Hendrix v Accuro Homecare Pty Ltd (NSWPICPD 2023)

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Key Takeaways

• When considering the probative value of an expert report, the question is not whether it is admissible, but whether it provides material upon which the Personal Injury Commission (PIC) is entitled to act.
• The PIC, as an expert tribunal, is entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence.
• It is the duty of a Member to give reasons for a decision where there is a conflict of expert evidence.

Brief Facts

The worker was employed by Accuro Homecare Pty Ltd as a field officer, in which she provided homecare to the disabled.

On 28 April 2010, while attending a client’s house, the worker fell on a flight of stairs. As a result, she suffered significant lower back pain with radiation to the left leg and foot.

The worker underwent two spinal surgeries. The worker claimed that she developed problems with urinary incontinence following the second surgery.

On 15 March 2021, the insurer issued a dispute notice declining liability for the consequential urological condition. The insurer’s decision was based on the opinion of Dr Wines who considered that the “symptoms were the legacy of [the worker’s] previous pregnancies and are unlikely to be of any significant [sic] in relation to [her] workplace injury”.

On 6 April 2022, the matter was heard before Member McDonald. The Member found that the worker did not suffer the claimed consequential condition.

In reaching this decision, the Member was critical of the treating medical evidence as the doctors only ‘expressed tentative views’ making it difficult for her to determine causation. She noted that the medico-legal reports were also unhelpful as they lacked explanation for the opinions expressed. Accordingly, she was not persuaded that there was a causal connection between the accepted lumbar spine injury and urological condition.

The worker sought to appeal the Member’s decisions on the grounds that:

• The Member failed to find that the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010.
• The Member failed to give adequate reasons for her failure to find the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010.
• The Member failed to include the worker’s urological condition in her referral to a Medical Assessor for assessment for her whole person impairment.

Judgment

The worker’s case on appeal aimed to establish that her urinary incontinence was a complication of her spinal surgery, which was required to address the spinal cord damage suffered as a result of the accepted injury. The appeal related to the Member’s consideration and discussion of the available medical evidence.

The worker submitted that the Member erred in fact, giving too little weight to the evidence in the worker’s case and ‘undue weight to an unwarranted shortfall in that evidence’.

The appeal was referred to Deputy President Michael Snell who confirmed that ‘it was not necessary that the reports of any single medical witness in the worker’s case be capable of fully proving her case on causation.’ The Deputy President quoted McDougall J in Nguyen v Cosmopolitan Homes (NSWCA 2008) and confirmed that the ‘inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.’

The worker also argued that the PIC, as a specialised jurisdiction, should be familiar with the role of the spinal cord and cauda equine in the nervous system.
This submission was accepted by Deputy President Snell, who referred to ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales which, in referring to Bryer v Metropolitan Water Sewerage & Drainage Board, stated:

…the Workers’ Compensation Commission was entitled to use general knowledge acquired in ‘investigating… thousands of cases in which evidence is given as to conditions of employment and rates of pay’, ‘not only for the purpose of supplying gaps in the evidence given before it as to matters which it is required by statute to determine… but also for the purpose of weighing and testing any evidence that may actually be tendered’.

The Deputy President accepted that the PIC, as an expert tribunal, is entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences when considering the evidence as a whole.

In commenting on the requirements of expert evidence, the Deputy President referred to Australian Securities and Investments Commission v Rich, in which Spigelman CJ said that ‘the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion’. The Deputy President was satisfied that the medical reports of the qualified experts complied with the principles governing expert evidence, finding the conclusion drawn by the Member to involve an error.

Implications

This decision reinforces that the PIC is a specialist tribunal, which has developed an expertise through reviewing and determining disputes specific to workers compensation cases. The PIC is entitled to rely on this expertise to form an understanding of the evidence and to draw appropriate inferences from all of the evidence before it.