasised by the Member [reasons 86]. Dr Teychenne was the only practitioner who only found these symptoms (and others) but also articulated the symptoms into a diagnosis. The [first respondent] has provided a photo of the board but in his August 2022 statement he is silent on the weight of the board and how far it fell. [ARD 2 pp 12–16]. The Member was required to make a properly reasoned finding on these issues.”[147]
[147] Appellant’s submissions dated 21 August 2023, [6.16].
In conclusion the appellant submits a number of matters at paragraph [6.17], which I note but do not repeat, before submitting the following:
“The findings at [116]–[120] are not in accordance with the evidence and further, it was never alleged that the impact was ‘significant forcefully sever traumatic manner [sic] or a high energy impact’ – [120]. There was no expert evidence regarding the impact or the like. The Member has provided no basis for her conclusion that the impact was ‘significant forceful severe traumatic manner or a high energy impact’. In forming that conclusion without proper basis it brings into issue the opinion of Dr Teychenne.”[148]
[148] Appellant’s submissions dated 21 August 2023, [6.18].
As to Sub-Ground Two
The complaint in this ground can be shortly stated. The appellant complains that the basis of Dr Teychenne’s opinion rested on a number of assumptions that were not found by the Member. Dr Teychenne’s opinion was in part based upon a history that the board fell 10 metres before striking the first respondent. The appellant says that there was no evidence that the board fell this distance.
First respondent’s submissions on Ground Two
The first respondent refers to a number of observations made by the Member[149] before making her findings at reasons [118]–[119]. The first respondent says that the appeal ground, based upon establishing an error of fact, has failed to show error in the Member’s reasoning. If this is accepted, the first respondent contends, both limbs of Ground Two must fail.
[149] Respondent’s submissions dated 24 September 2023, [3.2].
Appellant’s reply submission
The appellant says that the “crux of this error is the finding that there was a ‘significant degree of energy’ caused by the impact of the PVC board. No expert gave an opinion to that effect, nor was it argued by the parties. It was not open for the Member to make that finding of fact.”[150]
[150] Appellant’s submissions 17 October 2023, [1.2.1].
Consideration
Section 352(5) of the 1998 Act governs intervention on appeal. In terms of the approach to an asserted error of fact, the Member must be shown to have been wrong.[151]
[151] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [17]–[21].
Before the Member, the size, shape, and weight of the board was clearly an issue in contest, as was the distance the board travelled before striking the first respondent.
The first respondent’s submissions before the Member were in writing and dated 15 June 2023 (wrongly dated 2022). The first respondent summarises the evidence firstly from the first respondent and Mr Kanyiri before making submissions about the photographic evidence of the board.[152] The first respondent then recounts the histories recorded by Drs Teychenne and Granot, which I have referred to above in Ground One relating to the size, weight and composition of the board and how far it fell.[153] The first respondent makes no specific submission about the likely weight of the board save for questioning whether it was composed of PVC weighing 250 grams. The first respondent submitted to the Member that the board fell from a distance of at least 5 metres.[154] The first respondent then put the following to the Member which I extract in full:
“Dr Teychenne records a consistent history although the weight of the sign does not concur with histories given earlier but ultimately the weight of the sign is not necessarily a critical element in the determination of the fact that the [first respondent] suffered an impact to his head when one has regard to the photographic evidence touched upon above.”[155] (emphasis added)
[152] First respondent’s written submissions before the Member, [7]–[11].
[153] First respondent’s written submissions before the Member, [13]–[14].
[154] First respondent’s written submissions before the Member, [16]–[17].
[155] First respondent’s written submissions before the Member, [43].
In reply, the appellant identified that the Member had to resolve the issue about the shape, size and weight of the board. The appellant drew attention to the first respondent's statement which says nothing about either the weight of the board or how far it fell. Likewise, the appellant refers to Mr Kanyiri’s statement which is also silent on the size and weight of the board. I would also remark that Mr Kanyiri posits no estimate of the distance that the board fell. The appellant also referenced Mr Moran’s statement, that was excluded, and the estimations that he had given about size, shape, weight and distance that the board fell. The appellant submitted that the board was light, made of PVC and fell “only a metre or so”.[156]
[156] Appellant’s written submissions before the Member, [16].
The appellant then submits to the Member on the history taken by Dr Teychenne being the only record that the board fell 10 metres,[157] saying that this history cannot be accepted. The appellant directs attention to Dr Granot’s report saying the history that doctor took was consistent with the contemporaneous reports,[158] namely the board or piece was estimated at 5–10 kilograms, falling from 1 metre.
[157] Appellant’s written submissions before the Member, [22].
[158] Appellant’s written submissions before the Member, [34].
Tellingly, neither party advanced any submission which was to the effect that the impact involved “a significant degree of energy” or that it was a “high-energy impact.”[159] The only origin of this evidence is to be found in Dr Teychenne’s second report of 17 November 2022 where he says, “I considered that Mr Kamau did have a severe impact to the head and that the injury did involve high-energy impact”[160] (emphasis added). This same phrase is repeated on the next page. As I have outlined above in answer to Ground One, Dr Teychenne in his report clearly identifies the inconsistent history he has taken of the facts of the incident as opposed to Dr Granot and states that these facts need to be “clearly delineated” and “clearly defined”.[161]
[159] Reasons, [119], [121].
[160] ARD, p 36.
[161] ARD, p 37.
The Member was wrong to make a finding that the incident was a “high-energy impact”. Not only was there no direct evidence of this, neither party submitted that the impact on the first respondent’s head was of this quality. Additionally, in light of Dr Teychenne’s qualification that the facts be delineated or defined, his opinion can only be considered to be provisional at best in this respect. It was wrong to use that phrase in that report as a basis for the factual finding about the force of the impact.
In terms of the dispute about the size, shape and weight of the board, there was an apparent divergence of evidence about these matters which were the subject of submissions from both parties. Before the Member was Dr Granot’s report which contained extracts from Mr Moran’s excluded statement which described the board’s dimensions, weight and composition as PVC. There was no attempt by the Member to deal with what was before her in terms of this aspect of Dr Granot’s report. There was no reasoning as to why this history was not given any weight or why the history taken by Dr Teychenne was apparently preferred, even though as I have stated above, Dr Teychenne himself was alive to the disparity between the histories given of the incident. The Member found that “the board would have weighed at least several kilograms and most likely over 5 kg and less than 10 kg.”[162] However, in making this finding, the Member was obliged to attempt to resolve the various differing versions about the weight, size and measurements of the board. The Member’s approach seems to have involved the Member considering the photographs and reaching a conclusion based upon her interpretation of the dimensions and composition of the board based upon the photographs.[163] The Member was faced with conflicting evidence on these various matters, and this was a controversy that had to be resolved in terms of exposing the thought processes as to why particular evidence was preferred over the other. This was not done. Indeed, the decision is silent on this question.
[162] Reasons, [118].
[163] Reasons, [117]–[118].
In terms of Sub-Ground Two, there is no evidence other than what is recorded in Dr Teychenne’s report, that the board fell 10 metres. The Member says at reasons [113]: “There is no explicit direct evidence in relation to the distance that the board fell before it struck the [first respondent’s] head nor in relation to the weight of the board.” By explicit direct evidence I assume that the Member is referring to the first respondent and Mr Kanyiri. However, there was evidence recorded in both Dr Teychenne’s and Dr Granot’s reports about these matters which is just not dealt with.
I accept the appellant’s complaint that Dr Teychenne’s opinion, which the Member preferred, was based upon certain assumptions or facts which were not established. The Member made no finding at all about how far the board fell. Dr Teychenne’s opinion that the impact was high-energy was seemingly based, inter alia, upon the weight of the board (5–10 kg) and the 10 metre distance it fell, which were his instructions apparently from the first respondent.
I would remark that once the Member had excluded the evidence which I have dealt with in Ground One, the task in terms of fact finding became significantly more difficult.
I find that the Member was in error in terms of fact finding. The finding that the incident was a high-energy impact was wrong. This opinion was found in Dr Teychenne’s report and was based on a fact or assumption that was not proved, namely the distance the board fell before striking the first respondent. The finding about the likely weight of the board was based upon the Member’s interpretation of the photographs. There was conflict in the evidence about the weight of the board which had to be resolved in a reasoned way. This was not done.
Error has been established in both sub-grounds, Ground Two has been made out.
As to Ground Three
Ground Three is made up of two sub-grounds which are in the following terms:
(a) Sub-Ground One – The Member erred in finding that the first respondent sustained a traumatic brain injury pursuant to s 4(a) of the 1987 Act.
(b) Sub-Ground Two – The Member erred in finding that the first respondent sustained a high cervical cord lesion pursuant to s 4(a) of the 1987 Act.
Appellant’s submissions on Ground Three
As to Sub-Ground One
The appellant submits that in the entirety of the medical evidence presented in this case, Dr Teychenne was the only doctor who diagnosed that the first respondent had suffered a traumatic brain injury in the subject accident. The appellant submits that this was an error of law for the following reasons:
“7.3. Despite being provided with the guidelines for the assessment of traumatic brain injury … the Member ignored the required sections and indeed found in favour of the opinion of Dr Teychenne. This is an error in law. The Member failed to apply the guidelines and follow the opinion of Dr Granot which clearly states that the following 4 points are required for a for traumatic brain injury to be found.
7.3.1.There should be evidence of a severe impact to the head, or that the injury involved a high-energy impact and
7.3.2.The Clinical assessment must include at least one of the following:
7.3.2.1.Significant medically verified abnormalities in the Glasgow Coma Scale score.
7.3.2.2.Significant medically verified duration of post-traumatic amnesia.
7.3.2.3.Significant intracranial pathology on CT scan or MRI.
7.4. As articulated above there was no basis for the Member to conclude evidence of severe impact to the head of high energy impact.
7.5. Although Dr Teychenne finds that there was (a high energy impact) he does not define what that is. Further the Member does not define what a severe impact to the head or a high energy impact was in this matter.
7.6. Even if there was, there is no evidence of the clinical assessment of any the criteria in cl 5.9. There was no [Glasgow Coma Scale score] undertaken. There was no significant or otherwise medically verified duration of post-traumatic amnesia. There was no significant or otherwise intracranial pathology on CT scan or MRI. The Member’s finding in these circumstances in an Error of Law.
7.7. Dr Teychenne attempts to justify that the [first respondent] did meet the criteria because of the ‘evidence of severe impact of the head’ but that is simply factually incorrect. The Member appears to accept this, but it was an Error in Law for her to do so. Further the references (at ARD 36–37) dealing with the cl 5.6 criteria appear ONLY and solely within Dr Teychenne’s report there are no other contemporaneous reports meeting the guidelines. He attempts to justify his opinion simply because the [first respondent] was struck on the head. With respect, that is not the criteria for a traumatic brain injury. There was no mention of post traumatic amnesia in the [first respondent’s] 2019 statement, nor his contemporaneous treating records. It only appears in Dr Teychenne’s report – noting that it was therefore medically verified. The difficulty with the reliance on his opinion is that the doctor is verifying his own opinion in the absence of any objective evidence.”
The appellant refers to a number of Commission Medical Appeal Panel decisions dealing with what is required to establish a traumatic brain injury.[164] These cases were to the effect that significant post-traumatic amnesia had to be medically verified to substantiate the diagnosis. This did not exist in this matter.
[164] Appellant’s submissions dated 21 August 2023, [7.8]–[7.10].
Finally the appellant refers to the Member’s failure to deal with the competing opinion of Dr Granot. There was no reasoning as to why Dr Teychenne’s opinion was preferred. Indeed the first respondent’s treating doctors’ opinions were likewise not referred to by the Member when she preferred the opinion of Dr Teychenne.
As to Sub-Ground Two
The appellant says that Dr Teychenne is the only doctor who is of the opinion that the first respondent sustained a high cervical cord lesion and there is no radiological evidence supporting this diagnosis.[165] The appellant argues that:
“7.18. The [first respondent’s] own treating practitioners have never identified, suspected or treated the [first respondent] for this injury. It was not even a differential diagnosis from his treating practitioners. It was speculative and without any radiological evidence. It only came to fruition following a medical legal appointment with Dr Teychenne. He is the only practitioner who opines this diagnosis and based this opinion solely upon the version of events provided by the [first respondent] most of which only appear in or after his appointment with that doctor (notwithstanding the [first respondent] was complaining of migraines and light sensitivities and neck pain, in the few months after the accident).
7.19. Dr Teychenne did not explain how the cord lesion was causally related to the circumstances of the injury. Put simply he has not explain[ed] or identif[ied] the nature of the pathological change that caused by the mechanism of injury.”
[165] Appellant’s submissions dated 21 August 2023, [7.15].
The appellant complains that Dr Teychenne’s opinion was accepted without confirming the underlying assumptions used to form the opinion. The appellant also complains that the Member gave no reasons for rejecting the opinion of Dr Granot.[166]
[166] Appellant’s submissions dated 21 August 2023, [7.22].
First respondent’s replies to both sub-grounds
The first respondent argues that the appeal is in fact an impermissible attempt to reagitate the merits as opposed to the identification of error. The first respondent argues:
“Absent a compelling reason as to why the decision maker’s preference of one body of evidence over another is able to be challenged, this ground of appeal must fail.”[167]
[167] Respondent’s submissions dated 24 September 2023, [3.3.3].
The first respondent in reply to both sub-grounds in Ground 3 says that the Member did weigh and construe the medical evidence, pointing to reasons [122], [126]–[141]. The first respondent submits that:
“The member acknowledged the issues raised by the appellant at first instance relative to traumatic brain injury (par [122]) and cervical spine cord injury (par [151]), engaged with the disputes between Drs Teychenne and Granot vis a vis diagnosis, identified the issue at hand and referenced the opinions of treating medical practitioners before expressing her opinion as to both traumatic brain injury and cervical spinal cord injury (see pars [129]–[139] and pars [152]–[153]).”[168]
[168] Respondent’s submissions dated 24 September 2023, [3.3.10].
Appellant’s reply submission
In its reply submission, the appellant responds in the following manner:
“Further, and more importantly there is no diagnostic testing to support Dr Teychenne’s untested hypothesis. The acceptance of Dr Teychenne’s opinion ‘without reservation’ [is] a fundamental error in that the Member failed to give any consideration to the plethora of medical evidence to the contrary.
Any injury (in the form of a pathological change) must be medically verified. In this case there is no objective diagnostic imaging, no contemporaneous report or record of symptoms (that cannot be equally explained by an alternative and more widely accepted diagnosis) and no treating support for any traumatic brain injury.”[169]
[169] Appellant’s submissions dated 17 October 2023, [1.3.2]–[1.3.3].
Consideration
The appellant complains that the Member failed to apply the Guidelines. I should remark that whilst a medical assessor conducting an assessment is bound to follow the Guidelines,[170] the Member has no such obligation. So I do not accept that aspect of the appellant’s submission.
[170] Section 322(1) of the 1998 Act.
Before the Member, the appellant challenged both the factual assumptions underpinning Dr Teychenne’s opinions as well as the provenance of those opinions, stating:
“Dr Teychenne’s opinions and approach to the assessment of the [first respondent] is confusing, his findings are simply not explained.”[171]
[171] Appellant’s written submissions before the Member, [32].
As a consequence of this submission, it is necessary to state a few principles about the correct approach to expert evidence in Commission proceedings.
A few principles regarding the approach to expert evidence in the Commission
The starting point for this consideration is r 73 of the Personal Injury Commission Rules 2021. This rule governs the approach to evidence in Commission proceedings and provides as follows:
“73 Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
The predecessor to r 73 was r 15.2 of the former Workers Compensation Commission Rules 2006. Rule 15.2 was identical to an earlier rule, r 70 of the Workers Compensation Commission Rules 2003 (2003 Rules). This history is relevant as the former r 70 was examined in South Western Sydney Area Health Service v Edmonds[172] where McColl JA (Giles and Tobias JJA agreeing) observed:
“While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the [2003 Rules] provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.”[173]
[172] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
[173] Edmonds, [127].
Her Honour continued in Edmonds in the following terms:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59]–[82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39–40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
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.”[174]
[174] Edmonds, [130]–[132].
These are the principles and approach I will apply to the Member’s treatment of the opinion of Dr Teychenne. The question I am concerned with is whether the Member was in error in construing Dr Teychenne’s opinion so as to enable it to provide evidentiary support for the ultimate findings made by the Member regarding the allegations that the first respondent suffered a traumatic brain injury and a high cervical cord lesion in the subject incident.
Dr Teychenne’s opinion
Sub-Ground One – Traumatic brain injury
The Member dealt with this aspect of the dispute at reasons [122]–[141]. The Member commenced by recounting the requirements of the Guidelines (cl 5.9) with respect to the assessment of a traumatic brain injury.[175]
[175] Reasons, [123].
The Member recorded Dr Granot’s opinion at reasons [124] in the following terms:
“Dr Granot’s independent medical opinion was that the [first respondent] does not fulfil the criteria for an assessable traumatic brain injury under [the Guidelines] on the basis that there was no evidence for a significant traumatic brain injury on imaging or clinical grounds, given that there was no loss of consciousness nor imaging changes to support such an injury.”
There is no dispute that the first respondent did not satisfy the requirements set out in cl 5.9 of the Guidelines for an assessable traumatic brain injury, this was acknowledged by the Member at reasons [129]–[134].
Dr Teychenne noted that the first element in the Guidelines, a Glasgow Coma Scale score, was not done and says that this “ … did not imply that in the immediate period after the impact when his vision went black and he saw golden stars that he would have had a normal Glascow Coma Scale score.”[176] In terms of the second element, “significant medically verified duration of post-traumatic amnesia”, Dr Teychenne says that “[e]verything had immediately gone black at the impact and while this did not specifically indicate amnesia, I would suspect that Mr Kamau was not totally cognisant of all that was happening during the period of time where everything went black and he saw golden stars.”[177] In terms of the final element in the Guidelines, that is “significant intracranial pathology on CT scan or MRI scan”, Dr Teychenne says that the criteria does “not encapsulate mild traumatic brain injuries which may occur as a result of concussion.”[178]
[176] ARD, p 36.
[177] ARD, p 36.
[178] ARD, p 37.
Notwithstanding this stated opinion, the Member said that she found Dr Teychenne did find that the first respondent fulfilled the criteria for a traumatic brain injury under the Guidelines[179] and found his “… evidence to be particularly compelling.”[180] This was based upon the doctor’s clinical examination of the first respondent, his diagnosis of “mild traumatic brain injury” and a review of some of the medical records. The Member at reasons [138] effectively summarised the position put by Dr Teychenne:
“Dr Teychenne diagnosed a concussive head injury, being a mild traumatic brain injury, with cognitive deficits, particularly a memory deficit. Dr Teychenne stated that, notwithstanding the absence of significant intracranial pathology on CT scan or MRI scan, mild traumatic brain injuries may occur as a result of concussion and be associated with cognitive defects. Dr Teychenne opined that various reported symptoms that the [first respondent] experienced following the incident, were consistent with a traumatic brain injury. Dr Teychenne considered that the [first respondent’s] history of, immediately following the incident, seeing blackness and stars, feeling like he would fall when he stood up and being weak and wobbly in the legs was a potential indicator of brain concussion (and also spinal concussion). Dr Teychenne also opined that the [first respondent’s] cognitive deficits identified by psychometric testing and also the [first respondent’s] forgetfulness some nine months after the incident was consistent with a mild traumatic brain injury. Dr Teychenne considered that Dr Breen’s clinical findings were consistent with an organic traumatic brain injury.”
[179] Reasons, [125].
[180] Reasons, [126].
This led to the Member making a specific finding that the first respondent suffered a “traumatic brain injury” at reasons [141] and this finding was reflected in the first order of the Certificate of Determination dated 14 July 2023.
There are a number of problems with the Member’s approach.
Firstly, this was a claim by the first respondent for lump sum permanent impairment compensation. Such an assessment is to be made by a Commission medical assessor “in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”[181] The Member was presented with two competing opinions, one made in conformity with cl 5.9 of the Guidelines (Dr Granot) which found that there was no assessable traumatic brain injury as none of the requisite criteria in cl 5.9 were satisfied. The Member found as much.
[181] Section 322(1) of the 1998 Act.
The second opinion, Dr Teychenne’s, was an opinion which cannot be said to be in conformity with the Guidelines as the first respondent satisfied none of the criteria in cl 5.9. In relation to the first criteria, the Glascow Coma Scale score, it is simply insufficient for Dr Teychenne to speculate about what the Glascow Coma Scale score would have been had one been undertaken. With respect to the second element involving medically verified post traumatic amnesia, it is insufficient for the doctor to merely ‘suspect’[182] anything about the first respondent’s state. This is not medical verification. And finally the third element requiring “significant intracranial pathology on CT scan or MRI” is simply dismissed by Dr Teychenne as not “encapsulating mild traumatic brain injuries.”[183] The reasoning by Dr Teychenne that the Guideline was satisfied, was wrong.
[182] ARD, p 36.
[183] ARD, p 37.
The Member was aware of the existence of the Guideline, it is set out at reasons [123]. The status of the Guidelines has been discussed in a number of cases as having the quality of delegated legislation. In Ballas v Department of Education (State of New South Wales)[184] Bell P and Payne JA (Emmett AJA agreeing) said:
“The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]–[28]; Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an [Approved Medical Specialist], as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an [Approved Medical Specialist]. There is an important difference between a characterisation exercise and an exercise of discretion.”[185]
[184] [2020] NSWCA 86 (Ballas).
[185] Ballas, [97].
Ballas was discussed and applied in Kempe v Complete Community Services Pty Ltd[186] where Griffiths AJA said:
“There was also broad agreement between the parties concerning the principles to apply in construing the Guidelines. Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA. They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an ‘instrument’ to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines (see Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363 at [61]–[63] per N Adams J). Thus considerations of text, context and purpose are important (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ, [37]–[40] per Gageler J). Appropriate allowance needs to be made for the form of the Guidelines, which is not the form of primary or secondary legislation.”
[186] [2022] NSWSC 1095, [30].
Whilst the approach in Ballas was described as perhaps putting the matter too highly,[187] given that the Guidelines are drafted by the State Insurance Regulatory Authority and not by Parliamentary Counsel, it has been followed in other cases such as Mills v Martin-Brower Australia Pty Ltd[188] and in Botha v Secretary, NSW Department of Customer Service.[189] Both Mills and Botha, both of which were decided after Heise, note that some allowance needs to be made on account of how the Guidelines come into existence. Tellingly, Adamson J noted in Mills that “ … a failure to apply the Guidelines is at least capable of constituting an error of law on the face of the record or a jurisdictional error.”[190]
[187] Heise v Employers Mutual Limited [2022] NSWCA 283 (Heise), [57], per Kirk JA.
[188] [2023] NSWSC 253 (Mills), [42], per Adamson J.
[189] [2024] NSWSC 781 (Botha), [21]–[22], per Stern JA.
[190] Mills, [42].
This is the problem with the Member’s approach. The Member has made a specific finding that the first respondent suffered a traumatic brain injury based upon Dr Teychenne’s assessment which is not undertaken in accordance with the Guidelines.
This finding has been referred to the medical assessor who is required to conduct an assessment in accordance with the Guidelines. These are words used in s 322(1) of the 1998 Act, namely that that the assessment “ … is to be made in accordance with Workers Compensation Guidelines ...”, so it is a mandatory requirement for the medical assessor.
The Member’s referral, based on an assessment which was not made in accordance with the Guidelines, therefore has the real prospect of causing confusion for the medical assessor, who is obliged to apply the Guidelines, and creating the prospect of an error of law or jurisdictional error as flagged by Adamson J in Mills. This situation produces a very real risk of the assessment process miscarrying.
Whilst the Member has a discretion to make this finding, provided it is not otherwise attended on by error, and the medical assessor is not obliged to follow it, the potential for this approach to adversely affect the medical assessment is apparent. The Member was in error in construing Dr Teychenne’s report as providing support for the finding of traumatic brain injury. This opinion was not produced in accordance with the Guidelines and the underlying assumptions for the opinion has not been established. And as I later find, Dr Teychenne’s opinion does not meet the requirements for expert evidence in the Commission. This error is heightened given the contest about the nature of the injury, what struck the first respondent, its size, weight and composition as well as how far it fell. I have discussed these matters (above), noting Dr Teychenne’s remarks[191] that these facts need to be confirmed. As I found above, in light of these remarks by Dr Teychenne at ARD p 37, his opinion can only be considered as provisional in nature. It certainly does not constitute an appropriate basis for the Member’s finding in this sub-ground.
[191] ARD, p 37.
Sub-Ground One has been established.
Sub-Ground Two – High cervical cord lesion
The Member dealt with the issues in this sub-ground at reasons [142]–[163]. The first issue dealt with was the fact that no dispute about any cervical spine injury had previously been notified by the first respondent. The Commission’s jurisdiction to hear and resolve matters depends upon the existence of a dispute.[192] The Member exercised her discretion under s 289A(4) of the 1998 Act to hear the claim and no issue has been taken with that aspect of the Member’s decision on appeal.
[192] Skates v Hills Industries Ltd [2021] NSWCA 142.
The assertion that the first respondent had suffered a high cervical cord lesion/injury was addressed by the Member at reasons [151]–[163]. In light of the problems I have identified above with respect to the facts of the incident itself, particularly the size, weight, and composition of the board as well as the distance that it fell, the finding made by the Member in this sub-ground cannot stand. The finding that the first respondent suffered a high cervical cord lesion in the subject incident[193] was based upon Dr Teychenne’s opinion, which has the difficulties I have expressed above with respect to the facts or assumptions underpinning that opinion not being established. Indeed as I have recounted above, the doctor himself has advised that these matters need to be clarified. As was said by Heydon JA in Makita (Australia) Pty Ltd v Sprowles,[194] “[t]he basal principle is that what an expert gives is an opinion based on facts.” Nothing in the approach to expert evidence in the Commission derogates from this proposition.
[193] Reasons, [163].
[194] [2001] NSWCA 305 (Makita), [64].
But in addition to these problems, the appellant has quite justifiably complained that Dr Teychenne’s opinion “did not explain how the cord lesion was causally related to the circumstances of the injury. Put simply he has not explain[ed] or identif[ied] the nature of the pathological change that caused by the mechanism of injury.”[195] The appellant complains that it was not explained why Dr Granot’s opinion was rejected.
[195] Appellant’s submissions 21 August 2023, [7.19].
I have set out above the requirements for expert evidence in the Commission, based upon r 73 and the authority of Edmonds. The question is whether the opinion of Dr Teychenne, with respect to his finding that the first respondent suffered a high cervical cord lesion, meets these requirements in order to provide a satisfactory basis for the Member to make findings.
For the following reasons, the answer to that question is no, the opinion does not provide a satisfactory basis for the Member’s findings with respect to the cervical injury as required by r 73 and the decided cases like Edmonds.
There was no issue that the CT scan and MRI scan of the first respondent’s neck revealed no pathology or abnormality, and Dr Teychenne noted as much.[196] Notwithstanding this situation, Dr Teychenne diagnosed that the first respondent suffered an “incomplete high cervical cord lesion”.[197] This was based upon his clinical examination of the first respondent.
[196] ARD, pp 23–24.
[197] ARD, pp 28–29.
In his second report of 17 November 2022,[198] Dr Teychenne, in answer to Question 3, discusses his diagnosis of the cervical injury that he found on examination.[199] In particular he says as follows:
“The diagnosis of an incomplete cervical cord injury in my experience in most patients is a clinical diagnosis. In a series of 47 patients with clinical incomplete cervical cord lesions, only two had T2 hyperintensity; however, 20 of the patients had disc bulging causing some compromise of the central spinal canal. The remaining patients did not have any macroscopic evidence of injury to the spinal cord or compromise of the central spinal cord. In my experience, compromise of the spinal canal secondary to disc osteophytes or disc bulging can make the patient more susceptible to an acute spinal cord injury but acute spinal cord injuries can also occur in the presence of what appears to be a normal central canal particularly if the patient has had a significant compressive or flexion injury to the head and neck as described by Mr Kamau.
…
In my experience, patients who sustain cervical spinal cord injuries also have marked imbalance and myelopathic weakness which was quite consistent with the examination of Mr Kamau. At the bottom of the squat, his legs gave way, they did not support him and his legs collapsed. When testing balance, his legs would collapse to either side and he had quite significant bilateral imbalance. I found that imbalance combined with upper motor neuron weakness, intrinsic hand muscle weakness and myelopathic weakness is quite classic of a central incomplete cervical cord lesion. Central incomplete cervical cord lesions are the most common form of spinal cord injury and, in my experience, MRI scans may not pick up evidence of microscopic spinal cord damage. This is most probably because the damage is macroscopic, i.e., axonal demyelination and swelling within the corticospinal tracts as the predominant lesion. The lesion is microscopic and in my experience not commonly picked up on macroscopic MRI scan of the spinal cord. I found considerable clinical evidence of a spinal cord injury in contrast to the examination by Dr Granot.”[200]
[198] ARD, p 34.
[199] ARD, pp 38–41.
[200] ARD, p 40.
The first paragraph I have set out from Dr Teychenne’s opinion is simply incapable of rational assessment. He refers to 47 patients with “clinical incomplete cervical cord lesions” and then attempts, in a very general way, to relate their situation to that of the first respondent. The mechanism of how these 47 were said to be injured and suffered the asserted injury is not described, and it is not explained how the situation with these 47 patients is comparable (and thus to be of utility ) to that of the first respondent. The doctor refers to this group as being a “series of 47 patients”. There was no explanation as to whether they were his patients, or whether they were a part of a study or research project as no paper is referenced or footnoted. Any explanation as to the origin of the knowledge about this group on Dr Teychenne’s part is completely lacking. The capacity to test this aspect of the doctor’s opinion is therefore non-existent.
This group of 47 patients is then divided into 20 individuals who had disc bulging, presumably identified by some form of scan but it is not said how this was ascertained, and the remaining who did not have any macroscopic evidence of injury. Presumably the first respondent sits within this “remaining” group, given that he has no such positive findings upon either CT or MRI scans. The doctor then describes the view that he has of this situation as flowing from “my experience”. The inference is, and I put it no higher than that, that the situation of the “remaining” patients and that of the first respondent is identical. But none of this is explained in any way which reveals any appropriate path of reasoning. No attempt has been made to relate the mechanism of the injuries suffered or the clinical presentation of this “remaining” group to the first respondent. It is simply not possible to draw any appropriate conclusions from this reasoning which has all the hallmarks of a series of ipse dixits. The manner in which these aspects of the opinion is presented reduces the ability of the Member to understand how the opinion being presented was arrived at.
Based upon an assessment of Dr Teychenne’s opinion and its compliance with the requirements flowing from r 73 and cases like Edmonds, the Member was in error in terms of her reliance upon Dr Teychenne’s opinion to substantiate the finding made with respect to the assertion that the first respondent suffered a high cervical cord lesion. The opinion simply is not explained, in a way which satisfies the requirements for the evidence to be a satisfactory basis upon which to make findings. It seems to me from a fair reading of the Member’s reasons that her approach was to simply accept Dr Teychenne’s opinion.
Then there is the matter of Dr Granot’s opinion. The Member needed to engage with the expert evidence, namely that of Dr Teychenne and Dr Granot, and say why, in terms, one was preferred over the other. This was not done.
Dr Granot’s report contained extracts from Mr Moran’s statement. As described above, Mr Moran’s statement was not admitted by the Member but the extracts contained in Dr Granot’s report were before the Member. The factual conflict between the histories relied upon by Dr Teychenne and Dr Granot was before the Member, indeed Dr Teychenne quite properly raised this issue fairly and squarely in his second report. The Member therefore had to grapple with this issue regarding the different histories given to the doctors as it was critical to the medical opinions of each doctor. There was no attempt to resolve the differing histories in the two main competing medical opinions of Drs Teychenne and Granot. Notwithstanding the presence of Mr Moran’s version of the incident in Dr Granot’s report, the Member made no attempt to deal with those passages or state why no weight was given to Dr Granot’s opinion.
For the reasons expressed above, the Member was in error in construing and giving weight to Dr Teychenne’s opinion to substantiate the finding that the first respondent suffered a high cord cervical lesion.
Sub-Ground Two is established.
DECISION
This appeal has succeeded in full, with all grounds of appeal being upheld. As is evident, there are evidentiary issues which will require attention on remitter before the matter is heard, notably the dispute about the size, weight and composition of the board which undoubtedly struck the first respondent as well as the distance that it fell. Oral evidence may well be required to deal with and resolve these issues.
Further, it is apparent that the expert opinion relied upon by both parties is heavily dependent upon the facts to be established. I have also expressed concerns about the opinion of Dr Teychenne, upon whom the first respondent’s case seems to place heavy reliance. I make these remarks as an aide to the Member who is hearing this matter on remitter, as this case may require some thoughtful case management before it is re-heard.
The Certificate of Determination dated 14 July 2023 is revoked.
The Matter is remitted to a different member for re-determination.
Judge Phillips
PRESIDENT
20 August 2024
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