Cruceanu v Vix Technology (Aust) Ltd

1. [1]

   BASTEN JA: On 10 April 2012 the appellant, Octavian Cruceanu, suffered an accident at work when he stepped onto the edge of a block of wood, causing him to stumble and crash into a nearby pillar. There was no dispute that he suffered an injury to his right knee, which required surgery. However, he also claimed that he developed a serious neurological condition in his cervical spine as a result of the accident. It was not in doubt that he suffered from the condition; the dispute concerned the causal relationship between the accident and the condition. His claim was rejected by the workers’ compensation insurer of his employer at the time of the accident.

2. [2]

   The appellant commenced proceedings in the Workers Compensation Commission for an adjudication of the dispute. On 5 July 2019 an arbitrator dismissed his claim, making an award in favour of the respondent. The appellant lodged an appeal from that decision, which was determined by the President, Judge Phillips, on 11 February 2020. The appeal was dismissed.

3. [3]

   On 17 March 2020 the appellant commenced a further appeal in this Court, against the determination of the President.

Jurisdiction of this Court

1. [4]

   The right of appeal to this Court is conferred by s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). The right of appeal is conferred on a party to proceedings before the Commission as constituted by a Presidential member who is aggrieved by “a decision of the Presidential member in point of law”. The constraint on the right of appeal to one in point of law prevents this Court from reviewing findings of fact made by the Commission. Given that the dispute before the Commission turned entirely upon findings based on the medical evidence, the respondent contended that the appeal to this Court must fail.

2. [5]

   That would be so if the Court were asked merely to review the factual findings of the arbitrator, as confirmed by the President. However, that is not the function sought to be invoked by the appellant. Rather, the appellant asserts that the President erred in law in failing to accept that the errors identified by the appellant before him fell within the scope of his function to intervene in the case of established error.

3. [6]

   Such a ground of appeal was available because the President was not limited to correcting errors of law. The right of appeal from an arbitrator to a Presidential member of the Commission is conferred by s 352(1) of the Workplace Injury Act. The nature of the appeal is identified in the following provisions:

4. [7]

   It is clear from the first sentence in subs (5) that an appellant may assert “any error of fact, law or discretion”. The second sentence of subs (5) indicates that the appeal is not to be a fresh proceeding in which the Presidential member may reach his or her own decision, whether or not error has been established on the part of the arbitrator. However, nor is the function so described an appeal in the strict sense, in that the Presidential member may accept fresh evidence and further evidence in addition to or substitution for that received by the arbitrator: subs (6).

5. [8]

   The scope of the appeal available under s 352 does not depend upon nice distinctions between facts, law and discretion; rather, these three terms encompass the full range of functions exercisable by an arbitrator. The most important word is “error”. By requiring satisfaction as to the existence of an error, s 352 precludes a Presidential member upholding an appeal merely on the ground that he or she thought a different outcome was to be preferred. [1]

6. [9]

   The existence of an error of fact, law or discretion is a matter to be determined by the Presidential Member, not by this Court. Thus, the appellant must establish in this Court not merely that there was an error on the part of the arbitrator, but that the President erred in point of law in determining that there was not.

7. [10]

   Against this background, it is convenient to turn to the errors relied upon, before considering how they should be characterised.

Evidence before arbitrator

1. [11]

   The evidence before the arbitrator comprised a statement by the appellant, dated 7 April 2017, and a volume of medical reports, notes and related documents. It is convenient to set out some passages from the statement of the appellant, who was not cross-examined. First, he described the accident on the morning of 10 April 2012. The appellant was carrying a toolbag which weighed about 15kgs as he entered a warehouse through a side door. The inside area was unlit. As he entered, he tripped over a block of wood which was used to prop the door open for couriers during the day. [2] His explanation continued:

2. [12]

   Secondly, he described the aftermath. He was off work for about three weeks. When he returned he had pain in his right knee and wrist and lower back. He described his attempt to return to his preinjury duties, explaining:

3. [13]

   He also said he experienced “pain and stiffness in my neck and across between my shoulders.” [3] He said that his right leg and back were his main problems at that time.

4. [14]

   He was referred to an orthopaedic surgeon for surgery on his right knee in July 2012. He returned to work in November 2012, on light duties. In October 2013 his condition had not greatly improved and he underwent further surgery on his right knee. He continued to experience “regular pain in my lower back with shooting pain and occasional numbness into my right leg.” [4] His account of that time continued:

5. [15]

   The appellant underwent surgery for decompression of the spinal cord and fusion of three vertebrae in June 2014. He underwent further surgery in July 2015.

6. [16]

   The later medical history was confirmed by reports obtained from Dr New and Dr Farey. In a report dated 17 April 2014 Dr New reported to the appellant’s general practitioner that he was concerned about “the commencement of myelomalacia leading towards cervical myelopathy.” He continued:

7. [17]

   Dr Farey saw the appellant in May, reporting to his general practitioner on 15 May 2014. Dr Farey described the appellant’s condition in the following terms:

8. [18]

   In his report of May 2014 Dr Farey described the medical imaging as follows:

9. [19]

   The history taken by Dr Farey, which was consistent with other medical histories in evidence, was that the appellant had not complained of the symptoms in his neck and arms until some six months before he saw Dr Farey, that is in late 2013. However, on 21 August 2014, a few days after seeing the appellant, Dr New prepared a detailed report for the appellant’s solicitors. In relation to a specific question as to whether his employment had been a substantial contributing factor to his injuries or had aggravated these injuries, Dr New expressed no doubt that there was a causal link between the accident during employment and his knee pathology. He continued:

10. [20]

    A number of issues arose from this material. First, there is no doubt that his myelomalacia had been identified in mid-2014. Secondly, in August 2014 Dr New referred to “minor neck discomfort” existing at an indeterminate time after the accident. Dr Farey recorded a history of such pain from late 2013, some 18 months after the accident. Thirdly, Dr New made no comment in relation to any causal link between the cervical spine condition and the accident.

11. [21]

    Dr Farey provided further reports to the appellant’s solicitors on 25 September 2014, and again on 31 October 2014. These reports were largely confined to describing the appellant’s ongoing treatment.

12. [22]

    A critical element in the appellant’s case was a report prepared by Dr Farey on 2 August 2018. The first two-thirds of the report set out the background; the last one-third contained Dr Farey’s “opinion”. There were three passages of significance in the first part. Referring to the history obtained from the appellant, Dr Farey noted:

13. [23]

    By way of further explanation, Dr Farey continued:

14. [24]

    Thirdly, Dr Farey noted that an MRI of the cervical spine dated 4 February 2014 had revealed “the presence of significant spinal cord compression at the C5/6 level underlying myelomalacia which reflects damage within the spine cord.”

15. [25]

    There were three features of this explanatory material and history which were notable. First, Dr Farey had a copy of the appellant’s statement of 7 April 2017. It seems likely that this was the source of the statement that the appellant had experienced numbness in his right leg. That account appeared in his statement prior to his referral for surgery on his right knee in July 2012 (that is within two or three months of the accident).

16. [26]

    Secondly, the description of cervical spinal cord compression as a “painless condition” was capable of explaining any failure to report (on the part of the appellant) and to diagnose (on the part of the medical experts) cord compression at the C5/6 level at an earlier time. Thirdly, the reference to MRI reports of 5 February 2014 demonstrated objectively the existence of the spinal cord compression with myelomalacia.

17. [27]

    Dr Farey’s statement of opinion may be broken into several parts. The first part read as follows:

18. [28]

    The second passage in the opinion read as follows:

19. [29]

    The third passage in the opinion was as follows:

20. [30]

    The fourth passage read as follows:

21. [31]

    The first sentence in this passage identified a causal link between the accident and the “further problems in his cervical spine”; the second sentence stated that the symptoms which had earlier been described as “very common symptom[s] of spinal cord compression” were “indicative of” exacerbation of his underlying degenerative condition. The last statement provided a clearer opinion of a causal relationship amounting to “exacerbation” of the underlying degenerative condition.

22. [32]

    The passage which has been left out of the last extract read as follows:

Proceedings before arbitrator

1. [33]

   The appellant claimed before the arbitrator that he suffered from two parallel pathologies. One was the underlying cervical spondylosis; the second was the more serious pathology revealed by the MRI scan of 5 February 2014. The arbitrator was taken through Dr Farey’s opinion of 2 August 2018. Counsel then summarised the appellant’s case as follows: [5]

2. [34]

   Counsel accepted before the arbitrator that the appellant’s case stood or fell on Dr Farey’s opinion of 2 August 2018. [6]

Arbitrator’s reasons

1. [35]

   The arbitrator identified the submissions made to him briefly in the following terms:

2. [36]

   The arbitrator then set out in careful detail the evidence given, including a summary of the applicant’s statement and of the numerous medical reports. The first passage in the section headed “Discussion and finding”, with which the appellant took issue, was in the following terms:

3. [37]

   The appellant challenged this passage as revealing an incipient misunderstanding of Dr Farey’s opinion. He submitted that Dr Farey’s opinion did not turn on the appellant’s account of when particular symptoms developed, but on the fact that myelomalacia was an acute condition which required a trauma in order to develop. Further, this passage provided the first indication that the arbitrator might reject the appellant’s evidence as to the history of his symptoms.

4. [38]

   The latter aspect of the reasoning was developed by the arbitrator:

5. [39]

   The arbitrator then stated:

6. [40]

   This last proposition appears to have involved a factual error in that the complaint of neck pain to his general practitioner occurred some two years before the accident, not three weeks. However, the appellant said in his statement that the pre-injury pain had not been incapacitating and had been nothing like the pain following the accident. If much were to be made of this material by the respondent, it behoved the respondent to cross-examine the appellant. That did not happen. The arbitrator continued:

7. [41]

   The arbitrator then referred to Dr Farey’s report of 2 August 2018, concluding:

8. [42]

   The first sentence of par 79 suggested that the intention to treat the appellant’s evidence with “caution” had crystallised into non-acceptance. However, the appellant’s submissions in this Court did not focus on that factor, but rather relied on the fact that the arbitrator had treated with that evidence as a basis for submitting that the arbitrator had misunderstood Dr Farey’s opinion. Accordingly, it is necessary to note the manner in which the arbitrator dealt with Dr Farey’s opinion.

Appeal to President

1. [43]

   The grounds of appeal to the President, as set out in the appellant’s written submissions in the Commission, relevantly raised two principal issues, set out in grounds 3 and 4. The first read:

2. [44]

   The second read:

Reasoning of the President

1. [45]

   The President dealt with ground 3 at [68]-[76] of his decision. [8] He commenced by noting that ground 3 was “not well expressed.” [9] He identified the ground in the following terms:

2. [46]

   Further, at [70], the President stated:

3. [47]

   The appellant raised two issues in relation to this approach to ground 3. First, he noted the description of myelomalacia being identified “as if a fact, as being an injury to the spinal cord.” (The emphasis was in the President’s reasons.) The arbitrator did not suggest there was not such an injury: indeed, the appellant submitted, Dr Farey had identified the injury by reference to the MRI of 5 February 2014 which revealed “the presence of significant spinal cord compression … with underlying myelomalacia which reflects damage within the spinal cord.”

4. [48]

   Despite the appellant’s submission that these passages suggested a misunderstanding on the part of the President as to the appellant’s case, it seems more likely that the President was not suggesting that there was only one condition established, but that he understood the appellant’s submission to have used the term “injury” in its defined sense in the Workers Compensation Act 1987 (NSW), namely “personal injury arising out of or in the course of employment”; the relationship to his employment was undoubtedly contested. Consistently with this reading, the President accepted that the arbitrator had dealt with two separate conditions, stating:

5. [49]

   The second complaint made by the appellant of [68] in the President’s reasons related to the final sentence, namely that the appellant’s “core submission”, if followed, “would have led inexorably to the conclusion that the myelomalacia or an injury to the spinal column had been suffered by Mr Cruceanu.” The appellant submitted that that was not what had been put to the President. The appellant acknowledged, both in this Court and in the Commission, that an evaluative judgment was required based on Dr Farey’s report. His complaint about the reasoning of the arbitrator was that there had been a failure to deal with the report in its terms. That was not “an error of fact” as the President opined, but an example of procedural unfairness in the sense of a failure to address the critical argument presented by the appellant.

6. [50]

   The dispositive reasoning of the President on ground 3 was as follows:

7. [51]

   The appellant’s critique of these propositions accepted that the President had reasoned in the same way as the arbitrator, but submitted that the President had thereby committed precisely the same error. Thus, the President referred to counsel’s submission as intended “to explain away the absence of any relevant complaint of neck symptoms for a significant period of 18 months after the injury.” He then referred to the appellant’s evidence of “actual neck pain” gradually developing since the accident. Read in context and having regard to the arbitrator’s reasoning, the terms “neck symptoms” and “actual neck pain” must be understood as having the same point of reference, namely neck pain.

8. [52]

   The juxtaposition of these statements, and the reference to the submission for the appellant being in “contradistinction” to the appellant’s own evidence makes it hard to be sure what precise point was being made. The reference to the arbitrator approaching the evidence in the “conventional way” referred back to the submission at [68] that he had sought to ascertain the origin or timing of complaints of pain to doctors.

9. [53]

   While the President referred to Dr Farey’s evidence that spinal cord compression was a “painless condition”, he did not reconcile that opinion with the complaint that the arbitrator had approached the case by looking for complaints of relevant pain. How the absence of complaints of pain would assist in determining the cause of a painless condition was not explained.

10. [54]

    More problematic, however, in the appellant’s submission, was the failure to address the repeated statements by Dr Farey that “[n]eck pain is secondary to underlying cervical spondylosis”, and as to “neck pain secondary to underlying cervical spondylosis.” Dr Farey contrasted the neck pain (which he treated as irrelevant to myelomalacia) with the reports of numbness and paraesthesia. (The latter term appears to have been the medical description of the “stiffness and the numbness in my hands and fingers” and “losing the feeling in the last two fingers of each hand”, as described by the appellant in his statement.) It was this evidence upon which Dr Farey based his opinion. The appellant’s challenge in ground 3 was that the arbitrator had failed to understand the central premise of the appellant’s case; in this Court, the appellant challenged the President’s failure to understand and determine the primary basis of the appellant’s appeal.

11. [55]

    Ground 4 took issue with the arbitrator’s description of Dr New’s failure to opine on any causal link between the myelomalacia and the accident as “possibly wittingly”. As the President correctly noted, at [81]:

12. [56]

    That was indeed how the appellant sought to challenge this aspect of the arbitrator’s reasoning. In short, the arbitrator appeared to have substituted a negative opinion for an absence of opinion. The President appears to have accepted this reasoning:

13. [57]

    The appellant submitted that the President had (correctly) accepted that Dr New had expressed no opinion and the suggestion that he held a negative opinion constituted “speculation”. That was an erroneous approach, but the President then dismissed it as immaterial because it “cannot alter the result.” The reason why it could not alter the result was that, far from weighing a negative opinion of Dr New against the positive opinion of Dr Farey, the arbitrator had already dismissed Dr Farey’s opinion as based on “factual assumptions” which had not been made out. Absent acceptance of Dr Farey, the views of Dr New, whether negative or agnostic, could not affect the outcome.

14. [58]

    The underlying logic of this approach was accepted by the appellant: he conceded that acceptance of Dr Farey was central to his case. In other words, if he did not succeed on ground 3, he could not obtain a rehearing. If he did succeed on ground 3, there would need to be a rehearing which should not be affected by the arbitrator’s “speculation” as to whether Dr New’s agnostic opinion should be understood as a negative opinion.

Error in point of law

1. [59]

   In Dranichnikov v Minister for Immigration and Multicultural Affairs [10] Gummow and Callinan JJ stated:

2. [60]

   Kirby J, in considering the difference between jurisdictional and non-jurisdictional error said that:

3. [61]

   Hayne J in Dranichnikov agreed with Gummow and Callinan JJ that the applicant was not accorded natural justice because the Tribunal “did not consider the claim which the applicant was then making, and had earlier made, for protection.” [11] Gleeson CJ, who dissented as to the outcome, but not as to matters of principle, [12] was not persuaded that the Tribunal “misunderstood Mr Dranichnikov’s case, or failed to address it.” [13]

4. [62]

   The authors of Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, [14] have been exercised as to the scope of these statements in Dranichnikov. They state:

5. [63]

   On one view, that may be a false question; in most statutory contexts it may readily be inferred that when legislation creates a forum for considering applications, or resolving disputes, the body hearing the matter will be obliged to consider (and rule upon) the claims articulated by the applicant (and the respondent). The content of any application is itself therefore a mandatory consideration.

6. [64]

   The appellant’s argument before the President in this case identified a question as to the arbitrator’s decision which fell squarely within the parameters identified in Dranichnikov. However, it was not necessary for the President to be satisfied that a question of law arose because his powers of intervention were engaged if satisfied that any error of fact, law or discretion had occurred. However, to interfere with the decision of the President, this Court must be satisfied that he has made an error in point of law. On the appellant’s case, the error of the President was of the same kind as that made by the arbitrator, which was actually an error in point of law. Further, it was contended that because the President failed to recognise that any error had been made by the arbitrator, if this Court were satisfied that the arbitrator had committed an error, whether legal or factual, it should also be satisfied that the President, in failing to identify the error, had erred in law.

7. [65]

   The latter proposition should not be accepted in those terms. The President can determine factual issues without committing any error in point of law: the reason for failing to identify a factual error will be critical in identifying legal error. It will constitute legal error if it amounted to a failure to deal with the applicant’s case on the evidence.

8. [66]

   It must be accepted that Dr Farey’s opinion, expressed in his report of 2 August 2018, was a fact; the evidence of the fact was his report and the precise nature of the opinion was a factual inference to be derived by reading the report. The report was not a legal document, the construction of which could involve a question of law. Further, it might not be open to an applicant to complain on an appeal to a Presidential member that an arbitrator had erred in his or her understanding of a medical report if the particular reading contended for by the applicant had not been clearly articulated, unless, perhaps, there was only one reading reasonably available.

9. [67]

   On the appellant’s case in this Court, and before the arbitrator, Dr Farey opined as to two matters, namely that (i) the appellant suffered from a condition, myelomalacia, which was distinct from the underlying degenerative condition, cervical spondylosis, and (ii) neck pain was a symptom of the latter, but not the former.

10. [68]

    The President formed the view that the arbitrator was well aware that there were two separate conditions identified by Dr Farey in his report. That reading was open, based on the arbitrator’s reasons. However, that distinction was less important than the correct identification of the symptoms of each. Both the arbitrator and the President treated neck pain as a symptom of myelomalacia. That was a reading of Dr Farey’s report which was not available. An important, and possibly critical, point of distinction identified by Dr Farey was that the neck pain was an indication of the underlying degenerative condition, not the condition which he attributed to the accident. Nor could it be said that there was no complaint of neck pain until 18 months after the accident; consistent with its attribution to the underlying degenerative condition, there was a record of a complaint of neck pain in the appellant’s general practitioner’s notes of 2010, two years before the accident.

11. [69]

    Although the President noted the reliance placed on Dr Farey’s description of “the spinal cord compression as being a ‘painless’ condition”, at [73], he did so only to identify it as an explanation for the lack of relevant complaints of pain in the medical records in the immediate aftermath of the incident. The President did not address the substance of submission, namely that it explained the internal consistency of Dr Farey’s opinion, namely that spinal cord compression was a possible consequence of the trip and fall, despite the absence of contemporaneous complaints of pain. The President thus failed to address a central challenge to the arbitrator’s reasoning, being a claim based on a medical opinion, which in turn, contrary to the arbitrator’s reasoning, did not turn on an unproven factual premise. This involved an erroneous view of the facts; but it was also a failure to come to terms with the primary basis of the appeal from the arbitrator.

12. [70]

    Thus in rejecting the appeal, the President adopted the same misunderstanding of Dr Farey’s evidence as to the significance of neck pain, and its absence. The point had been raised in clear terms by the appellant in submissions to the arbitrator set out at [33] above. To misconceive and fail to address the primary basis of the appeal was a failure to address a mandatory consideration and a constructive failure to exercise the function conferred by s 352(1) of the Workplace Injury Act.

13. [71]

    The appellant’s complaint of error in point of law on the part of the President should therefore be upheld. However, contrary to the President’s understanding of the appellant’s case, it does not inexorably follow that the appellant is entitled an award. The conclusion that the arbitrator erred in this respect (an error which was not detected by the President and was repeated) merely means that the application before the Commission has not been determined according to law. Accordingly, the matter must go back to an arbitrator for reconsideration.

Remittal

1. [72]

   Because an order of remittal is appropriate, it may be helpful to identify a further concern which was considered in the course of the hearing in this Court, but which is not determinative of the appeal.

2. [73]

   As is apparent from the extracts from the appellant’s statement set out above, the appellant had identified numbness in his hands and paraesthesia “in the weeks following the accident”. [15] This evidence was clearly important, and arguably critical, to Dr Farey’s opinion as to the relationship between the myelomalacia and the accident. The manner in which the arbitrator dealt in a cascading fashion with his concerns as to the reliability of the appellant’s evidence have been set out above. They appear to have found their resting point in a conclusion that the “factual assumptions” upon which Dr Farey founded his evidence had not been proved. [16] The factual assumptions are not identified in that paragraph, but they may have related to the neck pain and the “right-sided paraesthesia” referred to by the arbitrator at par 74. At par 70, the arbitrator had referred to the appellant’s evidence of “the onset of neck pain shortly after the incident”, and said that this was difficult to reconcile with “absence of complaint of neck pain in the medical record over a period of 18 months”: par 71.

3. [74]

   Apart from illustrating the primary error, these findings appear to involve a rejection of the unchallenged evidence of the appellant. If the suggested inconsistency were to be relied on, it would generally be procedurally unfair for a fact-finder to reject unchallenged evidence of a party unless the party had been given an opportunity to explain or rebut the apparent inconsistency.

4. [75]

   The President seems to have been alert to a possible problem in this regard. There was a challenge before the President to an aspect of the reasoning in the arbitrator’s par 79, which was not pursued on appeal. However, the President stated in relation to that paragraph:

Orders

1. [76]

   I propose the following orders:

   1. (1)

      Allow the appeal and set aside the determination by the President of Workers Compensation Commission given on 11 February 2020.

   2. (2)

      Set aside the award made by the arbitrator in the Workers Compensation Commission on 5 July 2019.

   3. (3)

      Remit the matter to the Commission to determine the appellant’s application to resolve a dispute according to law.

   4. (4)

      Order that the respondent pay the appellant’s costs in this Court.

2. [77]

   MEAGHER JA: Although the appellant’s work accident occurred on 10 April 2012, his current claim, for lump sum compensation for injury to his cervical spine, was not made until 28 April 2016 and following earlier notifications of injuries to his lumbar spine and cervical spine arising from that accident. The workers’ compensation insurer disputed those earlier notifications, as well as that application for lump sum compensation.

3. [78]

   The evidence in support of the application included a statement of the appellant dated 7 April 2017 and a medical report of Dr Ian Farey, a specialist in orthopaedic spinal surgery, dated 2 August 2018. Dr Farey first saw the appellant in May 2014, on the recommendation of Dr Charles New, and performed “anterior decompression and fusion” surgery at the C5/6 level of his spine on 11 June 2014. Dr Farey wrote several letters in the period between that surgery and August 2018 in the form of reviews of the appellant’s cervical spine condition to his general practitioner or reports to his solicitors.

4. [79]

   On 5 July 2019 the Commission, constituted by an arbitrator, dismissed the appellant’s claim, making an award for the respondent “in respect of the allegation of injury to the applicant’s neck”. On 11 February 2020, the applicant’s appeal from that determination to the Commission constituted by the President, Judge Phillips, was dismissed. The appeal to this Court is from that order, and brought under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353. The subject matter of such an appeal is limited to “a decision of the Presidential Member in point of law”. That decision need not be separately identified, but must be at least implicit in the ultimate decision of the Commission: see Watson v Qantas Airways Ltd (2009) 75 NSWLR 539; [2009] NSWCA 322 at [104] (Basten JA); and generally Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [73]-[75] (Sackville AJA).

5. [80]

   It is submitted by the appellant in this Court that the arbitrator, when dealing with his claim, and the President, in dealing with ground 3 of the appeal from the arbitrator’s decision, proceeded upon a reading of Dr Farey’s August 2018 report which was not available, with the result that there was a failure to address his claim that the work accident caused or contributed to his condition of myelomalacia (softening of the spinal cord). That condition was first referred to by Dr Farey in his report to the appellant’s treating doctor (Dr Kodsi) dated 15 May 2014.

6. [81]

   Specifically, it is said that in his report of 2 August 2018, Dr Farey opined as to two matters, namely (1) that the appellant’s conditions of myelomalacia and cervical spondylosis were separate conditions which might arise independently, and (2) that neck pain was a symptom of the latter, but not of the former. It is then contended that by treating neck pain as a symptom of myelomalacia the arbitrator and the President adopted a wrong reading of Dr Farey’s report; and that in doing so they failed to understand the essential premise of the appellant’s claim, resulting in a constructive failure to address it.

7. [82]

   In making the same error as the arbitrator, it is said that the President, as had the arbitrator, erred in point of law, the latter by failing to respond to a substantial, clearly articulated argument and the former by failing to identify that error: as to which see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.

8. [83]

   For the reasons which follow, I do not consider that the arbitrator did not understand or failed to address the appellant’s case based on Dr Farey’s report; or that the President equally erred in not concluding that the arbitrator had misunderstood or failed to address that case. Dr Farey’s opinion that the myelomalacia may have been directly caused by the work accident did not depend on whether neck pain was a symptom of that condition once developed. It depended on whether there had been an acute spinal cord injury that was capable of causing that condition to develop acutely, which may have been the case if, as Dr Farey’s opinion assumed, the appellant experienced neck pain following the accident.

Disposition of the appeal

1. [84]

   It is convenient to start with the argument put to the President. That argument is partially identified at [43] in Basten JA’s reasons. In full it was:

2. [85]

   In essence the argument made is that there was a “failure to deal with a core submission” because the arbitrator had misunderstood the appellant’s case. That case was that in Dr Farey’s opinion the appellant’s myelomalacia (which in para 15 of the argument is equated with “cervical spine cord compression”) was a painless condition. It followed that, in addressing the question whether that condition was due to the work accident, it was “erroneous” and irrelevant to ask whether there was a complaint of neck pain following the accident.

3. [86]

   As will be seen, that submission overlooks two aspects of Dr Farey’s opinion. The first is that for myelomalacia to develop acutely (as distinct from as a result of the exacerbation of the appellant’s pre-existing cervical spondylosis) there had to be an “acute spinal cord injury”. The second is that Dr Farey’s opinion that the work incident may have caused “further problems to his cervical spine” depended on the assumption that the appellant had experienced neck pain following the accident.

4. [87]

   At [68] of his reasons the President summarised his understanding of the submission:

5. [88]

   That is in my view an accurate exposition of the articulated argument, which does not misstate or misunderstand the appellant’s submission. It shows that the President was alive to the appellant’s complaint that the case before the arbitrator that was not dealt with was or included that Dr Farey’s opinion involved two distinct conditions, and that the second condition, myelomalacia, or spinal cord compression, was a painless condition.

6. [89]

   The President’s disposition of the argument insofar as it concerned the failure to address two “parallel pathologies” appears at [72]:

7. [90]

   Basten JA concludes (at [68]) that “the view that the arbitrator was well aware that there were two separate conditions identified by Dr Farey in his report... was open, based on the arbitrator’s reasons”. I agree with that conclusion. For that reason this aspect of the President’s decision involved no error of law.

8. [91]

   At [73]-[76], the President then dealt with the argument concerning the arbitrator’s asserted misunderstanding of the significance of neck pain:

9. [92]

   Paragraph 73 is another accurate rearticulation of the appellant’s submission to the arbitrator. Paragraph 76 is a conclusory assertion, accompanied by an unfortunate, but presently immaterial, remark by the President.

10. [93]

    Paragraphs 74 and 75 contain the President’s reasoning as to why the arbitrator’s conclusion involved no error, and thus are critical. At the same time they are regrettably brief, to the point of obscurity. However, inadequate reasons in this respect is not relied upon in this Court as an error in point of law on the President’s part.

11. [94]

    Those paragraphs seize on the background against which a possible relationship of causation between the accident and the myelomalacia came to be expressed by Dr Farey in 2018, after he had been treating the appellant’s cervical spine condition for over 4 years. They fall to be considered in circumstances where the appellant’s evidence extracted by the President at [44] was rejected by the arbitrator on the basis that the “evidence from the medical record is entirely consistent with the applicant’s assertion to Dr Farey at his initial consultation that his neck pain commenced some six months before the consultation in May 2014” (Arbitrator’s Reasons at [74]). That finding of fact, made in circumstances where the appellant did not give oral evidence and was not cross-examined before the arbitrator, also did not form any part of the appellant’s case as to there being material legal error in the decision of the President.

12. [95]

    To understand the way in which the arbitrator approached and dealt with the claim, it is necessary first to refer to the appellant’s evidence and to the earlier opinions and reports of Dr Farey and Dr New.

13. [96]

    The appellant’s evidence at para 28 of his statement of 7 April 2017, which was part of the material provided to Dr Farey for the purpose of preparing his August 2018 report, was:

14. [97]

    In his letter to Dr Kodsi of 15 May 2014, Dr Farey stated that the appellant had “experienced intermittent neck pain for a period of six months” and that his symptoms of “neck pain and numbness in his upper limbs” were “secondary to cervical spondylotic myelopathy” which required surgery, namely “anterior decompression, stabilisation and fusion at the C5/6 level”. He also noted that the MRI of the appellant’s cervical spine revealed the presence of “retrolisthesis at C5/6 with cord compression and myelomalacia”. The radiologist’s report of that MRI concluded that there was “mild cord compression at the C5/6 level”. Following that anterior decompression and fusion surgery, and based on a further MRI conducted “in the post-operative period”, Dr Farey reported the “presence of canal narrowing at the C5/6 level, but no anterior cord indentation, which was present prior to surgery. There was no evidence of [ongoing] myelomalacia.”

15. [98]

    On 21 August 2014, Dr New wrote to the appellant’s solicitors following a consultation with the appellant two days earlier. The documentation provided to him included Dr Farey’s letter of 15 May 2014 and the post-operative MRI of the appellant’s cervical spine. Dr New diagnosed the appellant as having “C5/6 early cervical myelopathy”, noting Dr Farey’s earlier opinion that his compression of his spinal cord at C5/6 “was very severe” and “too great to ignore”.

16. [99]

    Dr New’s summary of Dr Farey’s diagnosis was confirmed by Dr Farey’s report to the appellant’s solicitors dated 25 September 2014. He diagnosed the appellant as having “developed symptoms of cervical spondylotic myelopathy (spinal cord compression)” as a result of which he advised him to undergo surgery. His investigations had revealed that the appellant’s “spinal canal was narrow on a congenital basis” and “the presence of retrolisthesis at the C5/6 level with cord compression and myelomalacia”. He concluded that the appellant’s symptoms were “secondary to retrolisthesis and cervical spondylosis [the appellant’s underlying condition]”. As such, Dr Farey’s initial opinion in September 2014 was only consistent with the appellant’s myelomalacia being an aspect of his underlying degenerative spinal condition (cervical spondylosis) and the result of the compression of his spinal cord at C5/6.

17. [100]

    Dr Farey continued over time to review the appellant’s condition, with the benefit of MRI and CT scans. In June 2015, he recommended that the appellant undergo further surgery, namely a posterior C5/6 lamino-foraminotomy stabilisation and fusion. That surgery was performed on 15 July 2015. With the benefit of post-operative x-rays, Dr Farey reported to Dr Kodsi that the appellant continued to have “the residual effects of his documented spinal cord compression which is producing impairment of hand function and numbness” (by letter dated 11 December 2015) and that his current symptoms of “significant neck pain and paraesthesia related to the central three fingers of the left hand” remained “secondary to his previously documented spinal cord compression and associated damage, as he did have myelomalacia within the cord at the time of presentation” (by letter dated 17 June 2016).

18. [101]

    Dr Farey’s medical report of 2 August 2018 provides an opinion based on a history of symptoms (being that reported by the appellant in his statement of 7 April 2017) different from that which the appellant reported to Dr Farey in May 2014.

19. [102]

    In his letter, Dr Farey records that the appellant’s later statement reported that “following the accident... he developed significant back and lower limb pain. Importantly he also reported numbness in his leg. This occurred on a regular basis” and that “[s]hortly following the accident he has stated that he developed neck and bilateral shoulder pain...”. That was to be contrasted with the position in May 2014 when the appellant had reported that his neck pain had spontaneously begun six months prior (that is, in late 2013, about 18 months after the accident). In passing, Dr Farey noted in his August 2018 report that he remained “uncertain as to the reason that the detailed history was not provided to me at the time of initial consultation other than the fact that [the appellant] was very distressed by his pain and loss of neurological function”.

20. [103]

    On those changed factual assumptions as to the symptomatic history, Dr Farey expressed his opinion on the question of injuries caused by the work accident. Before doing so, he made the observations extracted by Basten JA at [27], [28] and [29]. The first of those passages is wholly consistent with the position being, as recorded in Dr Farey’s earlier letters and opinions, that the compression of the spinal cord at the C5/6 level was a consequence of the appellant’s underlying cervical spondylotic myelopathy. The second of those passages, whilst recognising that myelomalacia within the spinal cord may develop acutely, acknowledges that “generally [that condition] develops with the passage of time secondary to spinal cord compression”.

21. [104]

    In that context, Dr Farey opined:

22. [105]

    This opinion, by the reference to the “tripping injury” causing “further problems in his cervical spine”, raises two possible relationships of causation between the accident and the appellant’s myelomalacia. In the light of Dr Farey’s earlier general observations about the development of myelomalacia, one possibility was that there had been “acute spinal cord injury” causing the myelomalacia to develop acutely. The other was that there had been an exacerbation of the appellant’s underlying cervical spondylosis, which exacerbation contributed to the development of his myelomalacia over time. Each of these previously unidentified possibilities is said to arise “in view of the [appellant’s] experience of neck pain following the accident”. Those two causal pathways correspond to the “Type of injury” alleged in the appellant’s Application to Resolve Dispute as “Injury and/or aggravation, acceleraton, exacerbation or deterioration of a disease”.

23. [106]

    The arbitrator dealt with these possibilities on the basis that each could only be made out if the facts on which Dr Farey’s opinion was based were established. Those facts included the appellant’s “experience of neck pain following the accident” together with “numbness” in his right lower limb. The arbitrator rejected what he referred to as “personal injury simpliciter” (a relationship of direct causation between the accident and the appellant’s myelomalacia which could only arise from an acute spinal cord injury) because the assumption underlying Dr Farey’s opinion, that the appellant had experienced neck pain following the injury (consistent with an acute injury to the spinal cord), was not made out (Arbitrator’s Reasons at [57], [75], [77]-[79]). The arbitrator rejected the argument as to indirect causation by exacerbation of the appellant’s existing cervical spondylosis because the assumption that there was a constellation of symptoms, including neck pain following the injury, was not made out (Arbitrator’s Reasons at [57], [58] and [74]).

24. [107]

    In each case the arbitrator’s finding of fact that the appellant did not suffer neck pain following the accident was dispositive. His rejection of that aspect of the appellant’s case was not based on any misunderstanding, but rather a rejection of his evidence, after taking into account the “medical record” (Arbitrator’s Reasons at [58], [70]-[74]).

25. [108]

    The arbitrator’s reasoning that an absence of neck pain following the accident meant that the appellant had failed to establish causation proceeded on an interpretation of Dr Farey’s report as saying that the experience of neck pain following the incident was a necessary element of the (acute) injury or exacerbation of injury claimed. That interpretation did not involve giving Dr Farey’s language any strained meaning, and was certainly an available one. In reaching that interpretation, the arbitrator did not misunderstand the appellant’s case. Nor did his analysis involve treating neck pain as a symptom of myelomalacia. The two possible relationships of causation were myelomalacia developing acutely as a result of an “acute spinal cord injury”, or developing over time due to spinal cord compression in turn resulting from cervical spondylosis, and perhaps a congenitally narrow spinal canal. Once caused, in either of those ways, it may be accepted that the condition of myelomalacia remained painless, although perhaps having other consequences over time.

26. [109]

    The arbitrator did not misunderstand the significance of neck pain in Dr Farey’s report, as a symptom of the condition of cervical spondylosis, as possibly indicative of the occurrence of an acute spinal cord injury, or as indicative of the exacerbation of the existing cervical spondylosis. Although Dr Farey says in the first of the passages extracted by Basten JA (at [27]) that generally speaking spinal cord compression (which I take to include myelomalacia caused by spinal cord compression) is a “painless condition”, he confirms that if the appellant was suffering from that condition he would nonetheless also have experienced neck pain secondary to his underlying condition.

27. [110]

    As to Dr Farey’s comments regarding “acute spinal injury”, the medical evidence, including that of Dr Farey, did not otherwise suggest that the appellant’s myelomalacia was the result of an acute spinal cord injury. Rather, it was detected early in its progression following Dr New’s examination of the appellant and the taking of various images of his cervical spine. The appellant’s own submission to the arbitrator was that his myelomalacia had “developed in a clandestine manner and presented itself on radiology [rather than as an acute presentation] and quite thankfully was picked up at an early stage”.

28. [111]

    The President did not err in concluding at [75] that the arbitrator was correct, in the light of Dr Farey’s opinion, to consider whether the appellant had experienced neck pain following the accident. In doing so he did not misunderstand or misapply Dr Farey’s opinion, or fail to address the appellant’s arguments made in reliance on that report.

Conclusion

1. [112]

   In my view, the appeal should be dismissed and the appellant ordered to pay the costs of the appeal.

2. [113]

   EMMETT AJA: This appeal is concerned with the meaning of a report furnished by Dr Ian Farey, an orthopaedic surgeon, in connection with a claim for compensation by the appellant, Mr Octavian Cruceanu (the Worker) under the Workers Compensation Act 1987 (NSW) (the Compensation Act). On 10 April 2012, the Worker sustained injury in the course of his employment with the respondent, Vix Technology (Aust) Ltd (the Employer). The Worker subsequently experienced symptoms in relation to his back and neck, which resulted in his undergoing decompression and fusion surgery to his neck performed by Dr Farey in 2014, with further fusion surgery performed by Dr Farey in 2015. The question was whether the Worker suffered injuries to his neck and back as a result of the work incident of 10 April 2012.

3. [114]

   On 5 July 2019, the Workers Compensation Commission of New South Wales (the Commission), through an arbitrator (the Arbitrator), determined that the Worker’s claim for permanent impairment compensation in respect of the allegation of injury to his neck should be dismissed. On 11 February 2020, the President of the Commission (the President), on appeal pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Management Act), confirmed the decision of the Arbitrator. By notice of appeal filed on 17 March 2020, the Worker appeals from the decision of the President. The appeal is limited to errors of law on the part of the President.

4. [115]

   The critical report by Dr Farey is dated 2 August 2018. It relevantly provided as follows:

5. [116]

   In his reasons for his decision, [17] the President observed that Dr Farey considered that it was entirely possible that the tripping injury had caused the further problems in the Worker’s cervical spine, being problems further than cervical spondylosis. His Honour said that it was not posited by Dr Farey, as asserted by the Worker, that there was a proven injury to the spinal cord. His Honour observed that, once Dr Farey indicated that the injury was “a possibility”, it was then open to the Arbitrator to make such a finding should the Worker discharge his burden of proof. His Honour said that the Arbitrator dealt with that issue specifically and found that the Worker had not established injury on the balance of probabilities and that, once the Arbitrator found that Dr Farey’s opinion was not satisfactory, there existed no expert support for the Worker’s complaint.

6. [117]

   In his notice of appeal to this Court, the Worker complains that those findings were not available on the evidence and therefore constituted errors of law. He says that the only rational findings of fact available in relation to Dr Farey’s report were that he had made a positive and definite diagnosis of spinal cord injury, or compression, leading to myelomalacia, as a diagnosis distinct and entirely different from the pre-existing cervical spondylosis causing intermittent neck pain and that failure to so find constitutes an error of law.

7. [118]

   The Worker asserts in his notice of appeal to this Court that those errors of law caused the decision of the President to miscarry in that his Honour conflated the two distinct diagnoses in the same way as the Arbitrator had and approved the same erroneous rationale applied by the Arbitrator, wherein the case on causation of injury to the neck was dependent upon acceptance of neck pain in the period immediately following the workplace incident.

8. [119]

   The Worker also asserts that he complained to the President that the Arbitrator had drawn an inference regarding the opinion of Dr New that was not available on any reading of Dr New’s report and was not put to counsel for the Worker by the Arbitrator and was contrary to comments made by the Arbitrator during dialogue with counsel for the Worker at the hearing before the Arbitrator. The Worker complains that the President failed to exercise the jurisdiction conferred by s 352 of the Management Act in finding, erroneously, that the inference regarding Dr New’s opinion could be dismissed and did not enliven the power to intervene on appeal to the President. The Worker asserts that the President should have held that the Arbitrator erred in drawing the inference referred to above, which was both a denial of procedural fairness and an error that enlivened the power to intervene.

9. [120]

   A preliminary question is whether an error in construing Dr Farley’s report is an error of law. In essence, the Arbitrator concluded that Dr Farey’s report stated that there were two possible pathologies apparent in relation to the Worker’s neck. One was the cervical spondylosis, which pre-existed the workplace incident in 2012. If the surgery and symptoms were related only to cervical spondylosis, and the workplace incident did not in any way exacerbate the cervical spondylosis, the Worker’s claim must fail. The alternative pathology is that the workplace incident gave rise to a compression of the spinal cord, which resulted in myelomalacia. If that were the case, then the Arbitrator erred in rejecting the Worker’s claim.

10. [121]

    Essentially, the Arbitrator concluded that, notwithstanding a statement made by the Worker in support of his claim for compensation, that he experienced symptoms shortly after the workplace incident, there was no evidence of any complaint by the Worker of relevant symptoms until more than 12 months after the workplace incident. The Arbitrator found, in effect, that, in the absence of symptoms, the workplace incident did not result in compression of the spinal cord. The Arbitrator construed Dr Farey’s report as saying that, in the absence of symptoms within a short time after the incident, the more likely the diagnosis was cervical spondylosis rather than compression of the spinal cord.

11. [122]

    A critical statement in Dr Farey’s report is that myelomalacia within the spinal cord does not develop acutely unless there is an acute spinal cord injury. Dr Farey made that observation after saying that the Worker had experienced numbness in his right lower limb from the time shortly following the accident in the absence of nerve root compression in the lumbar spine. He said that that numbness is likely to have arisen from the cervical spine and spinal cord compression that, he says, is a painless condition, other than neck pain, which is secondary to underlying cervical spondylosis.

12. [123]

    Dr Farey had no doubt that the Worker had pre-existing cervical spondylosis and had significant degenerative change at the C5/6 level, with a degree of instability. Dr Farey then observed that it was “entirely possible” that the workplace incident caused further problems in his cervical spine in view of the experience of neck pain “following the accident”, intermittent numbness in the right lower limb and “the subsequent development” of more advanced symptoms in the upper limbs, including numbness coupled with the presence of instability in the C5/6 level and the presence of myelomalacia was indicative of “an exacerbation of his underlying condition”, following the workplace incident. Those observations tend to suggest that it is possible that the workplace incident exacerbated the pre-existing spondylosis. It is quite unclear whether Dr Farey was expressing the opinion that, in the absence of complaint shortly after the workplace incident, it was unlikely that the workplace incident caused either the myelomalacia or exacerbation of the cervical spondylosis.

13. [124]

    The real question is whether the Worker’s submissions to the Arbitrator included a contention that the evidence supports the conclusion that, notwithstanding the absence of complaint by the Worker shortly after the workplace incident, there was a causal connection between the symptoms reported to Dr Farey as arising some 18 months after the incident and the occurrence of the workplace incident. If that is the contention that was fairly advanced, it is certainly arguable that the Arbitrator did not address or deal with that contention. That would be a failure to exercise jurisdiction and is properly covered by the grounds of appeal to this Court in so far as the President did not find that error on the part of the Arbitrator.

14. [125]

    I have had the advantage of reading in draft form the proposed reasons of Basten JA and Meagher JA. I agree with Meagher JA, for the reasons given by his Honour, that the President did not err in concluding that the Arbitrator was correct, in the light of Dr Farey’s opinion, to consider whether the Worker had experienced neck pain following the accident. I agree that, in doing so, the President did not misunderstand or misapply either Dr Farey’s opinion or fail to address the Worker’s claim made in reliance on that report.

15. [126]

    I agree with Meagher JA, for the reasons proposed, that the President was right to conclude that the case before the Arbitrator was decided on the basis that the factual assumption on which Dr Farey’s opinion was based was not made out and that any challenge to the President’s conclusion in that regard depends on challenging the Arbitrator’s interpretation of Dr Farey’s report, an interpretation that was plainly open. That is not a challenge to a decision on a question of law, and this Court has no jurisdiction to entertain such a challenge. I agree with the orders proposed by Meagher JA.