Issue 8: August 2016

Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37

Forensic medical reports; application of cl 49 of the 2010 Regulation; adequacy of reasons; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43

Keating P

29 July 2016

Facts

The worker sustained an injury to his back in the course of his employment and was awarded weekly payments of compensation and medical expenses for a closed period.

In the proceedings before the Arbitrator, the respondent employer relied on the forensic medical report of Dr Rimmer, orthopaedic surgeon. It also sought and was granted leave to rely upon the forensic medical report of Professor Ehrlich, also an orthopaedic surgeon, only in so far as it related to the history he obtained.

The worker appealed the Arbitrator’s determination. He alleged that the Arbitrator erred in finding that the effects of an accepted work injury ceased after 13 weeks and in failing to give adequate reasons for so finding. The worker also alleged that the Arbitrator erred by taking into consideration evidence that had been excluded as being in breach of cl 49 of the 2010 Regulation, namely Professor Ehrlich’s opinion on causation and incapacity.

Held: The Arbitrator’s determination was revoked and the matter was remitted to another Arbitrator for re-determination.    

Consideration of excluded evidence

1. The appellant submitted that the Arbitrator erred by relying on the opinion of Professor Ehrlich on the critical questions of causation and incapacity. The appellant also submitted that the Arbitrator’s assessment in relation to the weight of the evidence dealing with questions of causation and incapacity was influenced by Professor Ehrlich, which she had excluded from the evidence due to breach of cl 49 [65], [69].

2. The respondent did not deny that the Arbitrator considered and placed weight on Professor Ehrlich’s opinion. However, it submitted that the “driving force” behind the Arbitrator’s determination was her view of the appellant’s credibility in relation to his reported symptoms (the worker was initially not forthcoming about a prior injury to his lower back which he claimed had resolved) [70].

3. The President found that the Arbitrator did not give reasons for her conclusion that incapacity ceased after only three months. She stated that her conclusions were based on her assessment of the weight of the evidence which impliedly included the opinion of  Professor Ehrlich. Her findings were consistent with Professor Ehrlich’s opinion that the injury was a strain and not the more serious injury alleged. The Arbitrator’s reliance on that evidence was a clear error (Hunter New England Local Health District v Pond [2016] NSWWCCPD 28 applied) [73]–[75].

4. The President was not satisfied that the Arbitrator would have reached the same conclusion in the absence of Professor Ehrlich’s opinion. Except for Professor Ehrlich’s evidence there was a substantial body of evidence which would have supported a finding of continuing incapacity. It followed that this ground of appeal succeeded [76].

Did the Arbitrator err in finding that there was insufficient evidence of incapacity extending beyond 17 January 2014/adequacy of reasons

5. The appellant submitted that the Arbitrator provided no explanation for finding that incapacity arising from the accepted work injury ceased after 13 weeks. The appellant also submitted that the evidence supported a finding that the appellant was unfit for a period of at least 12 months post injury. Accordingly, it was submitted that the Arbitrator erred in finding that incapacity lasted for only a few months [77], [79].

6. The President found that the Arbitrator failed to disclose any reason or explanation for the finding that the aggravating effects of the injury ceased after three months (s 294(2) of the 1998 Act; r 15.6 of the 2011Rules; NSW Police Force v Newby [2009] NSWWCCPD 75; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6; and Beale v GIO (NSW) (1997) 48 NSWLR 430 applied) [83]-[88].

7. The President observed that the extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725). However, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other” (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311, quoted with approval in Hume v Walton [2005] NSWCA 148). The Arbitrator did not do that [89].

8. The Arbitrator did not accept the general practitioner’s evidence that the worker’s injury greatly exacerbated his pain and precluded him from working. However her reasons for so concluding were not explained. She did not accept the accuracy of a statement in the general practitioner’s notes regarding the worker’s condition prior to the injury, however that did not provide a foundation for rejecting his firmly held views regarding the worker’s fitness for work [90].

9. The Arbitrator rejected the rehabilitation specialist’s assertion that the worker had been working without difficulty prior to the injury because the rehabilitation specialist did not have an adequate history of the worker’s time off work on account of his back problems. The Arbitrator also rejected the rehabilitation specialist’s assertion that the worker was permanently unfit to work as a plant operator and was restricted to sedentary duties and that it would be difficult for the worker to secure suitable employment in a position that he is reasonably qualified to perform by way of education, training or experience in a regular and reliable manner.  However she did not explain why she did so [91].

10. The President found that the rehabilitation specialist’s opinion provided a fair climate for the acceptance of his opinion. His opinion regarding the question of incapacity arising from the injury was a considered opinion having regard to the history of significant symptomology in the appellant’s back prior to the injury, his clinical assessment and the pathology identified on radiological imaging (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 applied). If the rehabilitation specialist’s opinion was of no weight the Arbitrator should have explained why. She did not do so [92]–[94].

11. It followed that the President rejected the respondent’s submission that the Arbitrator was provided with any reliable guidance from independent experts regarding the assessment of the worker’s capacity for work arising from the injury as found. With the exception of Professor Ehrlich (which was impermissibly relied upon) the weight of evidence was against the Arbitrator’s finding on the question of incapacity. It followed that the Arbitrator’s findings were not open on the evidence [95]–[96].

Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36

Section 329 of the 1998 Act; application of Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; 6 DDCR 440 and Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56; duty to give adequate reasons

Snell AP

15 July 2016

Facts:

This appeal concerned the exercise of an Arbitrator’s discretion pursuant to s 329 of the 1998 Act to refer a matter for further assessment by an AMS.

The worker sustained an injury to her shoulder at work. As liability was not in issue, the matter was referred to an AMS for assessment of whole person impairment. Dr Anderson (an AMS) issued a MAC where he assessed the worker’s whole person impairment at a combined total of 10 per cent. As the impairment was not greater than 10 per cent, the worker was precluded from recovering compensation under s 66(1) of the 1987 Act.

The worker appealed the MAC to an Appeal Panel. The Appeal Panel found error in the amount of impairment in each upper extremity. However, the combined impairment yielded the same result of a combined total of 10 per cent.

At the worker’s request, the matter was listed before an Arbitrator, where she made an application under s 329(1)(b) of the 1998 Act. The Arbitrator refused the application on the basis that it would give rise to a fresh MAC and create fresh rights of appeal to an Appeal Panel and that the “dictates of justice” did not require the referral.

The issues in dispute on appeal were:

(a) whether the appeal was ‘interlocutory’;

(b) whether, in determining the worker’s application pursuant to s 329 of the 1998 Act, the Arbitrator gave inappropriate weight to the fact that the Appeal Panel had already declined to grant “the same relief”, so that “she would not make a different decision”. What was required was “a careful and thorough deliberation on the facts”, and

(c) whether the Arbitrator failed to properly consider the worker’s application, and failed to provide proper reasons.

Held: The Arbitrator’s determination was confirmed.  

Was the Arbitrator’s decision interlocutory and should leave be granted?

1. In this matter, the proceedings remained on foot; they had not been finally determined. Even after the decision of the Arbitrator refusing to exercise her discretion pursuant to s 329, it remained theoretically possible that steps could be taken which could lead to a result different to that dictated by the most recent MAC. Prior to the issue of a Certificate of Determination, if there were some appropriate factual and legal basis, a further application pursuant to s 329 could be made, or a further appeal, for example pursuant to s 327(3)(a) or (b), may lie. The Acting President did not suggest that this was likely, but its potential availability demonstrated the interlocutory nature of the decision appealed against (Licul v Corney [1976] HCA 6; 50 ALJR 439 applied). Leave was granted pursuant to s 352(3A) of the 1998 Act [35], [41]–[42], [48].

Ground number 1 – application of a wrong test

2. This ground asserted that the Arbitrator applied a wrong test in dealing with the application [49].

3. The worker’s submissions on appeal largely restated the submissions made to the Appeal Panel. There was no further avenue in the Commission pursuant to Pt 7 of Ch 7 of the 1998 Act for appeal from the Appeal Panel decision [80].

4. The Acting President accepted, consistent with Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; 6 DDCR 440 (Mansour), that an order could be made pursuant to s 329(1)(b) of the 1998 Act, notwithstanding that there had been an Appeal Panel decision. There had been no final determination of the dispute, and the Acting President accepted that the Commission had jurisdiction to make such an order, should it be appropriate. It was also accepted, as was stated in Mansour at [74], that a party, having failed in a Medical Appeal, is not restricted to taking Supreme Court proceedings as his or her only recourse [81].

5. Deputy President Roche observed, in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 (Milosavljevic) at [58(c)], which the Acting President accepted, that s 329 must be read in the context of the 1987 and 1998 Acts. It is not to be “used in an unrestrained or unlimited way”. Its scope is to be “determined on a case by case basis”. Its use is predicated on “the dictates of justice” [87].

6. Section 329(1)(b) provides a remedy in circumstances where a Medical Appeal, for whatever reason, is not sufficient to satisfy the dictates of justice. The factual situation in Mansour is a good example [90]–[91].

7. The worker submitted that the AMS did not conduct an appropriate medical examination. The worker argued that the Appeal Panel denied the worker procedural fairness by not re-examining her. The difficulty with this argument was that there was no evidentiary basis for the proposition that the examination by the AMS did not comply with the WorkCover Guides for the Evaluation of Permanent Impairment, 3rd edition. It was a matter for the discretion of the Appeal Panel, whether or not it ordered a re-examination. It did not accept the worker’s submissions going to the alleged deficiencies in the method of examination adopted by the AMS. It was understandable, in those circumstances, that it did not consider a re-examination to be necessary. The Appeal Panel, in reaching its conclusion, specifically referred to the absence of evidence of a defective examination, in accepting the presumption of regularity (Jones v The Registrar WCC [2010] NSWSC 481) [82], [92]–[94].

8. It followed that the evidence did not support the presence of error in how the AMS conducted the examination of the worker. That being so, the decision by the Appeal Panel that a re-examination was not necessary did not amount to a denial of procedural fairness. The Arbitrator’s reasons were generally consistent with the Acting President’s reasoning [97].

9. The Arbitrator clearly approached the matter with an awareness of the relevant statutory provisions, and the Presidential decisions, to which she referred. She referred to the principles which emerged from those decisions. She clearly was aware that she was not bound to accept the conclusions of the Appeal Panel, if the interests of justice dictated otherwise (Mansour, to which she referred). She was aware that the operation of s 329(1)(b) was to be decided on a “case-by-case basis” (Milosavljevic, to which she referred). Read in this light, her reasoning was to be understood in the context of the specific factual background in the current matter. She did not accept that she should, contrary to the decision of the Appeal Panel, accept the arguments of the worker going to the deficiencies in how the AMS conducted his examination. It followed from that that there was no injustice or denial of procedural fairness in the decision of the Appeal Panel, and that a re-examination was not required [105].

10. The Acting President agreed with the Arbitrator’s conclusion, and accepted the reasons given by the Appeal Panel for rejecting the worker’s submissions, on compliance by the AMS with the WorkCover Guides. The discretionary decision by the Appeal Panel, that re-examination was not required, did not result in procedural unfairness. There was no basis established for the further referral of the matter to an AMS, pursuant to s 329(1)(b) of the 1998 Act. It followed that the Acting President did not accept that the Arbitrator applied a wrong test, nor that she erred in her reasoning process dealing with the application. Ground number 1 was rejected [106]–[107].

Ground number 2 – failure to properly consider the application and provide reasons

11. This ground largely repeated matters raised in ground number 1. As the Acting President stated in his reasons dealing with ground number 1, he did not accept that the Arbitrator failed to apply a proper test [108], [111].

12. There remained an argument by the worker that the Arbitrator’s reasons were inadequate. It was necessary to deal with the Arbitrator’s reasons as a whole. The reasons included reference to s 329(1) of the 1998 Act and the two relevant Presidential decisions dealing with it (Mansour and Milosavljevic). They included reference to the essential principles emerging from those decisions. It was apparent that the Arbitrator was cognisant of the test which she was required to apply and that the Arbitrator was dealing with the application on the basis of whether the dictates of justice required that the order be made. The Arbitrator did not, in her reasons, identify any aspect of the Appeal Panel decision which involved procedural unfairness, or which otherwise made it desirable that a further examination be ordered (NSW Police Force v Newby [2009] NSWWCCPD 75 and Beale v GIO (NSW) (1997) 48 NSWLR 430 applied) [112], [115], [118].

13. The Acting President held that the Arbitrator’s reasons were adequate, and complied with her statutory and common law duty. Ground number 2 was rejected [120]–[121].

Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35

Admission of ‘forensic medical reports’ on the restricted basis contemplated in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96; nature of the restriction; alleged errors in fact finding; duty to give reasons

Snell AP

14 July 2016

Facts:

On 3 June 2005, the worker slipped whilst descending stairs at work, injuring her right shoulder. The worker grabbed the hand railing and fell heavily onto her right side and back side.

Section 66A agreements were entered into in 2008 (for 8 per cent whole person impairment) and 2009 (for a further 3 per cent whole person impairment) in respect of the right upper extremity and scarring.

The worker made the present claim on 24 June 2015, claiming additional lump sum compensation pursuant to s 66 of the 1987 Act for a combined 18 per cent whole person impairment (10 per cent right upper extremity, 7 per cent cervical spine and 2 per cent scarring). A Commission Arbitrator found that the worker did not injure her cervical spine and referred the matter for assessment of whole person impairment in respect of scarring. The worker appealed.

The issues in dispute on appeal were whether the Arbitrator erred in:

(a) the use of evidence, admitted in accordance with the principles in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96 (McCarthy);

(b) his findings in respect of the limited recording of contemporaneous complaint;

(c) respect of his findings relating to the mechanism of injury;

(d) respect of his findings relating to the evidence of the nominated treating doctor, and

(e) respect of the use of evidence of Dr Stabler.

There was also a sixth ground of appeal in the body of the worker’s submissions asserting that the Arbitrator erred in his rejection of the use of the reports of Dr Bodel, if restricted to their use as witness statements, consistent with the principles in McCarthy.

Held: The Arbitrator’s determination was confirmed in part and the matter was remitted to the Registrar for referral to an AMS to assess whole person impairment.  

Ground number 6 – failing to admit the reports of Dr Bodel

1. It was clear that the reports of Dr McKee and Dr Bodel, attached to the Application to Resolve a Dispute were both ‘forensic medical reports’ within the meaning of cl 49(4) of the 2010 Regulation. Only one of these could be admitted under cl 49(1). The respondent properly took objection to both being admitted [63].

2. There was nothing recorded in Dr Bodel’s reports, by way of history, which would assist the worker’s case [75].

3. In McCarthy, Roche DP at [33], referred to two questions governing the admission of reports on the restricted basis. The second was whether there was unfairness to the other party. It was not suggested there would be unfairness to the respondent, if the reports of Dr Bodel were admitted on the restricted basis. The first question was whether the material was relevant to an issue in dispute. Most of the history recorded by Dr Bodel went to the (uncontentious) injury to the right shoulder. The first of the questions raised in McCarthy raised at [33] was answered in the negative. This justified a refusal to admit Dr Bodel’s reports, on a restricted basis, consistent with McCarthy [78], [85].

4. The shorthand way in which the Arbitrator expressed himself, relevant to admission of Dr Bodel’s reports on the basis of history only, reflected the relatively shorthand way in which the application had been expressed (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385G–386A and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270B–C cited) [86].

5. The brevity of the Arbitrator’s reasons, given the circumstances of the relevant application, was not inappropriate. It did not support the contention that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application: NSW Police Force v Newby [2009] NSWWCCPD 75, applying YG & GG v Minister for Community Services [2002] NSWCA 247. The view reached by the Arbitrator was, in the Acting President’s view, correct. Ground Number 6 was rejected [87]–[88].

Ground number 1 – error in the use of medical evidence

6. There was a specific issue raised between the parties going to the use which can properly be made of a report admitted on the basis contemplated in McCarthy. McCarthy is authority for the proposition that a ‘forensic medical report’, the use of which is otherwise precluded by cl 49 of the 2010 Regulation, may be admitted as a witness statement for the limited purpose of proving the history which it contains. The history would include the complaints made at the time of the examination. That is subject to the provisos contained in McCarthy at [33], being the requirement of relevance, and consideration of whether such admission causes unfairness to another party. McCarthy does not go further than that [107], [109]–[111].

7. The concept in McCarthy, of admitting such a report as a “witness statement”, is that the report becomes, for the purpose, lay evidence. Evidence from a doctor of what was said by a worker at an examination, both history and complaints, is admissible from the doctor who was present, as it would be from any lay witness who happened to be present and to record it. The report, for that purpose, ceases to be a ‘forensic medical report’ (see McCarthy at [26] and [29]). The evidence of the medical practitioner who is the author of the report becomes the evidence of a lay witness, going to what was said. It is this which places it outside the operation of cl 49 [115].

8. Consistent with this, evidence from the medical practitioner is not admissible on topics which are properly in the province of an expert medical witness. If it were otherwise, the report would retain its status as a ‘forensic medical report’, and its use would be precluded by the operation of cl 49 of the 2010 Regulation [116].

9. The conducting of a medical examination of a worker, and the recording of findings, is in the province of an expert medical witness. The reports of Dr Oates, Dr Thompson and Dr Powell having been admitted on the restricted basis contemplated in McCarthy, the use of which could be validly made of them precluded not only the expressed opinions, but also the findings on examination recorded by those doctors. The Acting President accepted the worker’s submission on appeal that, when the respondent submitted at the arbitration hearing on the findings on examination of Dr Oates and Dr Powell, this exceeded the use which could be validly made of those doctors’ reports [118], [123], [125].

10. The Arbitrator’s decision was not inconsistent with the view the Acting President had formed regarding the operation of the decision of McCarthy, in the circumstances. It was apparent, from the Arbitrator’s reasons, that the submissions going to the findings on examination by Dr Oates and Dr Powell, and the opinion of Dr Powell, played no part in the Arbitrator’s reasoning. The Arbitrator said that he did not accept the worker’s case, that she had not been able to distinguish between the condition of her shoulder and that of her neck. This fundamentally undermined the opinion of Dr McKee. Ground Number 1 was rejected [157]–[159].

Ground number 2 – limited recording of contemporaneous complaint

11. This ground did not specifically identify the findings that were said to be erroneous, or the error alleged. There was a difficulty with the worker’s allegation of cervical spine injury, given the lack of recorded reporting of neck symptoms, for about two and three quarter years after the fall [165]–[166], [180].

12. Dr McKee’s report stated that the worker did not realise that some of her symptoms were due to a neck injury. However, there was a competing explanation by Dr Allen who said that the injury appeared to have been to her shoulder at all times and the worker confirmed this. The Acting President stated that the Arbitrator was aware of Dr McKee’s explanation and was under no obligation to accept Dr McKee’s view. The Acting President held that the Arbitrator’s conclusion was reasonably available on the evidence and did not reveal error [180]–[181], [192], [194].

13. Regarding the worker’s submission that the Arbitrator’s reasons were inadequate, the Arbitrator’s reasons complied with his statutory duty pursuant to s 294(2) of the 1998 Act and Pt 15 r 15.6 of the 2011 Rules. Ground Number 2 was rejected [196]–[198].

Ground number 3 – the mechanism of injury

14. The worker made a statement on 27 November 2007 which stated that she injured her shoulder in the fall. In a subsequent statement made on 23 January 2013, the worker stated that she injured her neck and her shoulder in the fall of 3 June 2005. The Arbitrator’s finding on the mechanism of injury was consistent with reading the claim form and the worker’s statement dated 27 November 2007 together. These were the more contemporaneous of the worker’s versions of the accident in evidence. It was open to the Arbitrator to accept that version [205]–[207], [211].

15. The Arbitrator concluded that the worker had not discharged her onus of proof. Ground Number 3 was rejected [220]–[221].

Ground number 4 – error in findings related to the nominated treating doctor and

Ground number 5 – the evidence of Dr Stabler

16. The worker submitted that the Arbitrator failed to acknowledge the worker’s claim regarding the evidence of the treating doctor and the evidence of Dr Stabler, the treating orthopaedic surgeon. The Arbitrator acknowledged the evidence and submissions put in the worker’s case, on this topic, contrary to the worker’s submissions on the appeal. The Arbitrator was not obliged to refer to every piece of evidence (see NSW Police Force v Newby [2009] NSWWCCPD 75). The Arbitrator gave ample and cogent reasons for arriving at his view. Grounds 4 and 5 were rejected [225], [228], [231]–[232], [245]–[247].

Appropriate orders

17. The Acting President stated that the Arbitrator’s referral to an AMS of the claim in respect of scarring was apparently based on an acceptance of the (mistaken) state of affairs suggested by the pleadings and letters of claim, that the previously compensated 11 per cent whole person impairment was solely in respect of the right upper extremity. The worker’s solicitor conceded that there was no appropriate basis for referral to an AMS of the allegation in respect of scarring. The worker, by consent, amended her claim for further impairment to the right upper extremity to claim, pursuant to s 66 of the 1987 Act, 14 per cent whole person impairment in respect of the right upper extremity [252], [254], [259].

18. As the claim being referred to the AMS was now only that for the right upper extremity, there was no efficacy in referring reports, otherwise in breach of cl 49 of the 2010 Regulation, on the basis of their histories only. The appropriate course was that the material sent to the AMS for assessment of whole person impairment should not include the reports of Dr Bodel, Dr Oates, Dr Thomson and Dr Powell [260].

Lymbery v Shoalhaven City Council [2016] NSWWCCPD 38

Entitlement to medical expenses pursuant to s 60(5) of the 1987 Act; whether proposed surgery is reasonably necessary as a result of accepted work injuries

King SC ADP

29 July 2016

Facts:

The worker sustained a lower back injury and previously underwent a lumbosacral discectomy and neurolysis in 2006, before undergoing a revision discectomy, neurolysis and L5/S1 fusion in 2007. The present proceedings were commenced when the worker made an application under s 60 of the 1987 Act for the cost of surgery to explore the fusion and if necessary to fuse L4/5 and L5/S1. A Commission Arbitrator held that degenerative change was the most probable cause of the worker’s current symptoms and was not satisfied that the need for surgery was a result of one or both of the subject injuries. The worker appealed.

The issues in dispute on appeal were whether:

(a) there was no evidence of any real spinal difficulties affecting the worker prior to the injury of 29 October 2004 compared with a continuity of problems thereafter, marked by some improvement after surgery but subsequent recurrence of problems;

(b) the Arbitrator, having expressed the view that there was a possible relevant connection, did not correctly perform her decision-making task in determining whether, upon the basis that the medical evidence recognised a possible causal connection, on the totality of the evidence including that medical evidence the connection should be accepted as probable;

(c) the Arbitrator erred in not accepting that the L5/S1 fusion could over time have provoked symptoms at L4/5 through stress upon that adjacent level of the spine, that is not taking account of this possibility on the medical evidence and determining whether on the totality of the evidence it represented a probable causal factor, and

(d) the Arbitrator erred in failing to appreciate and act upon the implications of the opinion of Dr Al Khawaja (the treating medical specialist) in relation to the surgery he proposed, which involved at least the prospect of a return to the level of the appellant’s spinal column which it was common ground had been affected by injury and brought by injury to surgery on two occasions.

Held: The Arbitrator’s determination was revoked.  

Discussion and findings

1. The Acting Deputy President noted that there was substance in the respondent’s criticism of the worker’s reliance on the report signed by Dr Kumar expressing the opinion of Dr Al Khawaja and the respondent’s argument in favour of discounting the certificates of Dr Bye (AMS) and the Appeal Panel, effectively upon the basis that they were directed to a different issue [34]–[35].

2. Notwithstanding these points, the Acting Deputy President was of the view that the Arbitrator erred in determining the requisite causal connection did not exist between the two injuries and the surgical intervention thereafter or a combination of those things. The Arbitrator’s reasons also, certainly implicitly and close to expressly, acknowledged the possibility of a causal connection by way of stress on the L4/5 level of the spine from the adjacent fused L5/S1 level over a period of time. An interpretation of Dr Rosenberg’s (the original operating surgeon) and Dr Marnie’s (qualified orthopaedic surgeon) reports on a commonsense level was to say either that they were outright of the view that the fusion was relevantly causal, or at least it was consistent or possible that the fusion was relevantly causal. Dr Edwards’ report (qualified expert for the respondent) allowed such a connection as being possible at least in the abstract [36].

3. Dr Bodel (qualified orthopaedic surgeon) expressed the view that the requisite causal connection existed. That the Arbitrator discounted his view for want of sufficient reasoning of explanation on a Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705basis was too exacting a reading of the report, which should have been seen as giving support for the worker’s claim (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; Allianz Australia Limited v Sim [2012] NSWCA 68 and Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157 referred to) [37].

4. It was added that should Dr Bodel’s reports be discounted by the Arbitrator, Dr Edwards’ report should have also been discounted and rejected on the same basis. The Acting Deputy President held that the views of Drs Bodel and Edwards were satisfactorily expressed and needed to be evaluated against the background of the evidence as a whole [38].

5. When that exercise was undertaken, it seemed that if not the only commonsense view, by far the preponderant commonsense view, must be that the necessary causal connection existed. Once expert medical evidence has informed a fact-finder of a possible medical or scientific connection, in order to properly discharge the decision-making task the fact-finder must consider whether on the totality of the evidence the possibility should be seen as probability (EMI (Australia) v Bes [1970] 2 NSWR 238; 44 ALJR 360(n) and Fernandez v Tubemakers of Australia Limited [1975] 2 NSWLR 190; (1976) 50 ALJR 721) [39].

6. The Acting Deputy President concluded that on the totality of the evidence, the probability was that the worker’s current condition was causally related to injury arising out of or in the course of his employment including the surgical intervention which followed such injury. It did not appear that the Arbitrator considered whether the whole body of the evidence converted the possible causal connections she acknowledged into probabilities, and if the Acting Deputy President was correct in that impression she fell into error in not properly discharging her decision-making function. If he was wrong in that and her decision was to be read as saying that the evidence did not rise higher as a whole than the mere possibilities she noted, in the Acting Deputy President’s view, the Arbitrator was wrong on a commonsense basis (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) and should have held to the contrary [40].

7. It followed that the decision of the Arbitrator in the terms in which she gave it denying the requisite causal connection should be overturned. It was importantly noted that the Arbitrator assumed rather than decided that the surgery was “reasonable and necessary”. It was also importantly noted that “reasonable and necessary” is the wrong test. Treatment does not have to be “reasonable and necessary”, which is a much higher standard than the test of reasonably necessary, before compensation is payable (see Diab v NRMA Ltd [2014] NSWWCCPD 72) [42].