Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Workers' compensation - Employer's liability to pay compensation for reasonable expenses incurred or likely to be incurred in respect of medical or surgical attendance and treatment - Proper construction and application of sch 1 cl 17(1) of the Workers' Compensation and Injury Management Act 1981 (WA)

Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5(1), s 5(5), s 18, s 21, s 56, s 57, s 182ZQ, s 213(4), s 247, s 254, sch 1 cl 7, cl 9, cl 17

Cole v P & O Ports Ltd [2002] WASCA 157

Kanowna Belle Goldmines v Feierabend [2003] WASCA 246

Lamont v Commissioner for Railways [1964] NSWR 406

Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182

Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642

1 McLURE P: I agree with the orders proposed by Buss JA generally for the reasons he gives. However, I wish to state my own reasons on the proper construction of cl 17(1), Sch 1 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

2 The facts and other relevant background are detailed by Buss JA and not repeated here. The construction issues in the appeal are whether, in order for expenses in respect of medical or surgical attendance and treatment to be payable, there must be a connection between those expenses and the 'injury' as defined in s 5(1) of the Act, and if so, the nature of the connection.

3 Clause 17 is headed 'Medical and other expenses' and relevantly provides:

In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of -

(1) ... medical or surgical attendance and treatment, including where necessary, medical or surgical attendance and treatment by specialists[.]

4 For the purposes of this appeal, it can be assumed without deciding that the appellant's cervical surgery on 30 October 2012 for the insertion of a C5/6 artificial disc falls within the statutory expression 'medical or surgical attendance and treatment' in cl 17(1).

5 Other categories of expenses within cl 17(1) include expenses in respect of: transport to a place for medical treatment; medicines; dental, physiotherapy or chiropractic attendance and treatment; attendance and treatment that is approved treatment; and artificial body parts and aids. The total expenses under cl 17(1) cannot exceed a sum equal to 30% of the prescribed amount, unless cl 18A applies.

6 Section 18 of the Act is the source of a worker's entitlement to compensation under the Act. It provides that if an injury of a worker occurs, the employer is liable to pay compensation in accordance with Sch 1. The definition of injury in s 5(1) provides the statutory connection with the worker's employment. By way of example, the definition of injury includes:

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions[.]

7 Notwithstanding the reference to weekly payments of compensation in the chapeau of cl 17, the entitlement to reasonable expenses is not confined to a worker who is or was entitled to weekly payments of compensation. Weekly payments of compensation are payable where the worker has total or partial incapacity for work resulting from the injury (cl 7, Sch 1) or deemed total incapacity (cl 8, Sch 1).

8 A worker entitled to lump sum compensation is also entitled to cl 17 (and other) expenses until an election is made under s 31H: s 31J(2).

9 Further, medical expenses under cl 17 are also payable where there is an injury but no incapacity for work. Clause 9 of Sch 1 provides:

Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable.

10 What is clear from the Act as a whole is that it is a condition of any entitlement to cl 17 expenses that the claimant worker have an injury under the Act. That is, the medical or surgical attendance and treatment in cl 17(1) must have a connection or relationship with an injury to which the Act applies.

11 The textual source of the requirement for a connection or relationship between the medical or surgical attendance and treatment on the one hand and the injury on the other is the term 'reasonable' in cl 17, which requires a factual value judgment.

12 Clause 17 requires that the expense(s) be with respect to, inter alia, the medical or surgical attendance and treatment. In order for the expense(s) to be reasonable, it is a condition of the entitlement that the medical or surgical attendance and treatment be with respect to the injury under the Act. That is a necessary, but not of itself sufficient, condition of reasonableness.

13 The reasonableness of the medical or surgical attendance and treatment with respect to the injury will embrace (without being exhaustive) matters going to the appropriateness, effectiveness and cost thereof. For example, a large outlay for a marginal outcome is unlikely to be reasonable.

14 The appellant's case at the hearing of the appeal was that the expenses of and relating to the C5/6 disc replacement surgery were reasonable expenses within cl 17, Sch 1 because:

(1) the surgery was medically and surgically appropriate for the appellant's injury (mechanical neck pain); or

(2) when the surgery was performed, the injury that was the cause of the appellant's neck pain had not been identified and the surgery was medically and surgically appropriate with a view to relieving the pain.

15 However, the appellant's case at the hearing of the appeal was not that litigated or established below. The evidence fell well short of establishing that the cervical surgery was medically and surgically appropriate for the appellant's injury, being his mechanical neck pain. Further, the evidence did not establish that the cervical surgery was medically and surgically appropriate to relieve pain caused (or contributed to) by the injury. If either had been established, there would be a sufficient factual foundation to characterise the claim as being for reasonable expenses.

16 BUSS JA: The appellant has applied for leave to appeal from an order of Stone DCJ (the primary judge) refusing the appellant leave to appeal from a decision of Mr G Rutherford in his capacity as an officer of WorkCover WA designated under s 182ZQ of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) as an arbitrator.

17 The appeal to this court is concerned principally with the proper construction and application of cl 17(1) of sch 1 of the Act.

18 By s 18 of the Act, if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1. By cl 17(1) of sch 1, in addition to weekly payments of compensation, a sum is payable to an injured worker equal to the reasonable expenses incurred or likely to be incurred in respect of, relevantly, medical or surgical attendance and treatment including, where necessary, medical or surgical attendance and treatment by specialists.

19 The critical issue of construction is the nature and extent of any nexus that is required between the compensable injury or any resulting incapacity, on the one hand, and the relevant medical or surgical attendance or treatment, on the other, for the injured worker to be entitled to recover, pursuant to cl 17(1) of sch 1, the reasonable expenses incurred or likely to be incurred in respect of the relevant medical or surgical attendance or treatment.

20 I would refuse leave to appeal and dismiss the appeal. My reasons are as follows.

21 On 16 April 1998, the appellant underwent a surgical fusion to his C6/7 cervical spine.

22 On 19 November 1999, the appellant was injured in a motor vehicle accident involving a truck. His head and neck were thrown back. This caused a soft tissue injury to his neck.

23 In 2001 the appellant was still experiencing neck pain as a result of the surgical fusion to his C6/7 cervical spine in 1998 and the motor vehicle accident in 1999.

24 On 26 June 2006, the appellant commenced employment with the respondent at its Bunbury port operations.

25 On 8 December 2008, the appellant suffered a neck injury in the course of his employment with the respondent.

26 The appellant claimed statutory workers' compensation benefits in respect of this injury (the 2008 claim). The respondent accepted liability for the claim. It paid the appellant's medical expenses and made weekly payments during a six-month period when the appellant was performing restricted work activities. The injury was managed conservatively. In about mid-2009 the appellant returned to full duties.

27 Later in 2009 the appellant complained of pain and other symptoms in his neck and arm. However, according to his neurosurgeon, Mr Paul Bannan, there was no reported pain originating from the C5/6 or the C6/7 nerve roots.

28 On or about 11 April 2012, the appellant allegedly suffered another neck injury in the course of his employment with the respondent.

29 The appellant claimed statutory workers' compensation benefits in respect of this alleged injury (the 2012 claim). The respondent denied liability for the claim.

30 On 30 October 2012, the appellant underwent cervical surgery, involving the insertion of a C5/6 artificial disc, on the advice of Mr Bannan.

31 The respondent continued to deny liability for the 2012 claim. In particular, the respondent denied that it was liable to make weekly payments of compensation or pay medical expenses and other allowances, including those of and relating to the cervical surgery on 30 October 2012.

32 The appellant commenced proceedings at WorkCover WA. The dispute was not resolved by conciliation. It proceeded to a hearing on 23 May 2013 before Arbitrator Rutherford. On 23 January 2014, the arbitrator made orders and published written reasons for decision.

The proceedings before Arbitrator Rutherford

33 In the proceedings before Arbitrator Rutherford the appellant sought a determination of liability in respect of the 2012 claim, and orders that he be paid weekly compensation payments from 1 August 2012 for total incapacity. Also, the appellant sought an order that the respondent pay his continuing reasonable expenses in accordance with cl 17 and cl 19 of sch 1 of the Act, including the costs of his C5/6 disc replacement surgery, on the basis that those expenses resulted from the alleged injury he suffered on or about 11 April 2012.

34 Alternatively, the appellant contended at the arbitration that he should be paid weekly payments from 1 August 2012 for total incapacity on the basis that the incapacity resulted from the injury he suffered on 8 December 2008. So, the appellant sought, in the alternative, an order that the respondent pay his continuing reasonable expenses in accordance with cl 17 and cl 19 of sch 1 of the Act, including the costs of his C5/6 disc replacement surgery, on the basis that those expenses resulted from the injury he suffered on 8 December 2008.

35 Extensive medical evidence, in the form of written reports, was adduced in the arbitration. The evidence included reports from Dr Joel Silbert (a consultant occupational physician), Mr Michael Alexeeff (a consultant orthopaedic surgeon), Mr George Wong (a neurosurgeon), Mr Wayne Thomas (a neurosurgeon) and Mr Bannan.

36 In February 2001, the appellant consulted Mr Thomas about 'a severe attack of pain in the low neck spreading to the shoulders and down the arms worse on the left'. See Mr Thomas' report dated 27 February 2001. Mr Thomas performed the surgical fusion to the appellant's C6/7 cervical spine on 16 April 1998. The appellant told Mr Thomas in February 2001 that 'after the cervical fusion his recovery was a very slow process over about 18 months', but he nevertheless felt that 'he had reached the point of being virtually completely asymptomatic prior to the [motor vehicle accident] of 19 November 1999'. See Mr Thomas' report dated 27 February 2001.

37 In his report dated 27 February 2001, Mr Thomas said:

As to the causation of his ongoing neck pain problem and relative disability it is my belief that there are two parts to it. Firstly the previous cervical injury which necessitated cervical fusion in 1998 would contribute to his ongoing susceptibility to neck pain, spreading into the upper limbs in relation to his heavy work load. Secondly the truck accident [in 1999] left him continually affected by neck pain and has to be considered a significant secondary contributor to his ongoing pain.

38 Arbitrator Rutherford found that the appellant did in fact suffer an injury on or about 11 April 2012. Mr Wong described the 2012 injury as 'mechanical neck pain' and 'not neurological' [178(c)]. The arbitrator did not accept Mr Bannan's view that the most likely source of the appellant's neck pain was his C5/6 disc, which Mr Bannan said was 'quite unhealthy'. See Mr Bannan's report dated 4 September 2012. The arbitrator was not satisfied that 'the 2012 symptoms were a result of the degeneration at the C5/6 disc' [181]. The arbitrator found that the 2012 injury was a 'mechanical neck injury' which resulted in the neck symptoms and headaches experienced by the appellant [168]. The 2012 injury was a 'fresh' injury in that it was not a recurrence, aggravation or acceleration of the injury the appellant suffered on 8 December 2008 [169]. The appellant's incapacity resulted from the 2012 injury and not from the 2008 injury [170].

39 The arbitrator said there was 'no doubt' that degenerative progression in the appellant's C5/6 disc was a consequence of the surgical fusion to his C6/7 cervical spine which he underwent on 16 April 1998 [178(c)]. It was 'more likely than not that at some stage the degeneration of nearby discs would occur' and, indeed, that was anticipated by Mr Thomas in about 1999 [178(c)].

40 Arbitrator Rutherford determined that the appellant was 'entitled to weekly compensation payments for total incapacity as a result of the alleged 2012 injury' [179].

41 However, the arbitrator found that the respondent was not liable for the expenses of and relating to the C5/6 disc replacement surgery [185]. The arbitrator was not satisfied, on the balance of probabilities, that the C5/6 disc replacement surgery was 'a result of a compensable injury and/or work-related activities' [183]. He rejected Mr Bannan's opinion, expressed in his reports dated 11 December 2012 and 21 May 2013, that the appellant injured his C5/6 disc in a work-related accident in 2008 [66], [139] - [141].

The evidence clearly establishes that the C5/6 disc deteriorated over a period of time and from a medical point of view at least is a consequence of the C6/7 fusion. In that respect, I accept the views of Dr Silbert and Mr Alexeeff.

I am not satisfied that the 2012 symptoms were a result of the degeneration at the C5/6 disc. The main problem with the disc appears to be right-sided. There is passing reference in some of the medical evidence to bilateral neck pain, but in the main, [the appellant's] symptoms were left-sided. Mr Wong considered that although he was not certain that the mechanical neck strain was from a particular site, he was not satisfied it was from the C5/6 disc.

Mr Bannan's opinion ... is to be accorded little weight. In so saying, I have taken into account two matters: he is the treating surgeon and has examined Mr Napier in both 2009 and 2012. The difficulty I have is that the factual basis of his opinion has not been set out.

I am not satisfied that the evidence establishes on the balance of probabilities that the need for the C5/6 disc replacement surgery was a result of a compensable injury and/or work related activities as there is little or no evidence to establish a connection between work activities and the need for disc replacement surgery. In particular, I am not satisfied the evidence establishes the C5/6 disc was injured in that the evidence does not establish that the deterioration of the disc was a result of a recurrence, aggravation or acceleration of a pre-existing condition where the employment was a contributing factor. Indeed, the bulk of the medical evidence points to the opposite conclusion, that work had no contribution, or at best, an insignificant contribution.

Mr Thomas predicted such problems would occur, which happened. I am satisfied therefore that the cause of the C5/6 disc replacement was a result of the anticipated 'natural' deterioration of the C5/6 as a consequence of the 1998 C6/7 fusion operation which, vis-a-vis [the respondent], is a non-compensable matter.

On that basis, I find that [the respondent] is not liable for the expenses of and related to the C5/6 disc replacement surgery [180] - [185]. (original emphasis)

The application to the District Court for leave to appeal and leave to cross-appeal from Arbitrator Rutherford's decision

43 On 21 February 2014, the appellant filed an appeal notice in the District Court in which he sought leave to appeal, pursuant to s 247 of the Act, from Arbitrator Rutherford's decision.

44 The appeal concerned the arbitrator's finding that the respondent was not liable for the expenses of and relating to the C5/6 disc replacement surgery.

45 By s 213(4) of the Act:

The reasons for an arbitrator's decision -

(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and

(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

46 Section 247 of the Act provides, relevantly:

(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.

(2) ... the District Court is not to grant leave to appeal unless -

(a) in the case of an appeal in which an amount of compensation is at issue -

(i) a question of law is involved and the amount at issue in the appeal is both -

(I) at least $5 000 or such other amount as may be prescribed by the regulations; and

(II) at least 20% of the amount awarded in the decision appealed against;

or

(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;

and

(b) in any other case, a question of law is involved.

47 The so-called questions of law, for the purposes of s 247(2)(b) of the Act, as stated by the appellant in his appeal notice, read:

1. The nature and extent of the injury found by the learned Arbitrator to have occurred in April 2012;
2. Whether C5/6 disc replacement surgery was linked to the April 2012 injury found to have occurred.

48 The appellant sought to have the decision of Arbitrator Rutherford remain in force, save for the making of an order by the District Court that the respondent be liable for the expenses of and relating to the C5/6 disc replacement surgery. In the alternative, the appellant sought to have the matter remitted to the WorkCover WA Arbitration Service for further hearing.

49 The appellant relied on three grounds of appeal in the District Court. The grounds, without the supporting particulars of ground 1, were as follows:

1. The learned arbitrator erred in law by failing to consider whether [the appellant's] need for C5/6 disc replacement surgery was advanced or brought forward by the December 2008 and/or April 2012 injuries.
2. In the alternative, if the learned arbitrator did consider the timing of the C5/6 disc replacement surgery (which is denied), he failed to provide adequate reasons for (impliedly) finding the surgery would have been required when it did occur irrespective of the 2008 and/or 2012 injuries.
3. Further, and in any event, the learned arbitrator erred by mis-stating the law, to the effect that [the appellant's] work needed to contribute to a significant degree ... for compensable injury to be a cause of the disc replacement surgery [see Reasons; par 171].

50 As to ground 1, the primary judge held that the ground did not involve a question of law within section 247(2) of the Act, but was 'a complaint about a finding of fact by the arbitrator on the evidence' (ts 97). Leave to appeal was refused (ts 97).

51 As to ground 2, the primary judge said that Arbitrator Rutherford, in his reasons for decision, 'outlined the background to the proceedings, identified the main issues for consideration, set out the legal framework and principles [to be] applied, summarised the evidence of [the appellant], summarised the medical evidence and provided an analysis of the evidence, his reasoning process, findings and conclusions in relation to each of the main issues' (ts 100). His Honour was of the view that ground 2 was without merit. Leave to appeal was refused (ts 100).

52 As to ground 3, the primary judge said that '[o]n an overall reading of the reasons for decision, the arbitrator did not mis-state the law' (ts 99). His Honour was of the view that the arbitrator was correct in his application of the law to the evidence. According to his Honour, 'the arbitrator made a finding that he was not satisfied that the 2012 symptoms were a result of the degeneration at the C5/6, which was the correct statement of the test' (ts 99 - 100). His Honour was of the view that ground 3 was without merit. Leave to appeal was refused (ts 99).

53 The respondent applied to the District Court for leave to cross appeal against Arbitrator Rutherford's decision. It contended that the arbitrator's decision should be varied so that the appellant was not entitled to be paid weekly payments for total incapacity as a result of the 2012 injury.

54 The primary judge refused to grant the respondent leave to cross-appeal (ts 103). His Honour's decision on that point is not challenged by the respondent before this court.

The relevant provisions of the Act in relation to the recovery by a worker of reasonable expenses incurred or likely to be incurred

55 Section 3 of the Act specifies the purposes of the statute. By s 3(a), those purposes include, relevantly:

[T]o establish a workers' compensation scheme for Western Australia dealing with -

(i) compensation payable to or in respect of workers who suffer an injury; and

(ii) the management of workers' injuries in a manner directed at enabling injured workers to return to work; and

(iii) specialised retraining programs for injured workers; and

(iv) ancillary and related matters.

56 The relevant provisions of the Act in relation to the recovery by a worker of reasonable expenses incurred or likely to be incurred are as follows.

57 Section 5(1) provides that, in the Act, unless the contrary intention appears, 'injury' means, relevantly, 'a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions' (par (a)); or 'a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree' (par (c)); or 'the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree' (par (d)). Section 5(3) states that a reference in the Act to a 'personal injury by accident' is a reference to an injury of the kind referred to in par (a) of the definition of 'injury' in s 5(1).

58 By s 5(5):

In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -

(a) the duration of the employment; and

(b) the nature of, and particular tasks involved in, the employment; and

(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and

(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and

(e) matters affecting the worker's health generally; and

(f) activities of the worker not related to the employment.

59 Section 5(1) also provides that, in the Act, unless the contrary intention appears, 'clause' means:

(a) where the term is used in or in respect of a particular Schedule, a clause in that Schedule; and

(b) otherwise, a clause in Schedule 1.

60 By s 18:

If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.

61 By s 21:

An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury but clause 9 applies in any case. (emphasis added)

62 Division 5 of pt III, which comprises s 56 to s 72B, makes provision for the commencement, review, suspension and cessation of weekly payments of compensation for incapacity for work resulting from an injury under the Act.

63 Section 56 provides:

(1) Subject to subsection (2) and to the exceptions in Schedule 5, an entitlement of a worker to weekly payments of compensation for incapacity for work resulting from an injury under this Act ceases -

(a) if the injury occurs on or before the date on which the worker attains the age of 64 - on attaining the age of 65; or

(b) if the injury occurs after the date on which the worker attains the age of 64 - on the date one year after the injury occurs.

(2) An entitlement of a worker to weekly payments of compensation for incapacity for work resulting from an injury under this Act is not to cease under subsection (1) if the injury occurs on or after the date on which the Workers' Compensation and Injury Management Amendment Act 2011 section 88 comes into operation. (emphasis added)

64 By s 57, nothing in s 56 affects 'the liability of an employer for, and the entitlement of a worker to ... expenses as are provided for in clauses 9, 17, 18, 18A and 19 but subject to the limitation on those expenses as provided for in clauses 17(1) and 18A(1CA) and (1C)'.

65 Schedule 1 is headed 'Compensation entitlements'.

(1) Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.

(2) Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.

(3) An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.

(4) Nothing in subclause (3) affects the liability of an employer for, and the entitlement of a worker to, expenses as are provided for in clauses 9, 17, 18, 18A, and 19 but subject to the limitations on those expenses as provided in clauses 17(1) and 18A(1CA) and (1C). (emphasis added)

67 See also cl 8 of sch 1 in relation to deemed total incapacity.

Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable. (emphasis added)

In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of -

(1) first aid and ambulance or other service to carry the worker to hospital or other place for medical treatment; medicines and medical requisites; medical or surgical attendance and treatment, including where necessary, medical or surgical attendance and treatment by specialists; dental attendance and treatment; physiotherapy or chiropractic attendance and treatment; attendance and treatment that is approved treatment; charges for hospital treatment and maintenance, in accordance with clause 18 but not including charges for a nursing home unless a medical practitioner certifies that the worker is totally and permanently incapacitated and requires continuing medical treatment and maintenance which cannot be administered in the worker's domestic environment; the provision of hearing aids, artificial teeth, artificial eyes, and where the injury renders their use necessary, spectacles or contact lenses, in so far as that attendance, treatment, or other item does not include vocational rehabilitation, but not exceeding, in the aggregate, a sum equal to 30% of the prescribed amount, unless clause 18A applies, and there shall be no revival of, or increase in, the entitlement to such expenses upon any subsequent increase in the prescribed amount. (emphasis added)

70 It is unnecessary to reproduce cl 18, cl 18A or cl 19 of sch 1.

Applications for leave to appeal to this court

Under the District Court of Western Australia Act 1969 section 79, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under this Part but -

(a) the appeal must relate to a question of law; and

(b) leave to appeal must be obtained from the Court of Appeal.

72 So, the appellant's appeal must relate to a question of law and the appellant must obtain leave to appeal from this court. There is no appeal as of right.

73 This court's power to grant leave to appeal under s 254 of the Act is conferred in general terms. The power is not restricted or qualified except that the appeal must relate to a question of law. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.

The appellant's grounds of appeal to this court and his submissions

74 The appellant relies on two grounds in his appeal to this court.

75 However, neither the grounds nor the appellant's written submissions adequately capture the points on which counsel for the appellant sought to rely at the hearing.

76 The appellant's contentions, as explained by his counsel in oral argument, are as follows:

(a) The appellant accepts that, on Arbitrator Rutherford's findings of fact, the appellant suffered a 'mechanical neck injury' on or about 11 April 2012, which resulted in neck symptoms and headaches. This injury and the total incapacity resulting from the injury had 'nothing to do with' the appellant's C5/6 cervical spine or nerve roots (appeal ts 5).

(b) Nevertheless, the appellant was entitled, so it was submitted, to all of the medical expenses he claimed, even though some of those expenses (notably, the expenses of and relating to the C5/6 disc replacement surgery) had 'nothing to do with' the 2012 mechanical neck injury or the resulting incapacity (appeal ts 5).

(c) According to counsel, the construction of the Act which he advanced was 'quite simple' (appeal ts 5). An injured worker will be entitled to claim medical expenses, pursuant to cl 17(1) of sch 1 of the Act, for particular treatment if the treatment was 'medically reasonable or appropriate' at the time the expenses were incurred; for example, to relieve or remedy the symptoms associated with the compensable injury or any resulting incapacity (appeal ts 13 - 15, 24). No further or other nexus between the compensable injury or any resulting incapacity, on the one hand, and the relevant treatment, on the other, is necessary (appeal ts 13 - 15, 24).

(i) the arbitrator found there was an injury under the Act and, 'when it comes to treatment, the treatment does not necessarily [have to] relate to what was found to be the [compensable] injury under the Act' (appeal ts 7);

(ii) in the present case, the expense of the C5/6 disc replacement surgery will have been a 'reasonable expense', for the purposes of cl 17(1) of sch 1, if the surgery was necessary or appropriate to address the symptoms associated with the 2012 mechanical neck injury; and

(iii) this issue is a 'medical question' and involves an assessment of what was 'reasonable treatment'; in particular, it is 'a question of medically whether it might be reasonable for a C5/6 disc to be treated [by C5/6 disc replacement surgery] in the context of treating [the pain associated with the 2012] mechanical neck injury' (appeal ts 7 - 10).

(e) The arbitrator did not consider 'whether medically it was appropriate for this C5/6 disc to be treated [by C5/6 disc replacement surgery] in [the] context of [the symptoms associated with] the compensable injury [that is, the 2012 mechanical neck injury]' (appeal ts 9 - 10).

77 Counsel for the appellant's final position at the hearing was that the expenses of and relating to the C5/6 disc replacement surgery were 'reasonable expenses' within cl 17 of sch 1, and the respondent was liable for those expenses, because the surgery was medically and surgically appropriate for the appellant's mechanical neck pain; alternatively, the respondent was liable because, when the operation was performed, the cause of the appellant's neck pain had not been identified and the operation was medically and surgically appropriate with a view to relieving the pain (appeal ts 15).

78 These contentions appear to relate to a question of law in that they raise as an issue the proper construction and application of cl 17 of sch 1.

The reports of Mr Bannan relied on by the appellant before Arbitrator Rutherford

79 The appellant relied on Mr Bannan's reports dated 20 January 2009, 4 September 2012, 11 December 2012 and 21 May 2013 in the proceedings before Arbitrator Rutherford.

80 It is unnecessary to refer to the report dated 20 January 2009.

81 In his report dated 4 September 2012, Mr Bannan said the appellant had two treatment options for his neck pain. First, ongoing conservative management with further blocks. Secondly, surgery for the insertion of a C5/6 artificial disc. Mr Bannan elaborated:

I have advised [the appellant] that his options are two-fold; ongoing conservative management with further blocks. He didn't gain any relief from his C2/3 blocks and his C4/5 blocks also did not help. This suggests that the facet joints are not the major cause of his pain; I believe the most likely source of his pain is the C5/6 disc, which is quite unhealthy. I would advise [the appellant] to consider a C5/6 artificial disc. A fusion would leave him with an increased risk of breaking down at C4/5, and I believe an artificial disc offers the best chance of him improving his neck pain and helping the discogenic changes. It is possible that even after surgery he may have some facet joint pain and he may require some further blocks or facet joint rhizotomies.

82 In his report dated 11 December 2012, Mr Bannan recorded that the appellant had recently had surgery for the insertion of a C5/6 artificial disc. He added:

[T]here is radiological evidence in February 2009 that [the appellant] most likely did injure his disc in the work related accident in December 2008. I think the need for the surgery at C5/6, done in October 2012 is still related to his work accident in 2008. He had disc disease at C5/6 with compression on the right C6 root. (emphasis added)

83 In his report dated 21 May 2013, Mr Bannan noted:

I reviewed [the appellant] again in September 2012 and it was noted that he had broken down at C5/6 (this is the level above the fusion). When he was seen in December 2012 he was complaining of dorsal neck pain and symptoms of right C6 pain. There was radiological evidence in February 2009 that this man had accelerated degeneration at C5/6. The question is whether the work related accident in December 2008 is a significant factor ...

... I think it is well appreciated that [the appellant] would have accelerated degeneration at C5/6. I still believe it is work related given his [accident] in December 2008 and I still believe that the indication for subsequent surgery after many years of conservative treatment was still related to his accident at work in 2008. (emphasis added)

84 Arbitrator Rutherford said that Mr Bannan's reports were 'not particularly helpful' [158]. His reports should be accorded 'little weight' [182]. The arbitrator observed that Mr Bannan's reports contained 'mere assertions [that the C5/6 disc] was injured in 2008' and that 'the factual basis of his opinion has not been set out' [159], [182].

The appellant's material change of position in this court compared to his case before Arbitrator Rutherford and his case in the District Court

85 The appellant's case in this court in relation to the proper construction and application of cl 17(1) of sch 1 of the Act was materially different from his case on that matter before Arbitrator Rutherford and in the District Court.

86 The appellant's change of position in this court compared to his stance before the arbitrator is apparent from his written submissions in the arbitration proceedings. The written submissions read, relevantly:

The [appellant] seeks a determination of liability with respect to the 2012 claim, and seeks orders that he be paid weekly payments as for total incapacity from 1 August 2012, and that the respondent pay his continuing clause 17 and clause 19 expenses related to the injury of 11 April 2012.

In the alternative, the [appellant] contends he ought [to] be paid weekly payments as for total incapacity from 1 August 2012 on the basis that the incapacity results from the injury of 8 December 2008.

Accordingly, the [appellant's] alternative argument is that he be paid continuing clause 17 and clause 19 expenses in relation to the injury of 8 December 2008 [8] - [10]. (emphasis added)

87 In his oral opening submissions at the hearing before Arbitrator Rutherford, the appellant by his then counsel said:

(a) the appellant's primary argument was that 'the determination of liability itself (in respect of the 2012 claim) would be enough for the [appellant's] purposes in terms of any incapacity or weekly payments that would flow from that claim' and '[t]hen, of course, [there are] clause 17 and clause 19 expenses' (ts 9);

(b) the appellant's alternative argument was that he was incapacitated as a result of the injury he suffered on 8 December 2008 (ts 9);

(c) counsel's understanding was that 'the respondent's primary argument is that in any event the need for surgery [does not] result from either the 2008 injury or the 2012 injury' (ts 10) (emphasis added);

(d) counsel submitted that 'the need for the surgery and the need for clause 17 expenses generally results from the 2012 injury' (ts 10) (emphasis added); and

(e) the evidence the appellant had obtained from Mr Bannan 'clearly indicated that he feels that the need for the surgery is as a consequence of the 2008 claim' and counsel 'would argue that [it is] implied in his report that he felt as though the surgery was reasonable and needed for [the appellant] given [he had] carried it out'; that was 'all we can really say in relation to the current medical evidence'; and there is 'nothing further beyond that' (ts 10) (emphasis added).

88 In his oral closing submissions in the proceedings before the arbitrator, the appellant by his then counsel reiterated that the appellant's 'current symptoms and current incapacity have resulted from' the 2012 injury, alternatively the 2008 injury (ts 40 - 41). Counsel said it was 'simply a question of whether or not the current incapacity and current need for medical expenses, including the surgery, results from' the 2012 injury, alternatively the 2008 injury (ts 40 - 41) (emphasis added). Counsel made two points about 'the reasonableness of the surgery'. First, counsel accepted that Mr Bannan, in his reports, had not 'gone into any further detail other than to say ... that [he still believed] the indication of the subsequent surgery after many years of conservative treatment was still related [to] this accident at work in 2008' (ts 49) (emphasis added). Secondly, although the appellant did not have any evidence from Mr Bannan, given before the surgery occurred, as to the reason for the surgery, according to counsel 'it is always the case that surgical procedures can provide excellent benefit or [there is] a range of benefits [they are] going to provide and [it is] implied in Mr Bannan's opinion that in weighing up the pros and cons of carrying out the surgery, in his opinion it would have been reasonable to do so in relation to the 2008 injury and therefore you should be satisfied that the surgery was required and reasonable' (ts 49 - 50) (emphasis added).

89 The appellant's change of position in this court compared to his stance in the District Court is apparent from his written submissions in the District Court proceedings. The written submissions read, relevantly:

The learned Arbitrator found the appellant sustained a 'fresh' injury on 11 April 2012, and given that is the case, it is simply a question of whether the need for treatment (ie the disc replacement surgery) results from that injury, not whether there is some distinct liability on the part of the respondent to pay the treatment expenses.

As such, the Arbitrator did not need to satisfy himself that the deterioration of the C5/6 disc 'was a result of a recurrence, aggravation or acceleration of a pre-existing condition where the employment was a contributing factor', his only consideration ought to have been whether the need for the C5/6 disc replacement surgery resulted from the 2012 injury, or alternatively, the 2008 injury.

...

The appellant contends that if the learned Arbitrator [had] applied the correct 'results from' test and properly considered whether the April 2012 and/or December 2008 injury advanced or brought forward the need for the disc replacement surgery, the evidence adduced at Arbitration is sufficient so as to allow the order sought.

In the alternative, if it is held the learned Arbitrator did consider the question of whether the need for the C5/6 disc replacement surgery was brought forward or accelerated by the 2012 or 2008 work injury, the appellant submits the Arbitrator failed to provide adequate reasons (or any reasons at all) for a finding that the surgery would have been required when it did [sic] irrespective of the 2008 and/or 2012 work injuries [17] - [18], [25] - [26]. (emphasis added)

(a) as to the 2008 claim, the respondent accepted liability for the claim on the basis that on 8 December 2008 the appellant suffered a neck injury in the course of his employment; and

(b) as to the 2012 claim, Arbitrator Rutherford found that on or about 11 April 2012 the appellant suffered a 'mechanical neck injury' [168]; this injury was a 'fresh' injury in that it was not a recurrence, aggravation or acceleration of the 2008 injury [169]; and the appellant was entitled to weekly compensation payments for total incapacity as a result of the 2012 injury [179].

91 The arbitrator found that the appellant's total incapacity 'resulted from' the 2012 injury [170].

(a) s 21 of the Act, by which an employer is liable to pay compensation under the Act from the date of incapacity 'resulting from' the injury;

(b) s 56(1), by which an entitlement of a worker to weekly payments of compensation for incapacity for work 'resulting from' an injury under the Act ceases in the circumstances specified in that provision;

(c) s 56(2), by which an entitlement of a worker to weekly payments of compensation for incapacity for work 'resulting from' an injury under the Act is not to cease under s 56(1) in the circumstances specified in s 56(2);

(d) cl 7(1) of sch 1, by which, subject to s 56 and cl 7(3), when total incapacity for work 'results from' the injury a weekly payment is to be paid during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with sch 1;

(e) cl 7(2) of sch 1, by which, subject to s 56 and cl 7(3), where partial incapacity for work 'results from' the injury, a weekly payment is to be paid during the partial incapacity in the amount specified in cl 7(2); and

(f) cl 9 of sch 1, by which, where a total or partial incapacity for work does not 'result from' the injury, but the worker is obliged to obtain, relevantly, medical or surgical advice or treatment, cl 17 applies insofar as it may be made applicable.

93 It is well established that the expression 'results from', and cognate expressions, in the Act describe a causal connection. It is a question of fact whether, in a particular case, incapacity 'results from' an injury under the Act. The factual inquiry involves the application of common sense in evaluating the causal chain bearing in mind that the object of the inquiry is to determine whether compensation is payable by the employer because the worker's incapacity was causally related to an injury suffered in the course of employment.

94 In Cole v P & O Ports Ltd [2002] WASCA 157, Murray and Wheeler JJ said:

At one time it was thought that the use of the phrase 'results from' confined the relevant question of causation to the ascertainment of a direct or proximate cause of incapacity, but that notion was finally set to rest, at least by the persuasive decision of the Court of Appeal of NSW in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as his Honour then was) said, with the agreement of Sheller JA and Powell JA, at 463:

'The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain.'

His Honour went on to refer to what is often described as the occurrence of a novus actus interveniens by saying that in considering questions of causation, 'a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped.'

To return workers' compensation law in relation to causation to that state is to place it on all fours with the general law of causation stated in relation to negligence cases by the High Court in the leading authority of March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The headnote of that case accurately summarises the effect of the judgments of the majority by saying that, 'causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter. The "but for" or causa sine qua non test is not a definitive test of causation'. That approach to the question has since been adopted in many cases concerned, not only with the question whether a plaintiff's injury was caused by a defendant's negligence, but also with the question whether damages claimed were caused by a plaintiff's injury.

This approach to the question of causation under workers' compensation legislation has been adopted by this Court recently in Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182; 18 July 2000 ... which was concerned with the question whether incapacity was caused by a number of injuries or disabilities, including some which were compensable, and in which it was held that provided work-related injury was a material contributing cause to the incapacity, it would be proper to conclude that the incapacity resulted from the compensable disability. In other words, that was a case where there might be found to be a number of contributing causes to an incapacity for work [21] - [23].

See also Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182; Kanowna Belle Goldmines v Feierabend [2003] WASCA 246.

95 In Kanowna Belle, the Full Court of the Supreme Court of Western Australia considered the test to be applied where there is more than one possible cause of an incapacity. Parker J (Murray & Wheeler JJ agreeing) said:

[W]here there is more than one possible cause of an incapacity it is sufficient for the purposes of the Act that the disability resulting from the work injury be a material contributing cause. That issue is to be determined as a matter of fact in light of the circumstances of the particular case when those circumstances are assessed by a process of commonsense evaluation of the causal chain. It follows, of course, that there may be more than one cause contributing to an incapacity [13].

96 The critical passage, for the purposes of this appeal, in cl 17(1) of sch 1 reads:

In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of -

(1) ... medical or surgical attendance and treatment, including where necessary, medical or surgical attendance and treatment by specialists; ...

97 This passage embodies an express causal nexus between the sum payable for reasonable expenses incurred or likely to be incurred, on the one hand, and medical or surgical attendance or treatment, on the other. The requisite connection is that the reasonable expenses must be incurred or likely to be incurred 'in respect of' the medical or surgical attendance or treatment. The expression 'in respect of' has a wide meaning. It takes its colour from the context in which it appears. It is the context which determines the matters to which it extends. See Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, 653 - 654 (Deane, Dawson & Toohey JJ).

98 The critical passage in cl 17(1) does not, however, expressly state any required connection between the worker's 'injury' (as defined in s 5(1) of the Act) or any incapacity 'resulting from' the injury, on the one hand, and the relevant medical or surgical attendance or treatment, on the other. Any required connection must be discerned, by implication, from the language of cl 17(1) in the context of related provisions of the Act and the purposes of the statute as specified in s 3.

99 The related provisions of the Act that form the context in which cl 17(1) is to be construed include:

(a) s 18, by which an employer is liable, subject to the Act, to pay compensation, in accordance with sch 1, if an injury of a worker occurs;

(b) s 21, by which an employer is liable to pay compensation under the Act from the date of incapacity resulting from the injury but cl 9 of sch 1 applies in any case;

(c) s 56, by which payments of compensation for incapacity for work resulting from an injury under the Act will, in certain circumstances, cease;

(d) s 57, by which nothing in s 56 affects the liability of an employer for, and the entitlement of a worker to, expenses as provided for in, relevantly, cl 17 of sch 1, but subject to the limitation on those expenses as provided for in, relevantly, cl 17(1);

(e) cl 7(3) of sch 1, by which an entitlement of a worker to weekly payments for an injury under the Act ceases in certain circumstances;

(f) cl 7(4) of sch 1, by which nothing in cl 7(3) affects the liability of an employer for, and the entitlement of a worker to, expenses as are provided for in, relevantly, cl 17 of sch 1, but subject to the limitation on those expenses as provided for in, relevantly, cl 17(1); and

(g) cl 9 of sch 1, by which, where a total or partial incapacity for work does not result from the injury, but the worker is obliged to obtain, relevantly, medical or surgical advice or treatment, cl 17 of sch 1 applies insofar as it may be made applicable.

100 The term 'incapacity' is not defined in the Act.

101 The relevant purpose of the Act, as specified in s 3(a), is to establish a workers' compensation scheme for Western Australia dealing with, amongst other things, compensation payable to or in respect of workers who suffer an injury.

102 The terms 'medical treatment' and 'surgical treatment' are not defined in the Act. Each of those terms, when used in a statute without a definition of the term, is a flexible expression which is capable of a greater or a narrower breadth of meaning according to the context in which it is used. See Lamont v Commissioner for Railways [1964] NSWR 406, 408 (Sugerman J, Else-Mitchell & Taylor JJ agreeing).

103 In my opinion, each of the terms 'medical treatment' and 'surgical treatment', in cl 17 of sch 1, has a wide connotation. This is consistent with the beneficial object of the Act. It is also consistent with the scheme which is apparent from s 57, cl 7(4) of sch 1 and cl 9 of sch 1; namely, that a worker who has suffered a compensable injury will be entitled to recover from his or her employer, in essence, reasonable expenses as provided for in cl 17 (subject to the limitation on those expenses set out in cl 17(1)), notwithstanding that payments of compensation for incapacity for work resulting from the injury have ceased under s 56 or cl 7(3), and notwithstanding that a total or partial incapacity for work does not result from the injury.

104 In my opinion, the term 'medical treatment', in cl 17 of sch 1, bears its ordinary and natural meaning in the applicable context. The term includes any medication, procedure or therapy recommended, prescribed or performed by a medical practitioner. Similarly, the term 'surgical treatment', in cl 17, bears its ordinary and natural meaning in the applicable context. The term includes any operation performed by a medical practitioner. Plainly, the matters which I have mentioned, as being within the meaning of 'medical treatment' or 'surgical treatment' in cl 17, are not intended to be exhaustive.

105 In my opinion, it is apparent from the language of cl 17(1) of sch 1, in the context of s 18, s 21, s 56, s 57, cl 7(3) of sch 1, cl 7(4) of sch 1 and cl 9 of sch 1 and the purposes of the statute as specified in s 3, that there is a required connection, for the purposes of cl 17(1), between the worker's 'injury' (as defined in s 5(1) of the Act), on the one hand, and the relevant medical or surgical treatment, on the other.

106 The existence of a compensable 'injury' (as defined in s 5(1) of the Act) is a core concept in the Act. It is the occurrence of an injury to a worker that triggers the entitlement of the worker and the liability of the employer, subject to the Act, to pay compensation (including the payment of a sum equal to the reasonable expenses incurred or likely to be incurred in respect of medical or surgical attendance and treatment, within cl 17 of sch 1). See s 18. The injured worker's entitlement and the employer's liability, subject to the Act, under cl 17 is not dependent upon the worker suffering or continuing to suffer total or partial incapacity for work as a result of the injury. See cl 9 of sch 1. See also the other related provisions of the Act to which I have referred.

107 The required connection, for the purposes of cl 17(1) of sch 1, between the worker's 'injury' (as defined in s 5(1) of the Act), on the one hand, and the relevant medical or surgical treatment, on the other, must be discerned by implication from the language of cl 17(1), in the context of the provisions of the Act which I have enumerated at [99] above and the purposes of the statute as specified in s 3. The connection is as follows.

108 The relevant medical or surgical treatment must be by a medical practitioner for the purpose of alleviating, remedying, curing or preventing the deterioration of:

(a) the 'injury' (as defined in s 5(1) of the Act) of the worker which is compensable under the Act; or

(b) a disability that is wholly or partly caused by or attributable to the compensable 'injury'; or

(c) any symptoms or effects wholly or partly caused by or attributable to the compensable 'injury' or a disability within par (b).

109 The terms 'medical attendance' and 'surgical attendance' are not defined in the Act.

110 In my opinion, each of the terms 'medical attendance' and 'surgical attendance', in cl 17 of sch 1, bears its ordinary and natural meaning in the applicable context. Each term includes a medical practitioner attending on or conferring with a patient in connection with 'medical treatment' or 'surgical treatment' that is proposed or has already occurred. The matters which I have mentioned, as being within the meaning of 'medical attendance' or 'surgical attendance', are not, of course, an exhaustive statement.

(a) the language of cl 17(1) of sch 1, in the context of the provisions of the Act which I have enumerated at [99] above and the purposes of the statute as specified in s 3; and

indicate that there is a required connection, for the purposes of cl 17(1), between the worker's 'injury' (as defined in s 5(1) of the Act), on the one hand, and the relevant medical or surgical attendance, on the other. The connection, as discerned by implication, is as follows.

112 The relevant medical or surgical attendance must be by a medical practitioner for the purpose of examining, advising or reviewing the patient in connection with, or diagnosing or investigating:

(a) the 'injury' (as defined in s 5(1) of the Act) of the worker which is compensable under the Act; or

(b) a disability that is wholly or partly caused by or attributable to the compensable 'injury'; or

(c) any symptoms or effects wholly or partly caused by or attributable to the compensable 'injury' or a disability within par (b).

113 In my opinion, expenses incurred or likely to be incurred in respect of medical or surgical attendance or treatment will be 'reasonable' expenses, within cl 17(1) of sch 1, if :

(a) it was or is reasonable, in all the circumstances, for the relevant medical or surgical attendance or treatment to be given, provided or undertaken; and

(b) the amount of the expenses incurred or likely to be incurred was or is reasonable in all the circumstances.

114 The reasonableness of expenses incurred or likely to be incurred will in each case involve a question or questions of fact.

115 In the present case, whether the amount of the expenses incurred by the appellant in respect of the C5/6 disc replacement surgery was reasonable in all the circumstances was not in dispute.

116 Mr Bannan performed the C5/6 disc replacement surgery because, in his opinion, the most likely source of the appellant's neck pain was his C5/6 disc, which was 'quite unhealthy', and the insertion of a C5/6 artificial disc offered 'the best chance of ... improving [the appellant's] neck pain'. See Mr Bannan's report dated 4 September 2012.

117 However, Arbitrator Rutherford did not accept Mr Bannan's opinion on this point. The arbitrator found, on the basis of Mr Wong's evidence, that in 2012 the appellant suffered a 'fresh' injury, namely a mechanical neck injury, and it was this injury (and not a neurological injury) which caused the neck symptoms and headaches experienced by the appellant [167] - [169], [178(c)].

118 The arbitrator rejected Mr Bannan's opinion, expressed in his reports dated 11 December 2012 and 21 May 2013, that the appellant injured his C5/6 disc in a work-related accident in 2008 [66], [139] - [141]. The arbitrator found, on the basis of the evidence of Dr Silbert and Mr Alexeeff, that the appellant's C5/6 disc deteriorated over a period of time and 'from a medical point of view at least is a consequence of the C6/7 fusion', which the appellant underwent in 1998 [178(c)], [180]. The appellant's incapacity resulted from the 2012 injury and not from the 2008 injury [170].

119 Arbitrator Rutherford was not satisfied, on the evidence, that 'the need for the C5/6 disc replacement surgery was a result of a compensable injury and/or work-related activities as there is little or no evidence to establish a connection between work activities and the need for disc replacement surgery' [183]. The arbitrator elaborated:

In particular, I am not satisfied the evidence establishes the C5/6 disc was injured in that the evidence does not establish that the deterioration of the disc was a result of a recurrence, aggravation or acceleration of a pre-existing condition where the employment was a contributing factor. Indeed, the bulk of the medical evidence points to the opposite conclusion, that work had no contribution, or at best, an insignificant contribution [183].

120 In my opinion, it is apparent, from the arbitrator's reasons, that he found in effect that Mr Bannan did not perform the C5/6 disc replacement surgery for the purpose of alleviating, remedying, curing or preventing the deterioration of:

(a) an 'injury' (as defined in s 5(1) of the Act) of the appellant which was compensable under the Act; or

(b) a disability that was wholly or partly caused by or attributable to a compensable 'injury'; or

(c) any symptoms or effects wholly or partly caused by or attributable to a compensable 'injury' or a disability within par (b).

121 Arbitrator Rutherford did not, understandably, deal with the appellant's primary contention in this appeal that the C5/6 disc replacement surgery was medically and surgically appropriate for the appellant's mechanical neck pain or his alternative contention that, when the operation was performed, the cause of the appellant's neck pain had not been identified and the operation was medically and surgically appropriate with a view to relieving the pain. Also, the primary judge, understandably, did not deal with those contentions. As I have mentioned, the appellant materially changed his position in this court compared to his case before the arbitrator and his case in the District Court. The contentions relied on by the appellant in this appeal were not advanced in the arbitration proceedings or the District Court proceedings.

122 In particular, it was not part of the appellant's case before the arbitrator that:

(a) the C5/6 disc replacement surgery was necessary or appropriate to address the symptoms associated with his 2012 mechanical neck injury; or

(b) it was or might have been 'medically reasonable' for the C5/6 disc replacement surgery to be undertaken in the context of treating the pain and other symptoms associated with his 2012 mechanical neck injury,

and, accordingly, those issues were not addressed in the medical evidence or by the arbitrator.

123 Counsel for the appellant, when confronted with this obstacle at the hearing before this court, sought to rely on statements made by Mr Bannan in his report dated 4 September 2012 (appeal ts 13). I have set out the relevant part of that report at [81] above. However, the statements in question do not assist the appellant. Mr Bannan's opinion to the effect that surgery for the insertion of a C5/6 artificial disc offered 'the best chance of [the appellant] improving his neck pain' was based on his diagnosis that the most likely source of the pain was the C5/6 disc. As I have mentioned, the arbitrator rejected Mr Bannan's diagnosis. The arbitrator found, as a fact, that the 2012 injury was a 'fresh' injury. It was a mechanical neck injury and not a neurological injury. Also, as I have mentioned, the arbitrator found, as a fact, that Mr Bannan's reports were 'not particularly helpful' and his reports should be accorded 'little weight'.

124 The findings of fact and the reasons of Arbitrator Rutherford are inconsistent with the case now sought to be put by the appellant in this appeal. I refer, in particular, to the findings of fact and the reasons which I have summarised at [38] - [42], [84] and [117] - [120] above. The arbitrator did not make any material error in his approach to fact-finding and there is no basis on which this court could properly set aside his findings of fact or the reasoning which underpins those findings.

125 I am satisfied, on the basis of the matters to which I have referred at [116] - [124] above, that it is not in the interests of justice, in the circumstances, to grant leave to appeal.

126 I would refuse leave to appeal and dismiss the appeal.

127 NEWNES JA: I agree substantially with Buss JA, for the reasons his Honour gives, as to the proper construction of cl 17(1) of sch 1 of the

Workers' Compensation and Injury Management Act 1981 (WA) on the question of the required connection between the worker's compensable injury and the 'medical or surgical attendance and treatment'. In my opinion, the medical or surgical attendance and treatment must be for the purpose of alleviating, remedying, curing, or preventing the deterioration of:

(b) a disability that is wholly or partly caused by or attributable to the compensable injury; or

(c) any symptoms or effects wholly or partly caused by or attributable to that compensable injury or disability.

128 Whether the expenses of such medical or surgical attendance and treatment are 'reasonable' for the purposes of cl 17(1) will depend upon all the circumstances of the case, including the appropriateness and cost of the medical or surgical attendance and treatment.

129 For present purposes, it can be assumed that the appellant's surgery on 30 October 2012 to insert the artificial C5/6 disc came within the meaning of 'medical or surgical attendance or treatment' in cl 17 of sch 1 and it is therefore unnecessary to attempt to explore the metes and bounds of that expression.

130 However, as Buss JA has explained, on the issue of whether there existed the required connection between the compensable injury and the surgical treatment, not only was the appellant's case on appeal materially different to the case he ran below, it was also not supported by the medical evidence or the arbitrator's findings of fact. In the circumstances, there is no basis upon which this court might properly interfere with the decision of the primary judge. I agree with the orders his Honour proposes.