Iqbal v Hotel Operation Solutions Pty Ltd

HEADNOTE [This headnote is not to be read as part of the judgment] Between 2008 and 2010, the appellant, Mohammed Iqbal, was an employee of the respondent, Hotel Operation Solutions Pty Ltd, which provided labour hire for hotels. In October 2010, the appellant reported pain and pins and needles in his right hand and the right side of his neck. In 2012, the appellant obtained CT scans of the cervical and lumbar regions of his spine. The scan of his cervical spine showed disc protrusions with spinal cord compression. In 2016, a neurosurgeon performed an anterior cervical discectomy and fusion involving cervical discs. In November 2020, the appellant instituted proceedings in the Workers Compensation Commission alleging his injuries resulted from the nature and conditions of his employment. An arbitrator held that the appellant sustained injury to his cervical spine as a result of the nature and conditions of his employment pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (NSW). The arbitrator was not satisfied, however, that there was an employment-related injury to the lumbar spine. The appellant was referred to an approved medical specialist for an assessment of whole person impairment with respect to the cervical spine and consequential injuries. The appellant brought an internal appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"). In November 2021, Deputy President Snell confirmed the arbitrator's determination. On appeal, the primary issues were whether the Deputy President erred in failing to find that: (1) the arbitrator should have held that the appellant's employment caused the appellant's injuries pursuant to s 4(b)(i) of the Workers Compensation Act; (2) there was no evidence of pre-existing degenerative changes to the appellant's lumbar spine; (3) the appellant's report of foot pain in 2010 established that the condition was symptomatic during, and therefore caused by, his employment; and (4) the medical assessor had acted on the basis of an incorrect criterion. Held by Basten AJA (Brereton and Mitchelmore JJA agreeing), dismissing the appeal: As to issue 1 - categorisation of injuries (1) The appellant's submission that his injuries were "contracted" in the course of his employment and were not the aggravation of an existing degenerative condition turned on a categorisation of degenerative changes as "biological" and trauma-based changes as "pathological". However, the term "disease" in s 4(b) must be given its broadest meaning, which does not depend on its cause. The Deputy President correctly held that s 4(b) does not require, as a matter of law, the drawing of the proposed distinction: [40], [44]. Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34, applied. As to issue 2 - pre-existing degenerative changes (2) As to the submission that there was no evidence of any pre-existing degenerative condition, the appellant bore the burden of establishing an employment-related disease in his lumbar spine. He could not invert the onus of proof by asserting that there was no evidence of a pre-existing degenerative condition. Further, he could not rely on his own evidence to establish that there was no evidence of any pre-existing condition: [61]-[62], [64]. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, applied. As to issue 3 - contemporaneous evidence of foot pain (3) The existence and significance of a symptom involved a question of fact. An appeal only arises in point of law pursuant to s 353 of the Workplace Injury Act. This ground did not raise any point of law: [13], [68]. As to issue 4 - medical assessment certificate (4) The medical assessment certificate post-dated the proceedings in the Commission and could not be challenged in the appeal. In any event, there is no right of appeal to the Court of Appeal from the issue of a medical assessment certificate. An application to appeal can only be made to the President of the Commission pursuant to s 327 of the Workplace Injury Act: [71].

JUDGMENT

1. BRERETON JA: I agree with Basten AJA.
2. MITCHELMORE JA: I agree with Basten AJA.
3. BASTEN AJA: On 24 February 2021, the appellant, Mohammed Javed Iqbal, obtained a determination from the Workers Compensation Commission in relation to injuries suffered whilst employed by the respondent, Hotel Operation Solutions Pty Ltd. An arbitrator with the Commission upheld his claim with respect to an injury to his cervical spine, as a result of the nature and conditions of his employment, but rejected a claim with respect to injury to his lumbar spine. (Consequential injuries were accepted, including a gastrointestinal condition and scarring.) The deemed date of injury was 7 October 2010, being the last day of his employment with the respondent.
4. Being dissatisfied with the arbitrator's determination, the appellant lodged an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"). On 15 November 2021, Deputy President Snell made orders refusing the appellant's application to tender fresh or additional evidence and confirming the arbitrator's determination. [1] On 4 March 2022, the appellant filed (out of time) an appeal from the decision of the Deputy President, pursuant to s 353 of the Workplace Injury Act.
5. The respondent opposed an extension of time within which to appeal to this Court, but accepted that it had suffered no prejudice by the delay. The basis of the opposition was that no explanation had been provided for the delay and the grounds of appeal lacked merit.
6. After initially consulting lawyers, the appellant was unrepresented, both in the Commission and in this Court. A notice of intention to appeal was filed, albeit one day late. The notice of appeal was less than one month out of time. Further, although no explanation was given by way of evidence in the usual manner, the appellant did explain the difficulties he had had initiating the appeal process in his written submissions.
7. In the circumstances, the appropriate course is to grant an extension of time for the filing of the notice of appeal up to and including 9 March 2022 when the amended notice of appeal was filed.

Nature of appeals

1. The determination of the present appeal requires reference to the nature of the appeal from the arbitrator to a Presidential member, and the nature of the present appeal. For reasons which will become apparent shortly, the appellant's submissions disregarded the statutory scheme and, in particular, the limited nature of the appeal to this Court.

Internal appeal in Commission

1. An appeal from the decision of an arbitrator to a Presidential member was available pursuant to s 352 of the Workplace Injury Act, which, when the arbitrator made her determination on 24 February 2021, provided: 352 Appeal against decision of Commission constituted by Arbitrator (1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator. (2) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the procedural requirements of this section and any applicable Rules and regulations as to the making of an appeal have been complied with. The Registrar is not required to be satisfied as to the substance of the appeal. … (5) 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. … (6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case. (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. … … (8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
2. As the Deputy President noted, the transitional provisions under the Personal Injury Commission Act 2020 (NSW), which commenced on 1 March 2021, provided that he, being now a Presidential member of the Personal Injury Commission, was able to determine the appeal by exercising the same functions as would have been exercised by him as a Deputy President of the Workers Compensation Commission. [2] The key provisions relating to the nature of the appeal and the power to receive fresh or additional evidence have not, in any event, changed.
3. Importantly for present purposes, s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision "was or was not affected by any error of fact, law or discretion". The appeal "is not a review or new hearing". As the Deputy President correctly noted, and as this Court has held, [3] if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.

Appeal to this Court

1. Secondly, there is an important constraint on the nature of the appeal from the Deputy President to this Court. Again, it is desirable to set out the relevant provisions as they presently read: 353 Appeal against decision of Commission constituted by presidential member (1) If a party to any proceedings under the Workers Compensation Acts before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member in point of law, the party may appeal to the Court of Appeal. (2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit. … (5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
2. The important constraint is that the appellant must establish an error "in point of law" on the part of the Presidential member. Although the term "decision" is widely defined, and may include rulings, opinions or directions which are not themselves the final determination of the Commission, any error identified must be material in the sense that it would likely have affected the outcome of the appeal before the Presidential member. For example, a ruling as to the adducing of fresh or additional evidence, if demonstrated to be affected by an error in point of law, may be addressed on an appeal to this Court, although the appellant may not succeed if it is not shown that the error could have affected the outcome of the case.
3. There is one further aspect of s 353 which should be noted. The powers of this Court on the determination of an appeal appear to be limited. The primary power in s 353(2) is to "remit the matter" to the Commission. The Court may of course make any other order in relation to the appeal, which may include upholding or dismissing the appeal. What is less clear is whether this Court has power to determine "the matter" as it was in the Commission, once a relevant error in point of law has been upheld. It is not necessary, however, to answer that question in this case. For the reasons set out below, the Deputy President did not err in point of law in his determination of the matter before him.

Factual and procedural background

1. The appellant came to Australia from Bangladesh in 2006. Although he was a registered medical practitioner in Bangladesh, he has not been able to complete the professional requirements to allow him to practice in this country. In 2006-2008 he worked in the hospitality industry. On 10 October 2008, he commenced employment with the respondent, which appears to have been a labour hire company providing staff to hotels. Subject to a period of five or six months when he returned to Bangladesh (from March to 24 August 2009) he continued to work with the respondent until 7 October 2010.
2. Although the appellant reported pain and pins and needles in his right hand and the right side of his neck in October 2010, he did not pursue a claim for workers compensation at that time, but decided to undertake the Australian Medical Council examinations in order to qualify as a medical practitioner. He sat the relevant examination in March 2011, without success.
3. Apparently at the instigation of Centrelink, he sought further medical investigation of physical conditions constraining his work capacities and was referred by his general practitioner, Dr Abdalla, for a CT scan of his cervical spine. The scan, undertaken on 8 May 2012, showed a number of disc protrusions with spinal cord compression. He obtained a WorkCover certificate on 22 June 2012. On 11 July 2012 he lodged a claim form for workers' compensation with the respondent's insurers, but liability was then denied. Following a further referral by Dr Abdalla, on 24 September 2012 a CT scan was undertaken of his lower back.
4. Three sets of proceedings were instituted in the Commission, seeking weekly payments, medical expenses and lump sum compensation. The first, commenced in 2012, was struck out for want of prosecution. On 27 June 2016, a neurosurgeon, Dr Pope, performed an anterior cervical discectomy and fusion involving the C5/6 and C6/7 discs.
5. In 2019, the appellant commenced a second set of proceedings in the Commission, but these were discontinued by consent in June 2019. The current proceedings were commenced on 2 November 2020, seeking weekly compensation from 7 October 2010, medical expenses, and lump sum compensation in respect of the cervical spine, lumbar spine, surgical scarring and the digestive system.
6. The arbitrator upheld the appellant's claims with respect to all these items other than the claimed injury to the lumbar spine. The determination by the arbitrator read as follows: "1. The applicant sustained injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The deemed date of injury is 7 October 2010. 3. The applicant has not discharged the onus of establishing injury to his lumbar spine as a result of the nature and conditions of his employment with the respondent. There is an award for the respondent in respect of the lumbar spine. 4. The applicant sustained a consequential upper gastrointestinal condition as a result of the injury to his cervical spine."
7. The Commission then remitted the matter to the Registrar for referral to an approved medical specialist (AMS) for assessment of whole person impairment with respect to the cervical spine, skin (scarring) and digestive system (upper gastrointestinal tract).
8. In March 2021, the appellant lodged an appeal from the determination of the arbitrator, identifying the subject matter of the appeal as determination 1 (in part) and determination 3. The issue with respect to determination 1 was quite limited but requires reference to the definition of injury in the Workers Compensation Act 1987 (NSW), s 4. That definition relevantly provided at the deemed date of injury: 4 Definition of "injury" In this Act: injury: (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration….
9. The definition of "injury" was amended in 2012, [4] but that amendment did not apply to an injury received before 19 June 2012. [5] Accordingly, the definition set out above was applicable in this case, although it was also necessary to establish that the employment "was a substantial contributing factor to the injury", in accordance with s 9A(1) of the Workers Compensation Act.
10. Following the amendments in 2012, the definition of injury in s 4(b) now reads: 4 Definition of "injury" In this Act - injury - … (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration….
11. Section 9A no longer applies to a "disease injury". Although it was no part of the appellant's case, it may be noted that the arbitrator, at [210], adopted the current definition of injury, rather than that in force at the time the injury occurred. That appears to have been an error, given the transitional provisions referred to above. However, although the term "main contributing factor", which only appears in the current definition, was referred to on occasion, and in particular at [242] in the arbitrator's reasons, accepting that the injury in the cervical spine satisfied the definition of s 4(b)(ii), that language was not used in rejecting the claim with respect to the lumbar spine. The arbitrator posed the question requiring determination in relation to the lumbar spine as "whether there is a relevant causal relationship between the applicant's lumbar condition and the applicant's actual employment with the respondent": at [254]. Earlier, the arbitrator had noted the evidence of Dr Dias that, in his opinion, "employment was a substantial contributing factor to an injury of the lumbar spine": at [247]. This language reflected (correctly) the requirement in s 9A of the Workers Compensation Act.
12. The question of the appropriate definition was not raised before the Deputy President, however he expressly adverted to the need to apply the legislation as in force prior to the 2012 Amendment Act. [6] As will be explained below, the reasoning of the arbitrator in rejecting the claim with respect to the lumbar spine relied heavily on the absence of any contemporaneous record of a problem which might have been referrable to a condition in the lumbar spine at the time of his employment, or during the following two years. The arbitrator considered and rejected the appellant's evidence in his statement of September 2018 in that regard. The arbitrator did not, therefore, need to consider whether the employment was a "main contributing factor" under s 4, or a "substantial contributing factor" under s 9A, although, on the hypothesis that the 2012 amendments applied, s 9A did not. [7]
13. In those circumstances, although it appears that the wrong test may have been identified by the arbitrator, there is no reason to think that it was relied on adversely to the appellant. On the available material, it was not. Nor was the issue raised on the appeal to the Presidential member.

Issues on Appeal

1. The amended notice of appeal identified five numbered grounds, but deleted that which had been numbered ground 4. Accordingly, there were four grounds. The grounds were identified discursively.
2. On 7 May 2022, the appellant filed a further document entitled "grounds of appeal" comprising 13 typed pages, which might properly be treated as a submission. On 12 May 2022, he filed a further document entitled "my responses to important issues mentioned in the decision of Personal Injury Commission dated 12/05/22". It will be convenient to return to that document shortly: it does not relate to the decision of the Deputy President.
3. On 17 June 2022, the respondent filed written submissions, to which the appellant filed a reply on 12 July 2022. The reply explained somewhat more clearly the issues which the appellant was seeking to pursue, but it was not his final written document. On 25 July 2022, three days before the hearing of the appeal, he filed a further document entitled "my statement for the hearing of 28/07/2022". It was in the form of a further written submission and comprised some 10 pages.
4. Before turning to the substance of the issues, it is convenient to note that the appellant made an unsuccessful application for a referral for pro bono assistance. That request was denied by Meagher JA on the basis that none of the grounds of appeal identified any error in point of law on the part of the Deputy President in dismissing the appeal from the arbitrator. [8] In his written submissions, the appellant took issue with that conclusion and asked, rhetorically, on what basis such a conclusion could be reached given the "briefly outlined grounds". The answer is important. First, the grounds were not brief, they were detailed and discursive. Secondly, on their face they were entirely concerned with the evaluation of facts. As has been explained, that was primarily a question for the arbitrator, with a limited right of appeal to the Deputy President. Unless the Deputy President had misunderstood the extent or limitations on his power to review factual findings, or had applied a wrong legal test in some other respect, there would be no error in point of law with respect to his determination. The problem confronting the judge dealing with the interlocutory application was the same as that confronting this Court: not only was there no express identification of an error in point of law, there was no apparent understanding of the distinction between an error in point of law and other errors. The result is that this Court was called upon to identify at least one potential error in point of law in circumstances where nothing in the grounds of appeal, nor the multiple written documents filed in support of those grounds, even attempted to address the issue.
5. This difficulty was squarely raised with the appellant, more than once in the course of his oral submissions, but no clarity was achieved. The appellant was not legally trained and English was not his native tongue. Although the finer points of legal procedure were no doubt foreign to him, he was noticeably reticent in accepting and addressing what was put to him as a potentially fatal flaw in his appeal.

Ground 1: cervical spine - fresh injury or aggravation of existing condition?

1. The arbitrator's finding in determination 1 was that an injury had been sustained to the appellant's cervical spine as a result of the nature and conditions of employment, pursuant to s 4(b)(ii) of the Workers Compensation Act. That involved the aggravation of a disease where the employment was a contributing factor to the aggravation, but was not the cause of the disease. Ground 1 asserted that the arbitrator erred in failing to find that the nature and conditions of his employment had caused the disease, pursuant to s 4(b)(i).
2. On its face, the purpose of the challenge was obscure. The absence of apparent purpose suggested that the ground was either trivial, misconceived, or, in the light of the recent assessment of whole person impairment, immaterial. To address the last possibility, the respondent tendered the medical assessment certificate of 2 March 2022 for the limited purpose of demonstrating that, if error were found with respect to determination 1, there would be no utility in remitting the matter to the Commission. That was because the assessor was not satisfied that any reduction should be made on account of any pre-existing condition or abnormality, pursuant to s 323(1) of the Workplace Injury Act.
3. Given the favourable finding, the source of the appellant's complaint was not self-evident. On being asked in oral submissions as to the purpose of ground 1, he rather vaguely referred to its possible relevance to some claim available under federal law. However, it appeared from his statement of 25 July 2022, that he sought to link his claim in relation to an injury to the lumbar spine to his contention that there was no pre-existing condition affecting the cervical spine. The appellant stated: [9] "Most important issue is if I had degeneration in my cervical and lumbar spine before my work injury with respondent in 2009/2010. … I claimed to the arbitrator that there was no pre-existing degeneration in my cervical and lumbar spine. … If there was no degeneration in my cervical and lumbar spine before my work injury with respondent then only one factor is left which can cause my cervical and lumbar injury. That is the nature and conditions of my heavy manual work with respondent. Otherwise, from where the disc bulgings in the imagings of cervical and lumbar spine 2012 came?"
4. In addition, he sought to turn to his advantage the assessment of whole person impairment by relying on it as further evidence that there was no pre-existing condition. However, the mere existence of that further medical opinion did not demonstrate that the arbitrator had been in error, let alone that the Deputy President had erred in point of law.
5. The reasoning in the last passage set out above linking the cervical and lumbar spine conditions did not accord with the approach of the arbitrator. It was clear from her reasoning that she did not see the two conditions as causally related. Rather, the arbitrator found that, with the cervical spine, there was an exacerbation of a pre-existing condition, the exacerbation being caused by the employment. With respect to the lumbar spine, she concluded there was no evidence of employment-related injury.
6. The appellant's entirely factual submissions relied upon an opinion by Dr Guirgis to support his proposed finding that there was no pre-existing disease with respect to the cervical spine. However, the Deputy President pointed out that Dr Guirgis (who was not apprised of the need to apply the pre-2012 test) conflated the tests in subpars (i) and (ii) of s 4(b). The Deputy President stated: "90 Subject to issues of 'main contributing factor' (which did not apply) subs (i) of s 4(b) applied to a 'disease that is contracted by a worker in the course of employment', subs (ii) applied to the 'aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease' (emphasis added). Dr Guirgis, in the opinion on causation on which the appellant relies in this ground, has inappropriately conflated the tests in subss (i) and (ii) of s 4(b). The doctor's opinion was that the appellant had 'contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age-related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor within the meaning of s 4(b)' (emphasis added) …. The appellant submits that because the passage uses the word 'contracted' it requires a finding pursuant to s 4(b)(i) of the [Workers Compensation] Act. I do not accept that submission. The way in which Dr Guirgis expressed his opinion on causation, in respect of the cervical spine, was sufficient to support a finding that there was degenerative change which was aggravated. The arbitrator treated it as supporting her findings on injury to the cervical spine to that effect. Dr Guirgis's opinion … does not suggest that the doctor turned his mind in any focused way to the distinction between an injury finding pursuant to subsections (i) and (ii). The way in which the provisions are conflated suggests the opposite." After referring to other medical evidence, the Deputy President concluded: "94 The above injury finding was based on the evidence as a whole, not only on the opinion of Dr Guirgis. There was ample evidence to support the finding, which was open to the arbitrator…."
7. As the Deputy President noted, and as was repeated in the submissions in this Court, the appellant, relying on Dr Guirgis, sought to draw a distinction between a disease which is a pathological condition and "normal" degeneration which he described as "biology". Dr Guirgis diagnosed a "musculo-ligamentous sprain/strain with intervertebral disc involvement" which had "triggered & aggravated the effects of underlying asymptomatic multilevel age appropriate degenerative changes. Such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by heavy manual handling duties like the one described". [10] What was meant by "age appropriate" in respect of the degenerative changes in a 35-year-old (as the appellant was in 2012) was not made clear. Further, the same language was used with respect to the lumbar spine, based on MRI evidence obtained in 2018 and 2020.
8. The Deputy President dismissed the categorisation of degenerative changes as biological, as opposed to trauma-based changes which were pathological. The appellant's submission assumed that, as a matter of law, a distinction must be drawn between a degenerative condition resulting from normal biological processes and something pathological that is the result of some external stimulus or trauma. In some circumstances, it may be appropriate to distinguish between symptoms and illness, and between illness or disease and the disability it causes: other distinctions may be envisaged. However, as the Deputy President noted, [11] giving the term disease, other than its broadest meaning is inconsistent with longstanding authority, referring to Federal Broom Company Pty Ltd v Semlitch. [12] In that case, McTiernan J supported the approach of Moffitt J in the Full Court, who had rejected a distinction between a "disease" and its underlying mechanism and its symptoms. [13] Moffitt J had noted: "The act is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment. Disease is relevant only so far as it incapacitates, that is only so far as it produces manifestations which cause incapacity. Such manifestations are relevant only so far as they are causally related to employment. Any other more limited approach, … would disregard incapacitating symptoms arising from an employment stimulus and would necessitate embarking upon some artificial and probably unscientific assessment of strength and quality of the symptom generating mechanism of the disease."
9. Those observations were made in considering a mental condition which had given rise to delusions. As Kitto J noted, the question was whether the worker was entitled to "further compensation in respect of a continuing period of incapacity resulting from a delusional condition brought on by the incident". [14] The worker had "a previous history of schizophrenia which predisposed her to delusions, and she had had delusions of different kinds before. But the incident of the tea chest was a contributing factor to the arising of a new delusion". Kitto J further stated: [15] "In its ordinary meaning 'disease' is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness."
10. Windeyer J described the worker as "suffering from a disorder of the mind which the medical witnesses considered to be functional not organic". [16] He continued: "Let it be assumed that, in the present state of our knowledge of these things, this disorder is to be considered as purely psychogenic, it is nonetheless properly called a disease within the meaning of that word in the New South Wales Workers' Compensation Act."
11. Windeyer J observed: [17] "But even in relation to purely somatic disorders, identifiable as resulting from the derangement or degeneration of some organ, the assumed absolute distinction between the pathological condition, the disease, and its regularly occurring signs and symptoms may, it seems to me, be in some cases of doubtful validity. To regard bodily symptoms as always the product of an ailment rather than of its essence may be to treat concomitance as consequence."
12. In ordinary linguistic usage, a pathological condition does not depend on its cause. Indeed, s 4(b) assumes that a disease may be caused by a condition of employment or by some unrelated factor. The distinction the appellant sought to draw was without substance and the Deputy President did not err in point of law in rejecting it.

Ground 2: Determination 3 - lumbar spine

1. The appellant's contention in respect of this ground was that the medical evidence did not support a finding that there were pre-existing degenerative changes to the lumbar spine which could explain the disease identified by reference to the symptoms he suffered. The symptoms were the result of "mechanical derangement" including disc bulging, disc protrusion and disc rupture. His primary submission was that if such conditions were found to exist after his employment, but not before it, there could be no other cause.
2. As to the arbitrator's finding that there was a lack of contemporaneous evidence of an employment-related injury to the lower back, he submitted that there was evidence of symptoms referrable to such a condition which were recorded in the course of his employment. In particular, he said that he had made a complaint to his general practitioner on 8 January 2010 of "right foot pain". However, the arbitrator addressed that complaint but found an absence of medical evidence to support a causal relationship with his lumbar spine: at [216]. The first CT scan of the lumbosacral spine was undertaken on 24 September 2012. It showed the mild disc bulging and annular disc bulge to which the appellant referred. That condition was identified two years after he left his employment with the respondent, and two and a half years after his complaint of right foot symptoms in January 2010.
3. Each of these matters was identified and addressed by the arbitrator and considered by the Deputy President. The Deputy President noted that the question of a causal link was "essentially a medical question" and could not be addressed on the basis of "common knowledge and experience". The appellant had placed no medical evidence before the arbitrator dealing with that causal question. [18] The Deputy President found that the negative finding, namely that the arbitrator was not satisfied of the causal connection with the employment, was open to her.
4. That reasoning was not shown to be wrong. It was a legally correct approach to a question requiring establishment of error in the fact-finding process by the arbitrator. No relevant error was identified. In effect the appellant's submissions to the Deputy President merely repeated the claim that another view was open on the evidence. Accepting that that was true, it was insufficient to demonstrate error on the part of the arbitrator in not being satisfied that it was correct. The Deputy President did not make any legal error in so holding.

Fresh or additional evidence

1. Ground 2 made extensive reference to a report of a neurologist, Dr John Hugh O'Neill, of 28 September 2018. Dr O'Neill's report had been obtained by solicitors then acting for the appellant. Before the Deputy President, the appellant sought to rely on the report for the proposition that there was no previous injury or pre-existing condition or abnormality. Clearly the report pre-dated the arbitration: the first question is whether it was tendered to the arbitrator. There was no copy before the arbitrator prior to her decision of 24 February 2021. The report was subsequently provided to her with a request that it be included in the material to be supplied to the medical assessor. In a separate decision of 5 March 2021, the arbitrator rejected the document. She noted that the copy supplied was incomplete, missing pages 3, 5, 10 and 11, and that a number of pages were so faint as to be illegible.
2. The Deputy President was also provided with a copy of the report. With respect to that copy he stated: "66 … Pages 3, 5, 10 and 11 of the report are very faint, to the point where they are difficult to read. If a computer is used to increase the size of the font it is possible to read those pages. Even with the font magnified there are words which cannot be read."
3. The Deputy President then identified passages which could not be read. It is sufficient to give examples, first from page 10: "67 On page 10 there are passages that read: 'Mr Iqbal clearly has a largely [indecipherable] neurological illness with symptoms and signs on current examination which cannot be explained by his radiological findings nor his surgical treatment for his neck and upper limb symptoms.' 'I think that Mr Iqbal's progressive symptoms from around 2008 until surgery in 2016 were primarily as a consequence of a [indecipherable] condition or disease, namely cervical and lumbar spondylosis. …'"
4. The Deputy President continued: "68 On page 11 there is a passage that reads: 'I have detailed treatment above. I [indecipherable] there was [indecipherable] the C5/6 and C6/7 fusion in 2016. Although there was radiological evidence of cervical cord narrowing [indecipherable] due to a '[indecipherable] narrow canal), there were no symptoms, signs of radiological evidence of myelopathy.'"
5. The Deputy President observed: "70 How parts of the report came to be degraded to a point where the text cannot be read is unknown and it would be both inappropriate and unhelpful to speculate. The consequence is that aspects of Dr O'Neill's understanding of the radiological appearances, and his opinion, are incomplete and the probative weight of the report is reduced."
6. In considering whether to admit Dr O'Neill's report, the Deputy President applied principles established by this Court in CHEP Australia Ltd v Strickland. [19] Finding that none of the criteria identified in Strickland, nor the threshold conditions in s 352(6) of the Workplace Injury Act, was satisfied, the Deputy President rejected the tender of Dr O'Neill's report. [20]
7. The amended notice of appeal did not identify any error of law or otherwise in the approach adopted by the Deputy President on this issue. Amongst many points, and following a purported explanation as to the reason why the report of Dr O'Neill had not been tendered to the arbitrator, ground 2 continued: "So, I submitted a copy of the report of Dr O'Neill with my internal appeal application against the determination of 24/02/2021 …. Some pages of that report were not so clear and [Personal Injury] commission rejected the report …. So, this time I managed a fresh copy of the report of Dr O'Neill."
8. A legible, but annotated, copy of Dr O'Neill's report was included in the blue appeal book. [21] It was clearly not the copy which had been provided to the arbitrator, nor that provided to the Deputy President. Critical passages found by the Deputy President to be illegible even on magnification were entirely legible. The result did not assist the appellant. Inserting the missing word at page 10 in the first passage set out above, the first line read, "Mr Iqbal clearly has a largely functional neurological illness…". In the second quote, both indecipherable words were "degenerative". In the third passage the complete version read as follows: "I have detailed treatment above. I doubt there was any proper justification for the C5/6 and C6/7 fusion in 2016. Although there was radiological evidence of cervical cord narrowing (partly due to a congenitally narrow canal), there were no symptoms, signs or radiological evidence of myelopathy."
9. As the Deputy President correctly surmised, the indecipherable passages were critical to understanding Dr O'Neill's opinions. Thus, in relation to permanent impairment, Dr O'Neill agreed that Mr Iqbal had reached maximum medical improvement and answered the following question: "12 If so, has my client's injury or condition resulted in impairment? Mr Iqbal has impairment, largely as a consequence of the decision for him to undergo a cervical fusion at C5/6 and C6/7."
10. When asked to assess the degree of permanent impairment, Dr O'Neill commenced: "I have assessed impairment on the basis that there has been a fusion at C5/6 and C6/7 and that there is some evidence of a persisting left C7 radiculopathy despite surgery."
11. Given these findings, it would seem that the assessment was largely hypothetical and the statement that there was "no deductible proportion" had little meaning.
12. On the appeal, Mr Iqbal proceeded as if the complete and legible report had been before the arbitrator and the Deputy President. In neither case was that correct. The Deputy President rejected the tender of the report, a decision which is unchallenged and which does not appear to be open to challenge in point of law. Accordingly, Dr O'Neill's report is not part of the evidence in the matter and no opinion he expressed can assist the appellant in this appeal.

A "no evidence" ground

1. That two views of the evidence might be "open" did not assist the appellant. He came closer to asserting an error of law in stating that there was "no evidence" of any pre-existing degenerative condition in his lumbar spine. However, the submission was doomed to fail for two separate but independently sufficient reasons. First, he bore the burden of establishing an employment-related condition in the lumbar spine for the purposes of demonstrating injury. To state that there was no evidence of any other cause of a condition (first identified some two years after the employment ceased), did not provide a basis for alleging error of law. As explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd, [22] a workers' compensation appeal restricted to a point of law: "Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof."
2. Secondly, the appellant was not entitled to rely upon on his own evidence to establish that there was no evidence that he was not injured. As Glass JA observed in Azzopardi: [23] "To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument which assumes against himself that the evidence has been accepted but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence."
3. In order to establish injury to his lumbar spine during the course of his employment, the appellant relied on the following passages in the report of Dr Guirgis: [24] "By 2010 the pain in his back was felt all the time and was shooting down his right leg to the foot and often down his left leg but not as much." This statement depended on self-reporting by the appellant. The arbitrator was entitled to reject that evidence and she did so.
4. There was no legal error in the way in which either the arbitrator or, on appeal, the Deputy President, dealt with the evidence of injury to the lumbar spine. The fact was that Dr Guirgis' reports were replete with references to pre-existing degenerative conditions. As the Deputy President noted, Dr Guirgis elided the distinction between contracting and aggravating disease. The "no evidence" ground was without substance.

The blood test results

1. Finally, it is convenient to refer to the appellant's reliance on a pathology report of his blood count undertaken on 6 August 2010. The clinical history noted in the report was "pains right hand". The full blood count was "normal". That information had been supplied to Dr Guirgis, who addressed the issue in his report of 25 October 2017 (at page 9). He stated that the test results "would positively exclude any form of systemic arthritic process", giving examples. However, it is clear from the rest of the paragraph which commenced with that statement that the results did not, in his view, exclude what he described as "age appropriate degenerative changes" in the cervical and lumbar spines. In short, the blood test evidence did not assist the appellant.
2. More importantly, possible reliance on the blood test was not raised before the Deputy President as an error in the fact-finding of the arbitrator; nor was it identified in the discursive grounds of appeal in the amended summons filed in this Court. That complaint must also be rejected.
3. To the extent that there were other specific matters raised before the Deputy President, each was addressed in his reasons and no error in point of law has been identified with respect to the manner in which he addressed them. It follows that ground 2 must be rejected.

Ground 3: Report of right foot pain in 2010

1. Ground 3 related specifically to the appellant's evidence of foot pain in 2010. The appellant relied upon a single entry in his general practitioner's notes for 8 January 2010 referring to a complaint of right foot pain. Taken in isolation, the entry was anodyne. However, the appellant sought to rely upon it, in the light of subsequent findings as to the condition of his lumbar spine, as evidence that the condition was symptomatic during, and therefore caused by, his employment with the respondent. Thus, ground 3 was a further challenge to determination 3. For the reasons indicated above, it raised no error in point of law with respect to the decision of the Deputy President.
2. It follows that the challenge to the award in favour of the respondent with respect to the claim of injury to the lumbar spine (determination 3) must fail.

Ground 5: challenge to assessment of whole person impairment

1. Ground 5 related to the medical assessment certificate issued on 2 March 2022. The certificate assessed the appellant's whole person impairment at 31%.
2. The manner in which the appellant sought to deploy the finding of "nil" pre-existing injury, condition or abnormality, has been noted above. However, his appeal against the certificate was not before this Court. Indeed, there is no right of appeal to this Court from the issue of the certificate. Rather, an appeal may be brought pursuant to s 327 of the Workplace Injury Act by application to the President who must be satisfied that one of the grounds identified in s 327(3) has been or is capable of being made good on the hearing of an appeal.
3. On 12 May 2022, the President's delegate found that the appellant had failed to make out an arguable case of demonstrable error, and had failed to demonstrate that the medical assessor had acted on the basis of an incorrect criterion. Accordingly, the officer determined that the appeal was not to proceed. There is no appeal from that decision to this Court. Where it is possible to demonstrate jurisdictional error or error of law on the face of the delegate's record, judicial review may be available in the Common Law Division, pursuant to s 69 of the Supreme Court Act 1970 (NSW). That is not a matter which has been pursued and is not a matter which could be pursued in these proceedings.
4. It is fair to say that, in the course of oral submissions, when these difficulties were presented to him, the appellant did not press this ground, but neither did he abandon it. Ground 5 must be dismissed.

Conclusions

1. The appeal from the decision of the Deputy President having failed, the Court should make the following orders: 1. Extend time for the filing of the appeal from the decision of the Deputy President of the Personal Injury Commission to 9 March 2022. 2. Dismiss the appeal. 3. Order that the appellant pay the costs of the first respondent in this Court.

Endnotes

1. Iqbal v Hotel Operation Solutions Pty Ltd [2021] NSWPICPD 40 ("Iqbal").
2. Personal Injury Commission Act, Sch 1, cl 14D.
3. Iqbal at [17]-[20]; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [20]-[21] (in my reasons, Payne JA agreeing); Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [70]-[72] (in my reasons, Sackville AJA, Ward JA agreeing).

4. Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 7[1] ("2012 Amendment Act").
5. 2012 Amendment Act, Sch 12, cl 20.
6. Iqbal at [89].
7. 2012 Amendment Act, Sch 7[2], [3].
8. Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 88.
9. Statement at pars 3, 5 and 8.
10. Report, 29 October 2020, p 4, par 1.
11. Iqbal at [94].
12. (1964) 110 CLR 626; [1964] HCA 34.
13. Federal Broom at 629.
14. Federal Broom at 631.
15. Federal Broom at 632.
16. Federal Broom at 635.
17. Federal Broom at 636.
18. Iqbal at [109].
19. [2013] NSWCA 351; 12 DDCR 501 at [27]-[31] (Barrett JA, Macfarlan JA agreeing).
20. Iqbal at [71].
21. The respondent took no objection to its inclusion.
22. (1985) 4 NSWLR 139 at 156F.
23. Azzopardi at 156D-E.
24. Report, 29 October 2020, p 6.8.

Amendments 09 August 2022 - Headnote - corrected formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2022