State of New South Wales v Bishop

Court of Appeal (NSW)|2014-10-15|Before: Basten JA, Emmett JA, Gleeson JA, O'Grady P

Judgment 1BASTEN JA: In May 2004 the respondent, Karen Bishop, was working as a cleaner at Camden District Hospital, being employed in the NSW Health Service. She injured her back. There was no dispute that she suffered a work related injury and was entitled to compensation under the Workers Compensation Act 1987 (NSW). The present dispute arises from a subsequent event. On 25 June 2011 she suffered a fall at home, fracturing her left foot and ankle. Her employer's worker's compensation insurer denied liability for the 2011 injuries on the basis that they were not caused by the 2004 work related injury. 2The dispute became the subject of an application to the Workers Compensation Commission. An arbitrator determined that the 2011 injury was not consequential upon the earlier injury and accordingly upheld the employer's denial of liability. From that determination, Ms Bishop appealed to a Presidential member of the Commission. Her appeal was upheld, Deputy President O'Grady finding that the injuries suffered in the fall in 2011 were causally related to the 2004 injury: Bishop v Camden District Hospital [2013] NSWWCCPD 40. From that decision the employer appealed to this Court. 3To succeed in its appeal, the employer must establish that it is aggrieved by the decision of the Deputy President "in point of law": Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "Workplace Injury Act"), s 353(1). The error of law relied upon was that the Deputy President exceeded his statutory authority by revoking the decision of the arbitrator and making a new decision in its place in circumstances where he had no power to take those steps. 4The nature of the proceedings, both before the arbitrator and before the Deputy President, have been fully recounted by Emmett JA and need not be repeated. I agree that the appeal must be dismissed. On that basis, the principal issues may be addressed briefly.

Factual errors 8Ms Bishop's case as to causal connection involved three steps, namely: (a) she fell in June 2011 because her left leg gave way; (b) her left leg had a tendency to give way, and (c) that tendency was causally related to her spinal injury in 2004. 9The first step, namely that her left leg gave way at the time of the 2011 injury, depended largely on acceptance of Ms Bishop's own account of the event. The Deputy President said that the arbitrator had made no express finding as to whether he accepted her evidence in that regard, but had not rejected it. The Deputy President accepted that there was an implicit finding that her description was correct: at [69]. 10There was a question as to whether the second step was a necessary element in Ms Bishop's case: the Deputy President held that it was not, unless the expert medical evidence made it such. He stated at [69]: "The real questions before the Arbitrator, in my view, were whether the evidence of 'giving way' on the day of the fall should be accepted and, if so, whether, or not, the expert medical evidence supported the existence of a causal nexus between the back injury and the giving way of the leg." 11There was no error in this passage, but it provided the basis for a finding of error on the part of the arbitrator in the critical passage in his reasoning. That passage appeared in the arbitrator's reasons at par 36 in the following terms: "Firstly, the length of time between May 2004 and June 2011 is a significant factor for the applicant to overcome to make the relevant causal connection between the two events. A lengthy period of time between events, however is not determinative to deny the causal connection, see Kooragang. However, the length of time if elongated presents itself as a problem which is compounded by the complete lack of complaints of left leg collapses made by the applicant to medical practitioners. This is [sic] lack of recording of any complaint by Dr Mechreky who has been the applicant's general practitioner during that period is telling. The factual evidence of such collapses of the left leg from the applicant herself do not make out a pattern of such an occurrence but only an occasional happenstance. Further, the medical evidence does not provide the cogent assistance to provide the necessary link in the causal chain. One therefore cannot have the requisite satisfaction that the event of the 25 June 2011 had such a connection. On this issue there will be an award for the respondent." 12The Deputy President dealt with the evidence that the left leg had given way on occasions prior to the fall in June 2011 by setting out Ms Bishop's own evidence to that effect and her statements that she had reported the "giving way" to her two treating doctors, Dr Mechreky and Dr Dan: at [65]-[66]. The Deputy President further noted that counsel for the employer had relied on the absence of any corroborating evidence and asserted that Ms Bishop's account was "unreliable": at [67]. The Deputy President continued: "[68] It may be seen that the evidence does not establish when the 'giving way' first allegedly occurred, however it is clear by inference, upon acceptance of Ms Bishop's evidence on this point, that it had occurred 'on several occasions' a number of years after the back injury. That inference may be drawn from Ms Bishop's evidence that she is not sure whether the leg had given way by the time she had first consulted Dr Dan, that being in December 2007. [69] The Arbitrator has stated that the absence of recorded complaint is 'telling'. However, no finding was made rejecting the evidence of Ms Bishop that such was reported by her. Of significance is the acceptance by the employer that Ms Bishop had reported a giving way of the leg, on the occasion of the fall, to Dr Mechreky the day following the fall (at T69). It seems, but is not entirely clear, that the Arbitrator has accepted Ms Bishop's evidence given his statement in the course of Reasons (at [36]): 'the factual evidence of such collapses of the left leg from [Ms Bishop] herself do not make out a pattern of such an occurrence but only an occasional happenstance'." 13In short, the arbitrator failed to make findings which, if directly addressed, would have determined whether Ms Bishop's evidence of prior complaint should have been accepted, absent any record of such complaint in the medical notes. On the other hand, the arbitrator appears to have accepted that there had been prior occurrences (described as "an occasional happenstance") but not a "pattern" of such occurrences. The relevance of the distinction was not explained, but could only have been found in the medical evidence, to which no reference was made for that purpose. 14The findings of the Deputy President of factual error in these respects did not demonstrate any error in point of law. At the very least, findings of factual error in these terms was reasonably open to the Deputy President. 15The Deputy President also identified error in the conclusory statement that "the medical evidence does not provide the cogent assistance to provide the necessary link in the causal chain." 16The Deputy President accepted that this proposition was inadequate as a statement of reasons for the ultimate conclusion. He did so on a number of bases. First, he noted Ms Bishop's complaint as to the apparent emphasis in the arbitrator's reasons on the length of time which elapsed between the 2004 back injury and the events of 2011. The arbitrator had accepted that the lapse of time was "not determinative to deny causal connection" (reasons at par 36) but noted that the relevance of the period would depend upon "a proper evaluation of the evidence and argument as advanced": at [61]. Given the Deputy President's insistence that the causal nexus must depend upon the expert medical evidence, it is apparent that it was the medical evidence to which he was referring in this passage: see also at [63] and [69]. He returned to the adequacy of the analysis of the medical evidence at [73], expressing the following opinion: "In the present matter the Arbitrator has recorded the competing submissions concerning the expert evidence. Some detail of that evidence is noted in the course of that summary. However, there is present in those Reasons no deliberation concerning the arguments advanced, nor any evaluation made by the Arbitrator of the expert evidence before reaching his conclusion which is noted at [45] above. Such reasons (noted at [46] above) as were expressed by the Arbitrator following the statement of his conclusion were not, in my opinion, sufficient to discharge the obligation upon him concerning provision of reasons. My further reasons for so concluding are stated below. That failure to provide reasons constitutes error, and for that reason alone the decision must be revoked on this appeal." 17Drawing together the strands underlying this conclusion, there was (a) an absence of reference to a medical basis for placing weight upon the lapse of time; (b) the failure to address expressly the evidence of Dr Conrad and Dr Harrison, each of whom identified a relevant causal nexus between the 2004 injury and the fall in 2011 (referred to at [78]-[80]) and (c) the failure to address the radiological evidence, as assessed by Dr Dan: at [81]-[82]. 18If the proper course for this Court is to consider whether the conclusion as to the adequacy of reasons was reasonably open to the Deputy President, I would have no doubt that it was. If the proper course is for this Court to assess the reasons of the arbitrator for itself, I would be satisfied that the reasons were inadequate. In doing so, it is appropriate to emphasise a matter correctly identified by the Deputy President, but which could have been given further weight, namely the importance of finding support in the expert medical opinion for placing emphasis on the lapse of time. 19The arbitrator's reasoning appeared at pars 29-37 in his statement of reasons. Paragraphs 29-32 referred to the statutory scheme and were unexceptionable. Paragraph 33 began with the statement that dealing with "the legal principle of causation one recognises that events or symptoms which occur soon after an incident or indeed many years later can, upon a proper evidentiary basis, be linked to an earlier incident." In seeking to expand upon that proposition the arbitrator set out a lengthy extract from the reasons of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464. The extract commenced with the trite but critical proposition that "each case where causation is an issue in a worker's compensation claim, must be determined on its own facts": at 463G. The passage continued, stating that "the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation", but noted that "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": at 464B. The arbitrator then referred to the frequently cited "common sense" approach to the question of causation discussed in the judgment of Mason CJ in March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 at 515-516 (with the agreement of Toohey and Gaudron JJ). The arbitrator said that he was conducting a "common sense evaluation of the facts and medical evidence in this case" and concluded that the causal connection had not been established: at par 35. As then appears from the passage at par 36 set out above, the lapse of time was treated as "a significant factor for the applicant to overcome to make the relevant causal connection". 20In the present case, the question of causation was purely a question of fact for the arbitrator. How other courts have dealt with such questions on their own facts will not provide precedents, because they are not statements of legal principle. The statement from Kooragang that "the mere passage of time ... is not determinative" is not a legal principle, nor does it give helpful guidance in the present case. The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant. Further, to discuss a "link in the chain of causation" becoming attenuated (not an entirely happy metaphor) may also mislead. In a case of mesothelioma, a period of seven years between exposure to asbestos and diagnosis may be too short to indicate any causal connection. Nor are references to "common sense evaluation" necessarily helpful: certainly in the present circumstances they cannot excuse a failure to address a conflict in the expert medical evidence. 21That analysis was simply absent. If it had been carried out, then the statement of reasons was defective; it if had not been carried out, there was a constructive failure on the part of the arbitrator to exercise his statutory function. On either view, there was legal error.

Conclusions on grounds of appeal 22The proposition that the Deputy President had not identified any error of fact or law was unsustainable. The errors of fact and law referred to above were identified without error on his part in point of law. There was no contravention of s 352 of the Workplace Injury Act. 23A final ground of appeal alleged that the Deputy President had erred in point of law by substituting his own common sense evaluation of the causal chain for that of the arbitrator. The focus of this complaint was by no means clear and was not clarified in the written submissions filed for the appellant. There was a somewhat muted suggestion that, having found error, the Deputy President then undertook a full "review" of the case in contravention of the statement in s 352(5) that an appeal is "not a review or new hearing"; rather, the Deputy President is limited to "the correction of" any identified error warranting intervention. 24It is not necessary to determine whether this submission would have traction in other circumstances, such as a case where there were several issues to be resolved and the error identified affected only one issue. That is not this case: there was only one issue in this case, namely the question of causation. The errors identified by the Deputy President required that the finding on causation be set aside. To correct that error, the Deputy President was entitled to form his own conclusion as to the proper resolution of the matter. 25In the course of oral argument, counsel for the appellant (who did not sign the written submissions) conceded that, if the Deputy President had properly identified error entitling him to set aside the order of the arbitrator, it would be difficult to identify any error in point of law in the assessment of the evidence undertaken by the Deputy President. The difficulty was not surmounted. Subject to resolution of one further issue, the appeal must fail.

Identification of appellant 26The notice of appeal identified the appellant as "Camden District Hospital". The submissions in this Court named the appellant as "South West Sydney Local Health District t/as Camden District Hospital". The reference to Camden District Hospital appeared to be inapposite either on its own or as a business name for a different government entity. In the course of the hearing, counsel for the appellant advised the Court that the correct legal entity was "South West Sydney Local Health District" and a direction was given that the appellant be so named: Tcpt, 22/07/14, p 1(40). However, even that variation appears to be incorrect. 27Local health districts are constituted under the Health Services Act 1997 (NSW), s 17 and Sch 1. The proper name of the local health district which includes Camden is "South Western Sydney Local Health District". However, a local health district cannot employ staff: s 22(2). Accordingly, it cannot be the employer of Ms Bishop. Rather, the government of New South Wales is empowered to employ staff to enable local health districts, and the public hospitals that they control, to exercise their functions: s 116(1)(a). Such persons constitute the "NSW Health Service": s 115(1). 28The Secretary of the Ministry of Health (referred to in the Act as the "Health Secretary") is empowered to exercise on behalf of the government "the employer functions of the Government in relation to the staff employed in the NSW Health Service": s 116(3). However, that statutory appointment of an agent does not derogate from the conclusion that the actual employer of Ms Bishop was the State Government. Thus, the employer should be identified, pursuant to the Crown Proceedings Act 1988 (NSW), as the State of New South Wales. The proceedings in this case should be so entitled and the direction given in the course of the hearing should be revoked.

Orders 29In her written submissions, Ms Bishop asserted that the appellant had failed to establish that the amount in dispute satisfied the statutory requirement to permit the appeal to be brought as of right. For the reasons noted above, that submission should not be accepted. If correct, it would have led to the dismissal of the appeal as incompetent and should only properly have been made in support of a motion to strike out the appeal on that ground. As there was no such motion, it is not necessary to make any order with respect to that matter. 30It was accepted in the course of oral argument that the case was one in which costs should follow the event: an order to that effect should be made. 31It follows that the Court should make the following orders: (1) Revoke the direction that the proceedings identify the appellant as "South West Sydney Local Health District". (2) Direct that the proceedings identify the appellant as "State of New South Wales". (3) Dismiss the appeal. (4) Order that the appellant pay the respondent's costs of the proceedings in this Court. 32EMMETT JA: This appeal is concerned with an injury to the left foot and ankle suffered by the respondent, Ms Karen Bishop, on 25 June 2011 (the 2011 Injury). Ms Bishop claims that the 2011 Injury was the result of disability caused when she suffered an earlier injury to her lumbar spine on 6 May 2004 (the 2004 Injury) in the course of her employment at Camden District Hospital by the appellant, which, for the reasons given by Basten JA at [26]-[28], should be identified as the State of New South Wales (the State). While the State accepts that Ms Bishop suffered the 2004 Injury in the course of her employment, it disputes that the 2011 Injury had any causal connection with the 2004 Injury. 33On 18 July 2012, Ms Bishop lodged with the Workers Compensation Commission (the Commission) an application to resolve a dispute between her and the State (the Dispute Application). Ms Bishop claimed lump sum compensation for alleged whole person impairment of her lumbar spine and her left foot and ankle. The State admitted the 2004 Injury, but disputed whether there was any connection between the 2004 Injury and the 2011 Injury, the latter of which she claimed she suffered when her leg gave way in the garden of her home and she fell. 34The dispute was referred to Mr Jeffrey Phillips SC as arbitrator (the Arbitrator). The parties agreed that, if the Arbitrator found no causal link between the 2004 Injury and the 2011 Injury, the matter should be referred to the Registrar of the Commission to have an approved medical specialist assess the additional whole person impairment of Ms Bishop's lumbar spine as a result of the 2004 Injury. The Arbitrator determined that, in relation to the claim for a consequential injury to Ms Bishop's foot and ankle, there should be an award for the State. Accordingly, the Arbitrator referred the matter to the Registrar for assessment of whole person impairment in relation to Ms Bishop's lumbar spine. 35On 17 April 2013, Ms Bishop lodged an application with the Commission by way of appeal against the decision of the Arbitrator (the Appeal Application) under s 352 of the Workplace Injury Management and Workers Management Act 1998 (NSW) (the Management Act). Under s 352(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. Section 352(5) of the Management Act provides that such an appeal 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. Section 352(5) provides specifically that the appeal is not a review or a new hearing. 36On 25 July 2013, the Commission, constituted by Deputy President O'Grady (the Presidential Member), found that the Arbitrator made an error of law in failing to give adequate reasons and made an error of fact in finding there was no causal link between the 2004 Injury and the 2011 Injury. The Presidential Member revoked the order for remission to the Registrar and made an order, in its place, that the matter be remitted to the Registrar for referral to an approved medical specialist for assessment of any additional whole person impairment of Ms Bishop's lumbar spine as a result of the 2004 Injury and of any whole person impairment with respect to her left foot and ankle following a fall on 25 June 2011, which fall and consequential loss (being the 2011 Injury) was found to be causally related to the 2004 Injury. The Presidential Member also ordered the State to pay the medical and associated expenses reasonably incurred in respect of the treatment of Ms Bishop's foot and ankle. 37By notice of appeal filed on 24 October 2013, the State appeals to this Court from the orders made by the Presidential Member. Under s 353(1) of the Management Act, if a party to any proceedings 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 this Court. However, under s 353(4)(c), an appeal in which the amount of compensation in dispute is less than $20,000 may be made only with the leave of the Court. The State foreshadowed an application for the grant of leave, if leave is necessary.

Ms Bishop's Claim 38The basis of Ms Bishop's claim for compensation was that the 2004 Injury had continuing consequences for her left leg. She asserted that, because of the impairment to her lumbar spine caused by the 2004 Injury, her left leg gave way at home in 2011 and she fell down and fractured her left foot and ankle. 39Ms Bishop included in the Dispute Application reports from a number of medical practitioners, including:

Associate Professor Noel Dan, a neurosurgeon,
Dr Matthew Giblin, an orthopaedic surgeon,
Dr John Harrison, an orthopaedic surgeon, and
Dr Peter Conrad, a surgeon. 40Associate Professor Dan reported on 5 December 2007 that, following the 2004 Injury, Ms Bishop developed back pain that resulted in problems with walking, sitting and lying. He reported that the pain started in the lower back and extended to the buttocks and the posterior thighs. Sometimes, when the pain was very bad, it would spread to the left ankle and Ms Bishop would lose feeling in that leg. Associate Professor Dan arranged for a bone scan. On 31 January 2008, Assoc Prof Dan reported that the bone scan showed some minor changes in Ms Bishop's lumbar spine, but not enough to explain her pain. He suggested the possibility of a piriformis MRI scan in two or three months if her condition did not settle. However, on 10 March 2011, Assoc Prof Dan reported that Ms Bishop had told him that she did not have the MRI because "she got better". He reported that she had been "fairly stable" until a couple of months prior to March 2011, when "the pain increased". Ms Bishop described lower back pain "with twinges down both lower limbs to the soles, worse on the left side". 41In the meantime, Dr Giblin reported on 2 August 2010 on his examination of Ms Bishop. Dr Giblin said that most of her pain was in her lower lumbar spine with radiation into the upper thighs, but that "there is no radiation past the knees and no associated paraesthesia". He referred to a CT scan that confirmed degenerative changes in Ms Bishop's spine, but said that she did not have symptoms associated with radiculopathy. 42On 5 October 2011, Dr Harrison reported that Ms Bishop had told him that in June 2011, she simply walked out the back of her house and "experienced sudden pain in her left leg and back, such that her left leg gave way". She twisted and sustained an injury to her left ankle and fell to the ground. Dr Harrison said that Ms Bishop had "what appear[ed] to be radicular symptoms affecting [the] left leg". 43Finally, on 14 December 2011, Dr Conrad reported that Ms Bishop had told him that she had an injury on 25 June 2011 when, "due to weakness in her left leg, her left leg gave way at home and she fell down and fractured her left foot and ankle". Dr Conrad reported that Ms Bishop developed some left-sided non-verifiable radiculopathy and that, due to that weakness, Ms Bishop fell on 25 June 2011. Dr Conrad said that Ms Bishop had ongoing pain in her back, some non-verifiable radiculopathy in her left leg, and some pain and stiffness in her left ankle. Dr Conrad calculated Ms Bishop's whole person impairment as a result of the 2004 Injury, complicated by the 2011 Injury, which, Dr Conrad said, had a direct nexus to the 2004 Injury on the basis of weakness in the left leg. Dr Conrad calculated Ms Bishop's whole person impairment as 13 percent, being 7 percent for her lumbar spine and 6 percent for her left ankle. 44In the Dispute Application, Ms Bishop claimed compensation for both permanent impairment (based on the calculation made by Dr Conrad) and pain and suffering. In its reply of 8 August 2012, the State confirmed that it disputed liability in relation to the 2011 Injury, on the basis that Ms Bishop's current incapacity was not related to the 2004 Injury and that the injury to her ankle in 2011 was entirely related to a separate incident. 45In response to Ms Bishop's claim, the State relied on a report of 30 September 2011 from Dr Thomas Silva, an orthopaedic surgeon, which was attached to the State's reply. In his report, Dr Silva expressed the opinion that the fall on 25 June 2011, causing the 2011 Injury, had no bearing on the 2004 Injury. Dr Silva was not persuaded that any significant lumbar spine disability had contributed directly or indirectly to the incident on 25 June 2011. He said that the lumbar spine injury could not be blamed for Ms Bishop's rolling of her left ankle in her backyard in June 2011 and that the left ankle injury was not related to the lumbar spine injury. He said that there was no continuing lower back or lumbar radiculopathy in the left leg causing any weakness of the left ankle. Dr Silva reported that he did not see any evidence to indicate left sciatica or neurovascular deficit in the left ankle to account for the giving way of the left ankle in June 2011. 46The evidence before the Arbitrator included all of the clinical notes of Dr Hosny Mechreky, Ms Bishop's general practitioner, concerning treatment of Ms Bishop from August 2000 through to December 2012, including notes made in the course of a consultation on the day after the 2011 Injury. Dr Mechreky recorded on 26 June 2011 that Ms Bishop told him that, when she was walking, due to her back pain, her leg was not stable and when she was walking out of the house she felt "something funny" in her left leg and her left leg and knee gave way and she twisted her ankle, exacerbating her lower back pain. 47The evidence also included a report to the State's workers' compensation insurer from Dr Con Kafataris, an injury management consultant, dated 16 January 2006. Dr Kafataris reported that Ms Bishop currently complained of constant lower back pain that was felt in the buttock and that there was non-specific numbness over the left foot. Ms Bishop apparently told Dr Kafataris that the symptoms were aggravated by sitting for more than 15 minutes and walking around the block and were relieved by painkillers. 48Dr Kafataris reported his opinion that Ms Bishop presented with non-specific lower back pain, with "no evidence of significant radiculopathy or disc injury". He said that the causes of Ms Bishop's more recent recurrences were "unclear" and that previous imaging with an MRI scan had revealed nothing other than disc degeneration. He said that if Ms Bishop continued to complain of significantly worsening lower back pain, then further investigation in the form of a repeat MRI scan and/or bone scan would need to be considered.

The Arbitrator's Decision 49The Arbitrator began by summarising Ms Bishop's evidence. She said that when she walks, her leg all of a sudden "just gives way". She said that it had done so on a number of occasions prior to 25 June 2011. Sometimes she fell to the ground; sometimes she would grab something to save her from falling. 50Ms Bishop said that she saw Dr Mechreky the day after the 2011 Injury occurred. Ms Bishop told the Arbitrator that to the best of her recollection, she told Dr Mechreky that she walked out into the backyard, her leg gave way, and she "just rolled her ankle" and went down. 51It was suggested to Ms Bishop that she would have told her general practitioner, Dr Mechreky, everything, and yet she did not tell him prior to 25 June 2011 that her leg had been giving way. Ms Bishop was adamant that her left leg had given way on occasions prior to that date, and said that she believed that she would have told Dr Mechreky. She also said that she told Dr Mechreky that she was experiencing pain in her buttocks and in her left leg and that she was getting feelings of pins and needles in her lower limbs. However, she agreed that there was a difference between pain in the left leg and the left leg collapsing. 52The State submitted that the Arbitrator could not, on the balance of probabilities, draw the connection between the 2004 Injury and the fact that Ms Bishop's left leg was weakened and gave way many years later. Reference was made to the fact that Dr Mechreky had not recorded Ms Bishop's left leg giving way prior to the time of the 2011 Injury, although there was a record of some knee pain prior to that time, recorded in May 2011. The State submitted that there could be many reasons why Ms Bishop had fallen over and the Arbitrator needed to be satisfied, on the balance of probabilities, that the fall on 25 June 2011 was causally related to the lower back injury suffered many years before. 53Counsel for Ms Bishop submitted that Ms Bishop had been steadfast in her assertion that her left leg had, from time to time, given way prior to 25 June 2011. It was submitted that Ms Bishop should be accepted as a witness of truth and that the Arbitrator should find that the events that she recounted on 25 June 2011 did in fact take place. Counsel conceded that there was nothing in the clinical notes that would corroborate the assertion by Ms Bishop that she had complained about her leg giving way before June 2011. 54The Arbitrator asked counsel for Ms Bishop whether there was any medical opinion to the effect that impingement of the nerve could lead to the leg giving way. He was directed to aspects of Dr Silva's report that counsel for the State apparently conceded misquoted the effects of a CT scan that Ms Bishop had had. He recorded that the highest that Ms Bishop's submissions went in relation to the factual connection between the 2004 Injury and the giving way of her leg in 2011 was that occasionally her leg had given way and, on past occasions, she had been able to protect herself by using a rail, leaning against the wall. Counsel for Ms Bishop submitted that it was not fatal to a finding in her favour that complaints of her left leg giving way were not recorded in any clinical notes. However, the Arbitrator accepted that counsel was able to point to references to left leg problems and symptoms over the years. 55In his findings and reasons, the Arbitrator observed that, when dealing with causation, one recognises that events or symptoms that occur many years after an incident can, upon a proper evidentiary basis, be linked to that earlier incident. He said that that was particularly so with personal injury, where an injury to one body part on one occasion may put in place events or circumstances that cause injury to another body part or system. The Arbitrator accepted that some injuries of a secondary nature may not be symptomatic for many years, but that, if there is an evidentiary basis for it, a real connection may be found. 56The Arbitrator accepted that each case in which causation is in issue in a workers' compensation claim must be determined on its own facts. He said that what is required is a commonsense evaluation of the causal chain. The mere passage of time between a work incident and subsequent incapacity is not determinative of the entitlement to compensation. The Arbitrator cited Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 for those principles. 57The Arbitrator then said that, in conducting the commonsense evaluation of the facts and medical evidence called for by those principles, the causal connection between the 2004 Injury to Ms Bishop's lumbar spine and the 2011 Injury to her left foot and ankle had not been established. First, the Arbitrator said, the length of time between May 2004 and June 2011 was a significant factor for Ms Bishop to overcome to make the relevant causal connection between the two events. He said that, while a lengthy period of time between events is not determinative to deny a causal connection, the length of time, if elongated, presents itself as a problem, which, he said, was compounded by the complete lack of complaint of left leg collapses made by Ms Bishop to medical practitioners. He considered that the lack of any complaint by Ms Bishop to Dr Mechreky, who had been her general practitioner during the time, was "telling". 58The Arbitrator then said that "the factual evidence of such collapses of the left leg from [Ms Bishop] do[es] not make out a pattern of such an occurrence, but only an occasional happenstance". Further, the Arbitrator said, the medical evidence did not provide the cogent assistance to establish the necessary link in the causal chain. He concluded that one therefore could not have the requisite satisfaction that the event of 25 June 2011 had such a connection to the event of May 2004.

The Decision of the Presidential Member 59In her submissions on appeal dated 11 April 2013, which were attached to the Appeal Application, Ms Bishop said that the decision of the Arbitrator was affected by error of fact and law in determining that he was not satisfied that there was a causal link between the accepted back injury of 6 May 2004 and the consequential left leg injury on 25 June 2011. Ms Bishop also said that the Arbitrator failed to give proper reasons for making that determination. The submissions then dealt with the length of time between the 2004 Injury and the 2011 Injury, the lack of recording of complaints of the left leg giving way, and the absence of medical evidence providing a necessary link in the causal chain. 60The Presidential Member characterised the appeal as concerning a challenge to the Arbitrator's finding that there was no proven causal connection between Ms Bishop's compensable back injury received in 2004 and the fall that occurred in June 2011 at Ms Bishop's home, the consequence of which was a significant leg injury. The Presidential Member recorded Ms Bishop's grounds as being error on the part of the Arbitrator in the following respects:

in determining that there was no causal link between the 2004 Injury and the consequential left leg injury received on 25 June 2011; and,
failing to give proper reasons for the determination of the dispute. 61The Presidential Member then summarised the evidence in some detail and referred to a number of radiological studies that were in evidence. The reports were summarised. He then summarised the submissions that had been made to the Arbitrator and the Arbitrator's decision. 62The Presidential Member said that the challenge raised by the first ground of appeal concerned the Arbitrator's factual finding as to the issue of causation. He said that an error would be made out where material facts had been overlooked, or had been given undue or too little weight in deciding the inference to be drawn, or where the available inference in the opposite sense to that chosen by the trial judge was so preponderant in the opinion of the appellate court that the trial judge's decision is wrong (citing Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506). The challenge raised by the second ground of appeal, the Presidential Member said, was as to an alleged failure to give proper reasons, which would constitute an error of law. However, he said that the submissions in support of the appeal did not differentiate between the first ground, of error of fact, and the second ground, of error of law. He said that the thrust of Ms Bishop's argument with respect to both grounds was that there was overwhelming evidence of a causal link between the 2004 Injury and the event of 25 June 2011, and that the Arbitrator failed to address that evidence and its significance. The Presidential Member therefore addressed the grounds concurrently. 63Before doing so, however, the Presidential Member observed that the State had argued that Ms Bishop's submission failed to reflect the limits imposed by s 352(5) of the Management Act, namely, that an appeal is limited to determination of relevant error of fact, law or discretion. However, he observed that the State's challenge to the grounds of appeal were "less than lucid" in their terms. 64The Presidential Member characterised Ms Bishop's challenge in her first ground as being a challenge to a finding as to an ultimate fact in issue, namely, causation. He considered that Ms Bishop may be entitled to relief under s 352(7) of the Management Act if an error as to the finding of causation had been made and therefore rejected the submission made on behalf of the State that Ms Bishop had not adequately identified the relevant error of fact, law or discretion. 65The Presidential Member formulated the question before the Arbitrator as being whether the 2004 Injury had resulted in the alleged permanent impairment that was the consequence of the fall in June 2011. He assumed that the Arbitrator had recognised that it was necessary to determine whether the impairment that resulted from the fall in June 2011 was causally related to the 2004 Injury. 66The Presidential Member then referred to the reliance placed by the Arbitrator on the proposition that a commonsense evaluation of the causal chain was required, and summarised the Arbitrator's reasons for concluding as he did in relation to causation. He said that there were three distinct reasons stated by the Arbitrator for his ultimate conclusion, being:
the length of time between the 2004 Injury in and the 2011 Injury;
the lack of recording of complaints of the left leg giving way; and
the medical evidence not providing the necessary link in the causal chain. The Presidential Member then addressed those three reasons. 67The Presidential Member observed that the Arbitrator had acknowledged that the period of time between the 2004 Injury and the 2011 Injury, a period of seven years, was not determinative to deny the causal connection. He referred to Ms Bishop's contention that the seven-year interval was an irrelevant consideration and said that that submission would not be made out if the Arbitrator's conclusion as to proof of causation after such interval was reached following a proper evaluation of the evidence and argument as advanced. The Presidential Member concluded that the Arbitrator had not undertaken a proper evaluation of the evidence and argument as advanced. 68In dealing with the second basis of the Arbitrator's determination, being the absence of record of complaint by Ms Bishop of her leg giving way, the Presidential Member observed that a great deal of emphasis had been placed on the undisputed absence of any record of such a complaint. He said that the Arbitrator appeared to have accepted that that absence was relevant to the deliberation as to causation, but that it was not apparent from the Arbitrator's reasons why such absence of complaint was relevant to that issue. 69The Presidential Member then referred to Ms Bishop's evidence that, prior to the fall in 2011, she had reported the giving way of her leg to Dr Mechreky and Assoc Prof Dan, although no such complaints were recorded by either of those practitioners. He then said that, notwithstanding the tenor of the cross-examination concerning the absence of corroborating evidence, no submission was put on behalf of the State to the Arbitrator that the credit of Ms Bishop concerning that matter was challenged, although it was put that Ms Bishop's account was unreliable, that her evidence was not persuasive and that she had not discharged her onus. 70The Presidential Member accepted that the evidence did not establish when the giving way of Ms Bishop's leg first allegedly occurred. However, he said that it was clear, by inference, upon acceptance of Ms Bishop's evidence on that point, that it had occurred on several occasions a number of years after the 2004 Injury and prior to the 2011 Injury. The Presidential Member said that that inference could be drawn from Ms Bishop's evidence that she was not sure whether the leg had given way by the time that she had first consulted Assoc Prof Dan in December 2007. 71The Presidential Member said that the Arbitrator had made no finding rejecting the evidence by Ms Bishop that she had reported the leg giving way. He said that it was significant that the State accepted that Ms Bishop had reported her leg giving way to Dr Mechreky on the day following the fall in 2011, and that it seemed that the Arbitrator had accepted Ms Bishop's evidence. The Presidential Member then said that the real questions before the Arbitrator were whether the evidence of giving way on the day of the fall should be accepted and, if so, whether or not the expert medical evidence supported the existence of a causal nexus between the 2004 Injury and the giving way of the leg on 25 June 2011. 72The Presidential Member then dealt with the third basis upon which the Arbitrator concluded that causation had not been proven, being that the expert evidence did not provide the necessary link in the causal chain. The Presidential Member said that Ms Bishop's complaint was that the Arbitrator had failed to give sufficient reasons for that conclusion. 73The Presidential Member accepted that the Arbitrator had recorded the competing submissions concerning the expert evidence. However, he said, there was no deliberation by the Arbitrator concerning the arguments advanced and no evaluation made by him of the expert evidence before reaching his conclusion. The Presidential Member considered that such reasons as had been expressed by the Arbitrator were not sufficient to discharge the obligation to provide reasons. He considered that the failure to provide reasons constituted error and, for that reason, the Arbitrator's decision must be revoked. 74The Presidential Member considered that a number of matters relevant to the question of causation had either been overlooked or been given undue or too little weight by the Arbitrator in reaching his conclusion that Ms Bishop had failed to establish the relevant causal nexus. He then examined the evidence and submissions to determine whether relevant factual error had been made. 75The Presidential Member began by observing that the evidence relied upon by Ms Bishop concerning the question of causation was "scant". However, he considered that, notwithstanding the shortcomings of the evidence, it was clear that the Arbitrator had made no evaluation of the evidence of Dr Conrad and that no reference had been made to the evidence of Dr Harrison, which had been referred to by counsel in the course of submissions. 76The Presidential Member considered that the evidence of Dr Conrad constituted clear and unequivocal evidence of a causal nexus between the 2004 Injury and the fall in June 2011 and its consequences. He said that, although Dr Conrad had not recorded a history of the left leg giving way before the subject fall, it was apparent that Dr Conrad had relied on the history, his knowledge and experience, as well as his observations during physical examination and the radiological findings to which he had access, in reaching the views he expressed. 77The Presidential Member then referred to the report of Dr Harrison that Ms Bishop had started to experience episodes of mechanical lower back pain and then left sciatic discomfort that predisposed her to vulnerability to falls. Dr Harrison expressed the opinion that further investigations were required as the major component to her ongoing discomfort was not strictly ankle-based, but represented radicular pain affecting that left leg. The Presidential Member said that Ms Bishop's case was founded upon the proposition that the 2004 Injury had caused disc damage and that, with time, that condition worsened and she developed radicular symptoms that manifested as left-sided sciatica, which in turn caused weakness and instability in the left leg. 78The Presidential Member then referred to radiological studies relied upon by Ms Bishop which he had summarised earlier. He found that those studies demonstrated an indication of "potential impingement of the existing portions of both L5 nerve roots" and identified "impingement on the L5 nerve roots and the exit foramina at the L5/S1 level bilaterally" and "likely impingement of the existing left L5 nerve root". He said that, while some of the radiological evidence was mentioned by the Arbitrator when summarising submissions, there had been no evaluation of the material. He said that the Arbitrator appeared to have overlooked the possibility that the left-sided sciatic symptoms recorded by Assoc Prof Dan from December 2007 suggested neural involvement or otherwise referred pain. 79Contrary to the evidence summarised by the Presidential Member was the evidence of Dr Silva, who expressed the view that he was not persuaded that Ms Bishop had any significant lumbar spine disability that had contributed directly or indirectly to the rolling of her left ankle in June 2011. Dr Silva said that there was no left-sided sciatica and no neurological compromise. The Presidential Member rejected that opinion for three reasons. First, the history recorded by Dr Silva did not include detail of the alleged fall in June 2011. Dr Silva's opinion appeared to address any contribution to the rolling of the left ankle, rather than possible causation of a fall by reason of radicular symptoms emanating from the lower back. Secondly, Dr Silva did not make any reference to the radiological material. Thirdly, Dr Silva misquoted some of the radiological findings. 80The Presidential Member concluded that, having considered the matters summarised above, which he said appeared to have been overlooked or given undue or too little weight by the Arbitrator, the Arbitrator was wrong to conclude that proof of the causal connection had not been made out. In his view, the progressive nature of Ms Bishop's discal damage, as demonstrated by the radiological studies, considered with the expert medical evidence, established that the Arbitrator had erred in drawing the inferences that led him to his conclusion on that issue. Having found that the reasons expressed by the Arbitrator for his conclusions were insufficiently stated, the Presidential Member considered that the Arbitrator's errors were interrelated. He therefore found that the fall suffered by Ms Bishop on 25 June 2011, and its consequences, resulted from the 2004 Injury.

The Appeal to this Court 81The grounds of appeal relied on by the State may be summarised as follows: (1)The Presidential Member erred in point of law in exceeding the authority conferred by s 352 of the Management Act; (2)The Presidential Member erred in point of law in failing to identify an error of fact, of law, or of discretion; (3)The Presidential Member erred in point of law in determining that the Arbitrator had failed to provide reasons for his decision; (4)The Presidential Member erred in point of law in concluding that the Arbitrator had accepted the evidence of Ms Bishop, when the reverse was evident from the Arbitrator's decision; (5)The Presidential Member erred in point of law by substituting his own "commonsense evaluation of the causal chain" for that of the Arbitrator.

Whether Leave Is Required 82Ms Bishop contended that the State had not established that the amount in dispute in the appeal was at least $20,000. Accordingly, she said, leave was required under s 353(4)(c) of the Management Act. That contention should be rejected. It is clear from the summary contained above that Ms Bishop was claiming compensation for whole person impairment, including pain and suffering. The amount that Ms Bishop would recover if she succeeds fully in her claim exceeds, by more than $20,000, the amount that she would be entitled to recover under the determination made by the Arbitrator. 83Of course, Ms Bishop did not suggest that her claim was other than a bona fide claim. Of course, it may ultimately be rejected. However, that is not the question. If there is a reasonable prospect that Ms Bishop may succeed, on the basis of the conclusion reached by the Presidential Member, in recovering the compensation she claims, the prerequisite will be satisfied. It follows that the amount in dispute in the appeal exceeds $20,000. Ms Bishop's objection to the competency of the appeal should be rejected.

Disposition of the Appeal 84The essential complaint by Ms Bishop before the Presidential Member, which was reiterated in the appeal to this Court, is that the Arbitrator failed to make a finding as to a critical aspect of Ms Bishop's case. On the basis of Ms Bishop's claim, as outlined above, that required the Arbitrator first to come to a conclusion as to whether the 2011 Injury resulted from Ms Bishop's left leg giving way, as she claimed. If not, it was incumbent upon the Arbitrator to make an express finding to that effect and, possibly, postulate some explanation for the fall, if it was not caused by her left leg giving way. No other explanation was suggested. The Arbitrator made no express finding one way or the other as to whether the 2011 Injury resulted from Ms Bishop's left leg giving way as she claimed. 85If a finding had been made that the 2011 Injury resulted from Ms Bishop's left leg giving way, the next question for the Arbitrator should have been whether there was a causal connection between the 2004 Injury and the leg giving way in 2011. The Arbitrator concluded that such a causal connection had not been established. However, he did not deal with the considerable evidence that had been put forward by Ms Bishop in support of her claim of such a causal connection. 86It is clear from the claim by Ms Bishop outlined above that there was a specific dispute between Ms Bishop and the State as to whether the 2011 Injury, to her left leg and ankle, had any causal connection with the 2004 Injury, to her back. It was therefore incumbent upon the Arbitrator to examine the evidence proffered by Ms Bishop and to make a clear finding on the basis of that evidence, first as to whether the 2011 Injury resulted from Ms Bishop's left leg giving way and, if so, whether the giving way of her leg had any causal connection with the 2004 Injury, to her lumbar spine. 87In the present context, the reasons for the determination of the Arbitrator were not necessarily required to be lengthy or elaborate. All they needed to do was to demonstrate that all of the evidence had been considered and why the relevant findings of fact and conclusions were made (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 442-444). However, it is simply not clear from the Arbitrator's reasons whether he made a finding as to the first matter referred to above. A fortiori, it is unclear what his reasons were for making such a finding, if he did in fact do so. 88Secondly, in relation to the question of causal connection between the two incidents, the Arbitrator failed to address the evidence summarised above. It may be that there were reasons why the Arbitrator might not have accepted the medical opinions proffered by Ms Bishop. However, he does not say that he did not accept them or explain why he rejected them, if he did so. Rather, the Arbitrator attached considerable significance to what was characterised as a lack of recorded complaint to Dr Mechreky of weakness in the left leg, prior to the consultation on the day after the fall on 25 June 2011. On the other hand, the Arbitrator appears to have given little weight to the history given to Dr Mechreky by Ms Bishop on that occasion. Dr Mechreky recorded on 26 June 2011 that Ms Bishop told him that when she was walking, due to her back pain, her leg was not stable and when she was walking out of the house she felt "something funny" in her left leg and her left leg and knee gave way and she twisted her ankle, exacerbating her lower back pain. 89If the Arbitrator was rejecting Ms Bishop's evidence that her left leg gave way on 25 June 2011, it was incumbent upon him to say that the history given to Dr Mechreky on the following day must have been a fabrication. The Arbitrator did not address that question. On the other hand, if the Arbitrator accepted Ms Bishop's assertion that her leg gave way on 25 June 2011, it was incumbent upon him to deal with the medical opinion evidence and the history given by Ms Bishop of numbness in her leg some years before the incident of June 2011. The Arbitrator did not do so. 90It is against that background that the Presidential Member concluded that the Arbitrator had made an error of law in failing to give adequate reasons for his conclusion that there was no causal connection between the 2004 Injury and the incident on 25 June 2011. It was therefore open to the Presidential Member to examine the material that was before the Arbitrator in order to determine whether or not there was an error of fact. The Presidential Member embarked on that exercise and concluded that the Arbitrator had made an error of fact, in so far as he had concluded that there was no relevant causal connection between the 2004 Injury and the 2011 Injury. 91The remaining ground of appeal, that the Presidential Member erred in point of law in concluding that the Arbitrator had accepted the evidence of Ms Bishop, when the reverse was evident from the Arbitrator's decision, may be disposed of briefly. This ground was not developed in any detail in the appellant's written submissions, but it was addressed in oral submissions. The contention is that, contrary to the interpretation of the Presidential Member, the Arbitrator had in fact not accepted the evidence of Ms Bishop that her left leg had collapsed on occasions prior to 25 June 2011. That contention turns on an interpretation of the word "telling" in [36] of the Arbitrator's decision: "[t]his ... lack of recording of any complaint by Dr Mechreky who has been the applicant's general practitioner during that period is telling". However, in the very next sentence, the Arbitrator did accept that there had been some instances of Ms Bishop's leg collapsing ("an occasional happenstance"), even though the Arbitrator was not persuaded that there had been a "pattern" of such collapses. There was no error on the part of the Presidential Member in this regard.

Conclusion 92There was no error of law on the part of the Presidential Member in the approach that he adopted in dealing with the reasons of the Arbitrator. The Presidential Member limited his approach to identifying and correcting errors of law and fact in the decision of the Arbitrator, and did not conduct a review or new hearing, in keeping with s 352(5) of the Management Act. Further, there was no error of law on the part of the Presidential Member in his examination of the evidence and other materials before the Arbitrator or in his reaching a different conclusion as to the essential fact in issue, namely, whether there was a causal connection between the 2004 Injury and the 2011 Injury. It follows that the appeal should be dismissed. The State should pay Ms Bishop's costs of the appeal. The further orders proposed by Basten JA regarding the identification of the appellant should also be made. 93GLEESON JA: I agree with Emmett JA.

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: 15 October 2014

Workplace Injury Management and Workers Management Act 1998(NSW)

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