Zgouras v Australian Associated Motor Insurers Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Zgouras v Australian Associated Motor Insurers Limited [2022] NSWPICPD 17
APPELLANT:	Katherine Zgouras
RESPONDENT:	Australian Associated Motor Insurers Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-7495/20
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	12 May 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 18 May 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Rule 78 of the Personal Injury Commission Rules 2021 – adequacy of reasons and approach to review of reasons - Roncevich v Repatriation Commission [2005] HCA 40 considered – rules of evidence excluded by statute – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Jobson, counsel
Milicevic Solicitors
Respondent:
Mr M Strachan, solicitor
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms E Beilby
DATE OF MEMBER’S DECISION:	18 May 2021

INTRODUCTION AND BACKGROUND

The appellant, Ms Katherine Zgouras, was employed by the respondent, Australian Associated Motor Insurers Limited, as a call centre operator between 2002 and 2007. Her sedentary duties required her to sit at a desk, take calls and complete data entry on a computer in relation to customers looking for car insurance. She sustained an injury to her cervical spine in 2003 when in the course of these duties for prolonged periods. The appellant has previously brought proceedings in the former Workers Compensation Commission which resulted in an agreement between the appellant and the respondent with respect to 33% whole person impairment in relation to the appellant’s cervical spine as a result of the nature and conditions of the appellant’s employment.
The current proceedings were filed in the Personal Injury Commission’s predecessor organisation, the Workers Compensation Commission. The Personal Injury Commission commenced on 1 March 2021, with the hearing in this matter taking place on 16 March 2021. As a result of the establishment of the Personal Injury Commission, this matter was heard in the Workers Compensation Division of the Personal Injury Commission pursuant to Sch 1, Pt 2, Div 4A of the Personal Injury Commission Act 2020 (the 2020 Act).
In those proceedings, the appellant pursued a claim with respect to asserted injuries to her lumbar spine and thoracic spine arising from the nature and conditions of her employment with the respondent, and sought the referral of these injuries to an Approved Medical Specialist (AMS) for the determination of whole person impairment. The previous designation of AMS changed by virtue of the 2020 Act to that of Medical Assessor. I will therefore refer to the application for referral as being to a Medical Assessor, rather than the prior designation of AMS. There was an additional claim which was not contested with respect to the cervical spine.
As is frequently the case in workers compensation claims, the contest in this matter required the appellant to prove that the asserted symptoms in her lumbar and thoracic spine were causally related to the nature and conditions of her employment with the respondent. In the Certificate of Determination dated 18 May 2021, the Member found that the thoracic symptoms were not related to the appellant’s employment and entered an award in favour of the respondent with respect to that matter, namely the thoracic spine, and as a consequence declined to refer the matter to a Medical Assessor as the claim involving the lumbar spine only (which had been proven) did not meet the relevant threshold.
It is from the decision in respect of the thoracic spine injury, that the appellant appeals.
Separately to this appeal, the appellant sought a reconsideration in respect of the Member’s decision not to refer the lumbar spine injury and the existing cervical spine injury to a Medical Assessor. The Member accepted the reconsideration application, finding that both the cervical and lumbar spine injuries were in fact of the same nature (that is, due to the nature and conditions of employment) and thus impairment in respect of these injuries could in fact be aggregated and referred to a Medical Assessor. An order was made referring the lumbar spine and cervical spine injuries to a Medical Assessor, in a Certificate of Determination dated 11 October 2021.
The reconsideration did not address the issue on appeal, which is limited to the discrete finding by the Member in respect of the thoracic spine injury determined on 18 May 2021.

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.

TRANSITIONAL MATTERS

As noted above, this matter was commenced in the former Workers Compensation Commission but was heard after that Commission was abolished.[1] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. For the purposes of this decision, I will refer to the decision maker as the Member.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 of the 2020 Act.
[2] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The appellant’s evidence

In the Application to Resolve a Dispute (ARD) the appellant submitted five statements. These are dated 8 December 2003,[3] 28 April 2004,[4] 11 April 2010,[5] 18 August 2010[6] and 28 September 2020.[7]
[3] ARD, p 1.
[4] ARD, p 8.
[5] ARD, p 12.
[6] ARD, p 25.
[7] ARD, p 27.
These statements detail the appellant’s work history, and in particular her duties with the respondent as well as describing the circumstances of the injuries that she suffered whilst working for the respondent. In particular she describes the incident on 26 June 2003 where she suffered injury to her cervical spine which ultimately led to surgery in 2004. The appellant also confirms that she had never injured her neck prior to the subject incident with the respondent.[8]
[8] ARD, p 7, [51].
The appellant confirms that the operation on her neck was carried out at the Sydney Private Hospital by Dr Collette (sic, Dr McGee-Collett) on 23 March 2004.[9]
[9] ARD, p 9, [21].
In the appellant’s statement of 28 April 2004 she states at [24] the following:
“At this time I still have a pain in my neck. There is a constant pain in my neck left shoulder and my upper back. I am controlling this pain with painkillers at the moment.”[10]
[10] ARD, p 10.
In the appellant’s statement of 11 April 2010, she confirms she had no pre-existing neck, mid back, upper back, lower back, limb, arm, leg, hand or shoulder pain prior to her commencement at AAMI.[11]
[11] ARD, p 12.
In the appellant’s various statements, she recounts the history of her symptoms and medical treatment from 2003 onwards as well as detailing her efforts to continue work with the respondent and other employers since her injury.
In her statement of 18 August 2010, the appellant says as follows:
“Prior to my injury on 26th June, 2003, I want to reconfirm I did not have any injury or any symptoms in my neck, arms or any area of my back (apart from monthly period pain) and do not recall telling Dr Maniam or any treating doctors otherwise.”[12]
[12] ARD, p 26.
In the appellant’s final statement of 28 September 2020 she recounts as follows:
“Since the injury:
a. I continue to feel severe pain radiating from my cervical spine into my arms, wrists, fingers, hands and pain in the thoracic spine, lumbar spine, both legs, buttocks and toes.
…
f. My thoracic spine is constantly painful, stiff and numb and I find it quite painful to carry heavy loads.”[13]
[13] ARD, pp 31–32.
In the appellant’s statement of 28 September 2020 at [3], she describes in eight dot points the physical duties involved in her work.[14] The appellant then says this:
“In about April 2003 I was experiencing minor aches and pains in my neck and back for which I attributed to the sedentary nature of the job and prolonged periods of the posture adopted in order to perform the required duties. I did not think much of them as they were just minor and were relieved by rest and on occasions a massage or physiotherapy.”[15]
[14] ARD, p 27.
[15] ARD, p 28, [4].
These are the only passages in the appellant’s statements that advert to problems in her thoracic spine or upper back area.

The medical evidence

The appellant relies primarily on the reports of Dr Vijay Maniam, orthopaedic surgeon, who treated her from July 2003[16] and assessed the whole person impairment upon which the appellant has made her claims for lump sum compensation.
[16] Reply, p 187.
Initially, Dr Maniam examined the appellant in respect of her cervical spine symptoms. This then progressed into complaints of symptoms radiating into her upper limbs, lower limbs and other parts of the spine. The first mention of thoracic spine problems is in a report of 20 September 2004.[17] In this report, Dr Maniam referred to a “recent MRI” which indicated an existing thoracic syringohydromyelia (syrinx) between T3 and T8 that did “not show any deterioration”. Specifically, Dr Maniam commented that “the syrinx do [sic] not appear to be deteriorating. In the 2 MRI’s that have been obtained in 12 month period [sic] the changes seem to be similar”. The doctor does not comment on causation of the syrinx and recommends a neurological opinion.
[17] ARD, p 367.
In a report of 20 June 2005 requested by the appellant’s then legal representatives, Dr Maniam took a history of the gradual onset of injury to the cervical spine as a result of employment. Whilst there is a reference to an MRI of 9 August 2003 and 24 August 2004 revealing thoracic syringohydromyelia, Dr Maniam is silent as to a thoracic injury or associated symptomatology. In fact, the doctor asserts “there are no other injuries…” when commenting on the work-related cervical spine injury. The doctor assesses impairment to the cervical spine, but not the thoracic spine.[18]
[18] ARD, p 370.
Some months later, on 6 September 2005, Dr Maniam provided a report to the respondent’s insurer to addresses a specific request in regard to the diagnosable work injury.[19] The doctor’s diagnosis is of a cervical spine injury, and stipulates:
“Although there were other complaints, I am not aware that there are any other injuries relating to her work activity.
There are no secondary diagnoses … The only problem that I am aware of is that relating to the cervical spine”.[20]
[19] Reply, p 136.
[20] Reply, p 136.
In a report of 17 July 2008 addressed to the appellant’s legal representatives, the doctor is tasked with specifically answering questions as to the appellant’s history of injury, diagnosis, causation and treatment. The doctor refers only to the cervical spine injury, gradually deteriorating over time due to the nature and conditions of employment from 2003. There is no mention of the thoracic spine.[21]
[21] ARD, p 380.
It is only in a report of 13 June 2019 wherein Dr Maniam makes a diagnosis in respect of the thoracic spine.[22] In addition to a cervical spine diagnosis, Dr Maniam refers to a recent thoracic spine MRI report displaying the syrinx from T3 to T9, and comments that the appellant’s neurologist “attributed [the syrinx] to trauma and responsible (sic) for giving the symptoms in the lower limbs”. It is on this basis Dr Maniam thus proceeds to include an assessment of 5% whole person impairment to the “thoracic spine (traumatic syrinx)”. Interestingly, in considering the neurological opinions in evidence, it seems that the neurological opinion Dr Maniam would be referring to pre-dates his assessment by some 10 years.
[22] ARD, p 389.
In Dr Maniam’s subsequent 2020 reports, the focus is primarily on the lumbar spine. In fact, in a report to the appellant’s solicitor dated 20 April 2020, the doctor reports that the only injury in addition to that of the cervical spine is the lumbar spine.[23] In a further report dated 26 May 2020, the doctor refers to radiology of the thoracic spine, namely an MRI of 16 February 2016 revealing a “small central syrinx … This has remained stable in ten years” (emphasis added) and an MRI of 11 June 2018 which revealed “a small thoracic syrinx from T3 to T9. This has remained stable in two years” (emphasis added). The report is silent on the origins of the syrinx.[24]
[23] Reply, p 165.
[24] ARD, p 417.
Overall, Dr Maniam appears to have premised his opinions in respect of the thoracic spine with reference to findings in the radiology (MRI reports of 9 August 2003,[25] 8 August 2006,[26] 16 February 2016[27] and 11 June 2018[28]) and other neurological opinions. Thus, a close analysis of the neurological opinions is required.
[25] Reply, p 302.
[26] Reply, p 307.
[27] Reply, p 298.
[28] Reply, p 318.
Dr Martin McGee-Collett, neurosurgeon, commenced treating the appellant on 14 November 2003 for cervical spine and upper limb pain, with no mention of thoracic complaints.[29] Dr McGee-Collett diagnosed the appellant with left brachialgia and recommended a cervical laminoforaminotomy and discectomy which took place on 23 March 2004.[30] There is no mention of the thoracic spine, until a hand-written note to Dr John Ditton of 6 September 2004, wherein the doctor thanks Dr Ditton for reviewing the appellant’s brachialgia, and significantly writes:
“…She has an idiopathic syrinx as well which I think is unrelated to her symptoms” (emphasis added).[31]
[29] ARD, p 349.
[30] ARD, pp 350–356.
[31] ARD, p 357.
In a report of 14 September 2004, Dr McGee-Collett does not believe the appellant’s symptoms arise from the syrinx, although concedes it is “remotely possible” and recommends a repeat MRI in 12–24 months.[32]
[32] ARD, p 358.
Dr Dan Milder, neurosurgeon, then commenced treating the appellant on 24 September 2004. In a report of this date, the doctor focused primarily on the cervical spine injury and referred to the thoracic syrinx as an “incidental finding”.[33] Dr Milder’s subsequent consultations are in relation to the cervical spine, until 31 July 2006, when the doctor opines that the appellant’s complaints of interscapular pain are possibly caused by the “extension of a previously detected thoracic syrinx …” (emphasis added). [34] Dr Milder orders an MRI, and following review of same, confirms in a report of 22 August 2006 the presence of the syrinx and considers that the appellant’s lower limb numbness “may reflect damage to spino-thalamic fibres affected by a syrinx within the thoracic spinal cord” (emphasis added); but “[n]evertheless, a presumed post-traumatic thoracic syrinx has not changed in size” (emphasis added). Simply put, the MRI failed to affirm the doctor’s initial suspicion that symptomatology was caused by an ‘extension’ to the syrinx and queries only the possible damage the syrinx may cause to fibres in the spine.[35]
[33] Reply, p 216.
[34] ARD, p 452.
[35] ARD, p 453.
In a subsequent report of 19 October 2009, Dr Milder is specifically tasked with advising the appellant’s legal representatives in respect of her work-related injuries, by way of commentary on “attributability”. Dr Milder responds only that the appellant suffered cervical spine pain and finger paraesthesia as a result of her duties.[36] There only reference to the thoracic spine is the likely “incidental finding” of the syrinx. No further reference is made in Dr Milder’s consultations throughout 2010 and 2011.[37]
[36] ARD, p 455.
[37] ARD, pp 459–462.
I am minded that according to the Member, it is Dr Milder’s opinion upon which Dr Maniam bases his opinion for an assessment of whole person impairment to the thoracic spine.
Dr Grahame Mahony, neurosurgeon, was qualified to provide a medico-legal report to the appellant’s legal representatives on 21 September 2004.[38] The doctor opines that the appellant suffers from symptoms referrable to a cervical strain in association with early degenerative changes, and discogenic lesions with nerve root irritation. The doctor makes a consequential diagnosis of a thoracic strain “associated with altered spinal movement being indirectly related to her neck condition”. The syrinx is not diagnosed.[39]
[38] ARD, p 447.
[39] ARD, p 449.
There is a medico-legal opinion of Dr Michael Davies dated 1 October 2004 which takes a history of injury to the cervical spine and stiffness in the mid-back.[40] The Member comments this report was not being relied on, but makes note of Dr Davies’ opinion that the “pre-existing thoracic syrinx … is unrelated to employment”.[41] Of interest, Dr McGee-Collett reports to the insurer on 8 September 2005 that Dr Davies’ comments are “perfectly reasonable”; although, it is not clear what commentary Dr McGee-Collett is referring to.[42] Similarly to Dr Davies, Dr George Hession, occupational physician, reported on 21 March 2006 that the thoracic syrinx was “congenital”, and provided a diagnosis of “degenerative cervical spondylosis and cervico-thoracic syringohydromyelia” which may be causing numbness, although her “persisting symptoms…are not attributable to the effects of injury on 26 June 2003”.[43] A report of Dr Peter Isbister, orthopaedic surgeon, of 29 July 2004 is silent as to the thoracic spine other than an incidental finding of the syrinx in a 2003 MRI, referring only to the cervical spine injury being caused by the appellant’s employment.[44]
[40] Reply, p 104.
[41] Reply, p 111.
[42] Reply, p 197.
[43] Reply, p 119.
[44] Reply, p 122.
Clinical records from the appellant’s general practitioner, Dr Peter Papadakis, reveal complaints mainly to the cervical spine, with the thoracic spine appearing in March 2005;[45] although, physiotherapy records of EB Physiotherapy indicate that the appellant received treatment to the neck, upper back and lower back throughout 2003.[46]
[45] ARD, p 170.
[46] Reply, pp 270–277 and ARD, pp 463–470.
Dr Chris Oates, occupational physician, supplied an injury management report to the insurer on 25 April 2005.[47] A history is provided that the appellant was initially diagnosed with a musculo-ligamentous strain to the neck and thoracic spine. This potentially appears to be reference to a report of Dr S Chowdhury, general practitioner, who provided a note on 4 July 2003 advising of treatment for muscular and ligamentous strain to the cervical and thoraco-lumbar spine.[48]
[47] ARD, p 511.
[48] Reply, p 103.
On 23 March 2005, Dr Peter Spittaler, consultant neurosurgeon, reported to the respondent’s insurer that the appellant’s primary diagnosis was a cervical disc injury, with her complaints of mild lower back pain not being work-related.[49] A report of Dr Lew Pierides, specialist in occupational medicine, dated 9 September 2005 refers to complaints of neck and back pain but that “there was no history of injury to her back”.[50]
[49] Reply, p 260.
[50] Reply, p 129.

On 13 March 2006,[51] Dr J Matheson, consultant neurosurgeon, reported only on cervical symptoms, similarly to pain management specialist, Dr Anica Vasic, who provided a detailed report on 7 June 2006 that was silent as to the thoracic spine.[52]
[51] Reply, p 188.
[52] ARD, p 477.
Dr Vijay Panjratan, orthopaedic surgeon, was qualified by the respondent to examine the appellant. The doctor prepared two medico-legal reports dated 2 October 2020[53] and 28 October 2020.[54]
[53] Reply, p 7.
[54] Reply, p 23.
The doctor’s initial report outlines a history of injury to the cervical spine as a result of the appellant’s employment. Upon examination, Dr Panjratan queries the appellant’s thoracic spine complaints, to which the appellant advised they had been present since her cervical issues. Following a review of the diagnostic material and treating reports, Dr Panjratan diagnosed thoracic spondylosis of gradual onset unrelated to employment and unrelated to the cervical spine injury, disagreeing with the opinion of Dr Maniam. Dr Panjratan’s supplementary report responds to the respondent’s specific questioning in respect of the thoracic spine and syrinx. The doctor opines that the thoracic syrinx is a progressive disorder causing paraesthesia in the upper and lower extremities, unrelated to the nature and conditions of the appellant’s employment.

THE MEMBER’S REASONS

The Member has determined that the appellant did not suffer an injury to the thoracic spine arising out of, or in the course of her employment.[55] In coming to this decision, the Member was firstly not persuaded on the appellant’s medical case as to the cause of any thoracic symptomatology; and secondly, should symptomatology have been caused by the syrinx, the Member was not persuaded that the syrinx itself arose from the nature and conditions of the appellant’s employment.
[55] Reasons, [98].
Following consideration of the numerous medical and treating opinions before her, the Member referred specifically to the opinions of Dr McGee-Collett, Dr Maniam, Dr Milder and Dr Panjratan. In the Member’s view, Dr McGee-Collett’s opinion represented only a mere possibility that the thoracic syrinx was causing symptomatology, though unlikely at the time.[56] In respect of Dr Maniam, the Member noted the doctor had treated the appellant for a significant period, but crucially did not identify thoracic problems early on. In saying this, the Member did accept that the appellant was focused on cervical symptomatology, noting reference to thoracic complaints in the general practitioner’s records during that period.[57]
[56] Reasons, [89]–[90].
[57] Reasons, [91]–[92].
Notwithstanding, the Member was not persuaded by Dr Maniam’s opinion, primarily due to Dr Maniam’s apparent reliance on the opinions of Dr Milder in diagnosing the thoracic spine with a syrinx, for the purpose of inclusion in the assessment of impairment. In the Member’s view, Dr Milder did not provide a basis on which Dr Maniam could form an opinion that the syrinx actually arose from the nature and conditions of employment. In fact, the Member opined that this opinion was not afforded by any neurologist in evidence. Accordingly, the Member found that Dr Maniam’s opinion was simply an assertion of the existence of a syrinx with no meaningful explanation as to how it was caused or aggravated by employment, as required for a finding of injury for an entitlement to workers compensation. In the Member’s view, Dr Panjratan had on the other hand, provided a clear opinion in relation to the syrinx being unrelated to employment and its cause of thoracic symptomatology.[58]
[58] Reasons, [93]–[97].
Ultimately, the Member concluded that the appellant’s medical failed to deal with, in any substance, the appellant’s thoracic symptomatology apart from the opinion of Dr McGee-Collett which provided little assistance, in circumstances where the Member was being asked to consider it some 15 years after the appellant had left the respondent’s employ.[59] The Member was however satisfied that the appellant had sustained a lumbar spine injury, and made a finding of injury for the appellant in that regard.
[59] Reasons, [97].
The Certificate of Determination issued on 18 May 2021 records:
“The Commission determines:
1. The [appellant] suffered an injury to her lumbar spine arising out of the nature and conditions of employment with the respondent.
2. Award for the respondent [in] respect of the claim of injury to the thoracic spine.”

GROUNDS OF APPEAL

The appellant relies upon the following grounds of appeal:
Ground One: The Member erred in law in finding that the appellant did not suffer an injury to her thoracic spine arising out of or in the course of her employment.
Ground Two: The Member failed to give any or any adequate reasoning for determination.
Ground Three: The Member failed to take into account relevant evidence insofar as the thoracic spine injury is concerned.

LEGISLATION

The Personal Injury Commission Rules 2021 (the Rules) at Pt 8, r 78 provide:
“78    Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352(5) of the 1998 Act. This provision provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The nature of an appeal pursuant to s 352 has been the subject of comment in a number of matters such as Raulston v Toll Pty Ltd[60] where Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[61] to the nature of the appeal process pursuant to s 352 of the 1998 Act. In particular I rely upon paragraph [19] of Raulston, without repeating it.
[60] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[61] (1966) 39 ALJR 505.
It is necessary to briefly describe the nature of the appeal which is being pursued by the appellant in this matter. As is clear from a consideration of the section and the cases that I have referred to, the identification and correction of error is required before an appeal can succeed.

SUBMISSIONS

I will deal with the detail of what is submitted with respect to each of the three appeal points in the discussion section below.

DISCUSSION

As to Ground One

The appellant in Ground One alleges that the Member has erred in law by posing and answering the wrong question. It is submitted that the question posed by the Member was to the following effect:
“Was the syrinx caused by the [appellant’s] employment?”[62]
[62] Appellant’s submissions, Ground One, [16].
It is asserted that this was the only question asked by the Member. The appellant asserts that the question that had to be answered was as follows:
“Was the thoracic injury and pain caused by the [appellant’s] employment?”[63]
[63] Appellant’s submissions, Ground One, [18].
This, the appellant contends, constitutes a constructive failure to exercise jurisdiction, relying upon the remarks of Brereton J in Norrington v QBE Insurance (Australia) Ltd.[64]
[64] [2021] NSWSC 548, [30].
A subsidiary argument is advanced that the Member gave undue weight to the diagnosis of the thoracic syrinx and failed to take into account the unchallenged evidence of the appellant and the clinical notes of complaint regarding the thoracic spine.[65] Earlier in the submission, the appellant recounts that she had not been cross-examined on any of her statements and in particular refers to her statement of 28 September 2020 in which she is said to have “confirmed her view of the injury to the thoracic spine”.[66] In this vein, the appellant argues as follows:
“The [appellant], in the ARD, alleges that the thoracic injury was a result of the nature and condition[s] of the work that she carried out with the respondent.
The ARD does not allege that it caused nor aggravated the syrinx however the member fails to refer to any of the statements made by the [appellant] that were untested in cross-examination.”[67]
[65] Appellant’s submissions, Ground One, [24].
[66] Appellant’s submissions, Ground One, [5].
[67] Appellant’s submissions, Ground One, [12]–[13].
The respondent asserts that these submissions are misconceived, relying upon the appellant’s response to a request for further and better particulars which it provided on 2 September 2020 which referred to, inter alia, the syrinx in the appellant’s thoracic spine.[68] The respondent asserts that whilst the evidence before the Member contained numerous complaints and records of thoracic pain, the only evidence going to causation of the symptomatology in the appellant’s thoracic spine came from Dr Maniam, who attributed it to the traumatic syrinx.[69]
[68] Respondent’s submissions, [2.10].
[69] Report of Dr Maniam, 13 June 2019, ARD, p 393.
At the hearing the appellant framed the case in the following manner:
“The question is in relation to the neck, low back and the thoracic. The [appellant] claims that as a result of the nature and conditions of the employment the [appellant] has sustained an injury to the thoracic and the lumbar spine and obviously the neck – the injury to the neck is not in issue.” [70]
[70] Transcript of proceedings 16 March 2021 (T) 2.6–12.
This is broadly consistent with the appellant’s letter of 2 September 2020 which answered the respondent’s request for further and better particulars.[71] I say broadly because it is clear that the appellant in that correspondence alleges that “injury to the thoracic spine results from the nature and conditions of the worker’s employment” but then in answer to question 3 refers to reports of Drs Milder and Maniam which refer to the thoracic syrinx which is said to be “traumatic”. Clearly from a review of the medical records, the appellant complained of pain emanating from her thoracic spine. The question though which the Member was called upon to decide was whether or not this was causally related to the asserted injury. The medical evidence was that the syrinx was present in the appellant’s thoracic region.
[71] ARD, pp 77–79.
I do not agree with the appellant’s submission that the Member limited herself to asking only one question, namely “was the syrinx caused by the [appellant’s] employment?”[72] It is evident from a review of the Member’s consideration of the medical evidence[73] that close attention was paid by the Member to all complaints pertaining to the appellant’s thoracic spine. Clearly, the appellant in her statements has recounted symptomatology arising from that area but on the appellant’s own medical case, the Member could not find support for any causal relationship to her work, whether this was injury to the thoracic spine caused by the nature and conditions of her employment or whether the thoracic syrinx, which was said to be traumatic, was work related.[74] The syrinx and its possible impact upon the appellant’s symptoms, thus making it a possible cause of the appellant’s pain and disability, had to be considered by the Member. It was a part of the medical opinion pertaining to the precise area of the appellant’s body that was under consideration. Tellingly, her treating specialist Dr Maniam considered the syrinx to be traumatic and then proceeded to include it in the determination of whole person impairment.[75] There is no error in the Member’s approach by considering the possible impact of the thoracic syrinx upon the appellant’s case. The problem for the appellant though is that Dr Maniam bases his opinion regarding the traumatic syrinx upon the neurologist’s report. Dr Milder in his report of 22 August 2006[76] refers to a “presumed post-traumatic thoracic syrinx” without positing an opinion as to whether or not this was work related. In short, Dr Milder provides no opinion as to the cause of the syrinx, however Dr Maniam then attributes this traumatic syrinx apparently to the nature and conditions of the appellant’s employment and includes it in his determination of whole person impairment.[77] There is no explanation by Dr Maniam of his path of reasoning in reaching this conclusion. Additionally, the syrinx is described by Dr Milder and Dr Maniam in the terms I have described above, but neither describes or attributes any particular traumatic event as constituting the cause of the traumatic syrinx. This is somewhat unsatisfactory simply because the origins of the syrinx, whether it was a single traumatic event or trauma due to the nature and conditions of the appellant’s employment, is simply not reasoned or otherwise explained by the doctors.
[72] Appellant’s submissions, Ground One, [16].
[73] Reasons [30]–[86].
[74] Reasons, [98].
[75] ARD, p 393.
[76] ARD, p 453.
[77] ARD, p 393.
Given this was the state of the evidence in the appellant’s case, it was not an error for the Member to attempt to ascertain the question of causation of the appellant’s thoracic symptoms. The state of this evidence, the Member found, was insufficient[78] and there was no error in that approach.
[78] Reasons, [96].
Much has been made by the appellant of the fact that her statements were unchallenged and that she was not cross-examined. It is true that the appellant was not cross-examined. Five statements dated 8 December 2003, 28 April 2004, 11 April 2010, 18 August 2010 and 28 September 2020 were included in the appellant’s documents before the Member. In the statement of 28 September 2020, the appellant describes “pain in the thoracic spine”[79] and further the appellant states that her thoracic spine is constantly painful.[80] These statements however are of little assistance in considering the question of causation. The fact that these statements were not challenged does not assist the appellant’s argument. The rules of evidence do not apply in proceedings before the Commission. Indeed they have been excluded by statute.[81]
[79] ARD, p 31.
[80] ARD, p 32.
[81] Section 43(2) of the 2020 Act.
The inference arising from the appellant’s submissions regarding her statements and the records in the clinical notes recording her complaints of pain in her thoracic spine is an attempt to import into this jurisdiction, the consequences that would usually arise when the rules of evidence do apply to a document which is admitted without objection or evidence which was not challenged in cross-examination. In Onesteel Reinforcing Pty Ltd v Sutton,[82] Allsop P warned of the danger of attempting to reintroduce the rules of evidence where they had been excluded by statute. Properly construed, the appellant’s statements and the medical records had to be considered by the Member and accorded such weight as was necessary and appropriate for the material concerned. At its highest, the appellant points to evidence such as the appellant’s statement and various reports, for example Dr Chowdhury dated 4 July 2003[83] or physiotherapist Alison Figg dated 21 July 2004[84] and invites the member to draw an inference that the complaints of pain in the thoracic spine were work related. The member was not satisfied having regard to the state of the evidence, and in particular the expert medical opinion. There was no error in this approach. Indeed the approach taken by the Member was appropriate given the inadequacy of the medical opinion on the question of causation.
[82] [2012] NSWCA 282.
[83] ARD, p 113.
[84] ARD, p 472.
I do not accept that the Member only addressed the single question regarding the syrinx as alleged by the appellant. The Member’s enquiry was wider than the syrinx and encompassed examination of the evidence to ascertain whether or not the causal relationship between the appellant’s complaints of thoracic pain could be linked to the nature and conditions of her employment. This was a proper approach, no error has been identified and as a result Ground One must fail.

As to Ground Two

The appellant asserts that the Member has failed to give any or any adequate reasons. The appellant points to Pt 8, r 78 of the Rules and relies upon the authorities of Kooragang Cement Pty Ltd v Bates[85] and NSW Police Force v Newby.[86]
[85] (1994) 35 NSWLR 452 (Kooragang).
[86] [2009] NSWWCCPD 75 (Newby).
The appellant’s major complaint can be found at [5] of her submissions where the following is maintained:
“It is not enough to set out opinions without the [M]ember providing reasons in such a way as to understand the processes and methodology that the [M]ember used in coming to those opinions.”[87]
[87] Appellant’s submissions, Ground Two, p 4, [5].
Before turning to the Member’s decision, in order to ascertain whether or not this appeal ground can be made good, it is necessary to set out the principles to be applied to an appeal ground which alleges that the Member failed to give any or any adequate reasoning in the delivery of the decision.
The starting point is r 78 of the Rules (set out at [49] above). This rule requires that a “brief statement of the appropriate decision-maker’s reasons” address the three matters referred to in r 78(2) of the Rules. Rule 78(3) then provides further direction to the decision-maker as to how the reasons are to be stated sufficiently, namely, that each party is made aware of the decision-maker’s view of their case. This rule is expressly stated as not limiting the decision-maker’s task as specified in r 78(2).
Arising from the following cases, it can be seen that a member’s requirement to give reasons and their review on appeal is guided by the following principles:
(a) Compliance with the requirements of r 78 of the Rules.
(b)    The High Court in Wingfoot Australia Partners Pty Ltd v Kocak[88] stated that:
“The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.
(c)    Reasons must be read as a whole.[89]
(d)    Administrative decisions, such as those made by tribunal members, ought not be minutely examined by “over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”[90] After Wu Shan Liang, this matter was returned to by the Court in Roncevich v Repatriation Commission[91] where Kirby J said as follows:
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
(e)    In Newby, the then President of the Workers Compensation Commission, Keating DCJ, set out the principles pertaining to inadequacy of reasons. The then President stated that the inadequacy of reasons must disclose “that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application”.[92] Further, his Honour said that “[t]he standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker”.[93]
[88] [2013] HCA 43 (Wingfoot), [55].
[89] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
[90] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (Wu Shan Liang), [31].
[91] [2005] HCA 40 (Roncevich), [64], footnotes omitted.
[92] Newby, [149].
[93] Newby, [15].

In most respects, r 78 of the Rules in short form provides guidance to members’ decision making consistent with these authorities. Reasons can be brief, they must expose the member’s path of reasoning in reaching certain conclusions and should not be subject to overly close scrutiny in search of error.
The impugned finding in the Member’s decision can be found at reasons [98] where the Member found as follows:
“I am therefore unable to make the order as sought as [sic] by the [appellant] as I’m not persuaded to the requisite level that she has suffered an injury to her thoracic spine arising out of or in the course of employment as required. The two primary reasons are firstly a failure to persuade me as to the cause of any thoracic symptomatology, secondly if it is caused by the syrinx to persuade me that the syrinx arose from the nature and conditions of employment.”
Specifically, the appellant alleges that a consideration of [89]–[98] of the Member’s reasons fails to disclose what material was relevant to the Members’ decision.
Needless to say, the appellant at all times bore the burden of proof with respect to the causal relationship between her symptomatology in her thoracic and lumbar spines and the nature and conditions of her employment with the respondent. The Member commenced her consideration of the medical evidence at reasons [30]. In particular, the Member examined in some detail the opinions of Dr Vijay Maniam which spanned the period from 2004–2020. This appears at reasons [31]–[43]. The Member in this section of the reasons details the various complaints that the appellant presented to Dr Maniam from time to time. Significantly, the Member has noted that on a number of occasions during this period, no history was taken by Dr Maniam with respect to any pain in the thoracic and/or lumbar spine.[94] The Member quite appropriately warned herself regarding the lack of references in Dr Maniam’s notes to thoracic pain. Clearly, the appellant had suffered a significant injury to her cervical spine which necessitated surgery on 23 March 2004 and so the lack of recorded complaints in Dr Maniam’s notes was dealt with appropriately by the Member.[95] A similar approach was adopted by the Member with respect to the opinions of Dr Milder,[96] Dr McGee-Collett,[97] Dr Mahony,[98] the general practitioner’s notes,[99] Dr Vasic,[100] Dr Oates[101], Dr Panjratan,[102] Dr Davies,[103] and Dr Isbister.[104]
[94] Reasons, [33], [35], [36].
[95] Reasons, [92].
[96] Reasons, [44]–[49].
[97] Reasons, [50]–[57].
[98] Reasons, [58]–[59].
[99] Reasons, [61]–[71].
[100] Reasons, [72].
[101] Reasons, [75].
[102] Reasons, [76]–[84].
[103] Reasons, [85].
[104] Reasons, [86].
It is clear from a consideration of the Member’s detailed review of the medical evidence, that the Member was examining that evidence with a view to ascertaining the support that the medical evidence provided for the appellant’s claim.
The Member has referred to Dr Maniam’s report of 13 June 2019.[105] The Member, at reasons [93], records Dr Maniam’s opinion regarding the appellant’s thoracic symptoms. It is worthwhile to note that this opinion, which appears beneath the heading “Diagnosis”, appears immediately after a consideration of what had been described at ARD p 392 as “New diagnostic studies”. The new diagnostic studies included an MRI of the thoracic spine which said as follows:
“MRI thoracic spine
The alignment is normal, there is Grade I spondylolisthesis at L3/4.
There is a small linear, central syrinx in the thoracic cord from T3 to T9.
In the thoracic spine there are mild generalised spondylitic changes.
At L3/4 there is moderate disc desiccation and a mild posterior annular bulging.
At L4/5 there is minor disc desiccation. There is small left foraminal disc protrusion with an associated annular tear.”[106]
[105] ARD, p 389.
[106] ARD, p 393.
As the Member recorded at reasons [93], Dr Maniam was of the view that the neurologist attributed the syrinx to trauma and as a result included the traumatic thoracic syrinx in the determination of whole person impairment.
The Member then evaluates this opinion at reasons [94]–[96] and says that “this is not an adequate explanation of the causation of the [appellant’s] pathology in her thoracic spine. It is not persuasive and does not meet the necessary standard for me to make a finding as sought by the [appellant] in respect of the syrinx arising from the nature and conditions of employment.”[107] I concur with the Member with respect to this finding. Firstly, the evidentiary basis upon which Dr Maniam posits this opinion is not established. Dr Maniam stated that the “small syrinx in the thoracic cord extending from T3 to T9, which the neurologist attributed to trauma”[108] cannot be found in the reports of the neurologist, Dr Milder. Dr Milder in his report of 22 August 2006 says as follows:
“Nevertheless, a presumed post-traumatic thoracic syrinx has not changed in size.”[109]
[107] Reasons, [96].
[108] ARD, p 393.
[109] ARD, p 453.
At its highest, Dr Milder’s report posits that the post-traumatic thoracic syrinx is
“presumed”, hardly a conclusive view. Importantly, Dr Milder does not attribute the post-traumatic thoracic syrinx to any work injury (howsoever described).
Indeed Dr Milder in his report to the appellant’s solicitors of 19 October 2009 is of the following opinion:
“A thoracic syringomyelia, likely an ‘incidental’ finding may be the cause of pains within the lower limbs.”[110]
[110] ARD, p 456.
This is an opinion commenting upon the MRI scans of the thoracic spine which were performed in August 2003. Nowhere does the neurologist state that the symptomatology in the appellant’s thoracic spine was either due to the traumatic syrinx or was related to the nature and conditions of the appellant’s employment.
Secondly, Dr Maniam in the report where he makes these findings,[111] does not provide any path of reasoning, other than pointing to the neurologist’s opinion, to substantiate the view that he reached. This approach is contrary to the plurality’s decision in Dasreef Pty Ltd v Hawchar.[112]
[111] ARD, p 380.
[112] [2011] HCA 21, [42].
A fair reading of the Member’s decision as a whole would reveal that the Member had significant concerns about the medical opinion said to support the appellant’s claim. The Member closely examined the medical evidence, and particularly the evidence of Dr Maniam, and was not satisfied that it was an adequate explanation regarding causation of the appellant’s thoracic symptoms.[113] The assertions made by the appellant in paragraphs [4] and [5] under the heading Ground Two in the appellant’s submissions in chief are not made out. The Member’s reasons, though brief and succinct, readily reveal the Member’s reasoning as to why she was not satisfied with the appellant’s case on causation with respect to the thoracic spine.
[113] Reasons, [96].
The assertion in this ground that the Member has failed to give any or adequate reasons has not been successful and as a result Ground Two is dismissed.

As to Ground Three

The appellant alleges under Ground Three that the Member failed to take into account relevant evidence in so far as the thoracic spine injury was concerned. The appellant then identifies at [5] under Ground Three, five separate pieces of evidence which are said to substantiate this submission. Four of the attendances referred to in these pieces of evidence relate to physiotherapy, the final attendance is in relation to an MRI scan.
It is necessary to examine this evidence before assessing whether or not this appeal ground is made good.
In terms of the physiotherapist’s notes, the notes from Efrem Bunguric Physiotherapy Centre commence at ARD p 463 and consist of a series of certificates. These certificates simply record the fact of the appellant’s attendance for physiotherapy as well as a description of the area of her body that was treated. The series of certificates can be briefly summarised:
(a)    Efrem Bunguric Physiotherapy Centre Certificate dated 27 June 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy today for treatment to her neck.”
(b)    Efrem Bunguric Physiotherapy Centre Certificate dated 2 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended for physiotherapy treatment today.”
(c)    Efrem Bunguric Physiotherapy Centre Certificate dated 4 July 2003
“To whom it may concern
This letter is to certify that Katherine Zgouras attended physiotherapy today for treatment to her neck and lower back.”
(d)    Efrem Bunguric Physiotherapy Centre Certificate dated 7 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy on Friday 4/7/03 and Monday 7/7/03 for treatment to her neck and upper back.” (This is incorrectly summarised in the appellant’s submissions as treatment to her “cervical and thoraco-lumbar spine”.)
(e)    Efrem Bunguric Physiotherapy Centre Certificate dated 10 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy today for treatment to her neck and low back.”
(f)    Efrem Bunguric Physiotherapy Centre Certificate dated 11 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy today for treatment to her neck and upper back.”
(g)    Efrem Bunguric Physiotherapy Centre Certificate dated 14 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy today for treatment to her neck and upper back.”
(h)    Efrem Bunguric Physiotherapy Centre Certificate dated 18 July 2003
“To whom it may concern
This letter is to certify that Kathy Zgouras attended physiotherapy on the 16th and 18th July 2003 for treatment to her neck and upper back.”[114]
[114] ARD, pp 463–470.
I accept that each of these certificates is an accurate record of the physiotherapy treatment administered to the appellant on each of these occasions. At its highest, these certificates reveal that the appellant was experiencing pain or discomfort to those parts of her body that required treatment by the physiotherapist. However, and in this respect I mean no criticism of the physiotherapist’s certificates, the certificates in and of themselves are neither probative of nor suggestive of the occurrence of any thoracic injury.
The final piece of evidence referred to by the appellant is a report of Dr L T Masters of 9 August 2003 reporting upon the results of an MRI of the appellant’s cervical and thoracic spine. This report states as follows:
“EXAM: MRI CERVICAL AND THORACIC SPINE
There is a thoracic syringohydromyelia which extends from T3 to T8. The hydromyelia is maximal at the T4 and T5 vertebral body levels, where it measures approximately 4mm in diameter and produces mild expansion of the cord.
There is mild dilation of the central canal both rostral and caudal to the syringohydromyelia.
There is no evidence of Chiari 1 malformation.
There is multilevel cervical spondylotic disease.
At C3/4 there is a mild annular bulge but no central stenosis. There is right foraminal stenosis secondary to uncovertebral arthropathy with potential mass effect on the C4 root.
At C4/5 there is a small left sided disc protrusion but no central stenosis or nerve root compressive lesion.
At C5/6 there is a left sided disc protrusion which flattens the left ventral aspect of the cord and extends into the foramen with potential mass effect on the C6 root. There is some osteophyte lipping at the margins of the disc protrusion.”[115]
[115] ARD, p 555.
In terms of this evidence now relied upon by the appellant, the Member dealt with it as follows.
At reasons [5], the Member found as follows:
“The [appellant] consulted Dr Papadakis and Dr Alberti in relation to her pain symptomatology and the [appellant’s] recollection is that both doctors recommended physiotherapy which the [appellant] underwent.”
Regarding the MRI the Member recorded the following at reasons, [8].
“The [appellant] underwent an MRI of her thoracic spine in August 2003 which evidenced a syrinx between the third and eighth thoracic levels.”
At reasons [60] beneath the subheading “physiotherapy notes”, the Member recorded as follows:
“The [appellant] attended physiotherapy as recommended by her treating doctors. It is quite clear that in 2003 that the [appellant] attended treatment at EB Physiotherapy for treatment of the neck and lower back.”
From a consideration of these passages from the Member’s decision, it is clear that she was aware of both the MRI scan and the remarks made by the physiotherapist in the series of reports that I have outlined above. Indeed the Member accepts at reasons [60] that it was “clear” in 2003 that the appellant was having physiotherapy treatment for her neck and lower back which is an accurate summation of the material that the appellant relies upon under this ground of appeal.
However if one considers the decision as a whole, it is quite clear that what the Member was concerned with was whether or not the appellant’s complaints of pain in her thoracic spine were caused by the nature and conditions of her work with the respondent, or alternatively whether they were related to the traumatic syrinx that her treating specialist Dr Maniam has referred to. There is no finding by the Member that the appellant was not suffering symptomatology from her thoracic spine. The question that the Member had to grapple with was what was the cause of the appellant’s pain in her thoracic spine?
In the Findings and Reasons section of the Member’s decision, the Member did not refer in terms to the evidence relied upon by the appellant under this appeal ground. I do not accept that this was an error on the part of the Member. To do so would be to over-scrutinise the Member’s reasons without regard to the statutory requirement of providing brief reasons and the remarks that I have set out above from cases such as Roncevich. Further, I think the Member has explained her path of reasoning in terms of the appellant’s failure to establish causation, and that the evidence relied upon by the appellant was insufficient to displace those conclusions. Clearly, by the time the Member reaches the Findings and Reasons section of her decision, she has accurately set out the evidence referred to in Ground Three in earlier sections of her decision. No issue is taken with the accuracy of those earlier descriptions. But when this material is viewed, and for that reason I have set it out in detail above, it cannot be said that there was a failure to take this evidence into account. I should say however that even if the Member was in error in failing to refer to the specific evidence complained of in this Ground, the probative value of the material referred to is low and would not otherwise serve to displace the Member’s finding that she was not persuaded to the requisite level that the appellant had suffered injury to her thoracic spine.[116] That finding, on a fair reading of the material relied upon by the appellant, was an available finding to the Member to make.
[116] Reasons, [98].
Ground Three has not been established and is as a consequence dismissed.

DECISION

The Member’s Certificate of Determination dated 18 May 2021 is confirmed.

Judge Phillips
PRESIDENT

12 May 2022

[2022] NSWPICPD 17

18 May 2021