Australian Unity Home Care Service Pty Ltd v Kerr - [2024] NSWPICPD 56

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Australian Unity Home Care Service Pty Ltd v Kerr [2024] NSWPICPD 56
APPELLANT:	Australian Unity Home Care Service Pty Ltd
RESPONDENT:	William McRoberts Kerr
RESPONDENT INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3700/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	5 September 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 16 October 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 4(a) and (b) of the Workers Compensation Act 1987 (1987 Act) considered; Section 16 of the 1987 Act considered and applied
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr L Robison, counsel
BBW Lawyers
Respondent:
Mr A J Parker, counsel
RMB Lawyers
Respondent insurer:
Mr P Perry, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Kerr v Australian Unity Home Care Service Pty Ltd [2023] NSWPIC 541
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	16 October 2023

INTRODUCTION AND BACKGROUND

Mr William Kerr (the respondent) was employed by Australian Unity Home Care Service Pty Ltd (the appellant) as a care worker commencing in approximately 2008 or 2009. As a care worker, the respondent was responsible for assisting patients of the appellant in a number of ways involving repetitive manual tasks including:
“10.1 Ambulant patient care
10.2 Transferring/assisting patients with moving
10.3 Assisting patients with feeding
10.4 Assisting patients with self-care duties including toileting, showering, dressing, etc
10.5 Preparing medication
10.6 Administrative/office duties
10.7 Home care, including vacuuming, mopping, sweeping and general household cleaning duties”[1]
[1] Application to Resolve a Dispute (ARD), pp 1–2.
The respondent was required to sometimes assist and manually move large patients, assisted by colleagues.
During his employment the respondent suffered injuries to his right and left shoulders as well as to his neck. In these proceedings the respondent sought payment for medical treatment (surgery) to his neck and left shoulder.
The appellant was insured for workers compensation purposes by Employers Mutual NSW Ltd (EML) up to 30 June 2020. From 1 July 2020, the appellant was self-insured. The pre-1 July 2020 insurer, EML, is effectively the respondent to this appeal (respondent insurer).
Whilst both the appellant and respondent insurer initially declined the respondent’s claim in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act),[2] they ultimately accepted that the surgery was reasonably necessary. In short, the respondent’s injuries were accepted. The dispute before the Member was essentially between the pre-1 July 2020 insurer of the appellant, and the appellant itself as a self-insurer from 1 July 2020 onwards, as to who was liable to bear the costs of the respondent’s medical treatment. This involved the Member deciding two discrete questions, the first about the true nature of the respondent’s injury (whether injury simpliciter or by way of disease) and secondly the correct deemed date of injury. This dispute involved an examination of the evidence, both lay and medical, and of s 4(a), s 4(b)(ii) and s 16 of the Workers Compensation Act 1987 (1987 Act).
[2] ARD, pp 10, 36.
In a decision dated 16 October 2023, the Member found that the respondent had suffered an injury in the nature of an aggravation of an underlying degenerative disease (s 4(b)(ii) of the 1987 Act),[3] deeming the date of the said injury as found to be 1 December 2020.[4] The result thus being that the appellant (as self-insurer) was fixed with the liability for the respondent’s surgery.
[3] Kerr v Australian Unity Home Care Service Pty Ltd [2023] NSWPIC 541, (reasons), [30].
[4] Reasons, [32]–[33].
It is from this decision that the appellant pursues the appeal.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The respondent, in a statement dated 14 December 2022[5] and supplementary statement dated 2 May 2023,[6] gave evidence that his workplace duties involved heavy and repetitive manual lifting of patients who were unable to move without assistance.[7] This included assisting an overweight resident since about 2014 who weighed approximately 120kg.[8] The respondent would have to shower this particular resident (with the assistance of a co-worker) by rolling him onto a sling lifter to get him out of bed and into a commode chair.[9] Occasionally, the assigned co-worker would be inexperienced resulting in the respondent having to take a larger amount of the resident’s weight, placing pressure on the respondent’s upper arms and shoulders.[10] The respondent states that the consistent work with this particular resident and the requirement to lift, roll and move him caused significant pain and restriction in his right shoulder with pins and needles radiating down into his arm.[11]
[5] ARD, pp 4–8.
[6] ARD, p 9.
[7] ARD, p 9, [5].
[8] ARD, p 5, [12].
[9] ARD, p 5, [13].
[10] ARD, p 5, [14].
[11] ARD, p 5, [15]–[16].
The respondent consulted his GP, Dr Liang, about the development of pain in his right shoulder on 30 November 2018. Despite the pain, he was able to maintain his work and care duties.[12] Between January 2019 to January 2020 the respondent continued to work with the ongoing pain in his right shoulder.[13]
[12] ARD, p 5, [17], [19].
[13] ARD, p 5, [22].
On 11 January 2020 the respondent consulted his GP, Dr Vakil, due to an increase in right shoulder pain after he was showering a patient.[14] The respondent was certified fit to work his pre-injury hours, however, was placed on restricted duties.[15] He continued to experience symptoms in his right arm, so when carrying out tasks he favoured his left arm to bear the brunt of the duties.[16]
[14] ARD, p 5, [23].
[15] Appellant’s reply to Application to Resolve a Dispute (appellant’s reply), pp 36–38.
[16] ARD, p 6, [28].
On review of the Certificates of Capacity[17] the respondent was able to work pre-injury hours, with restricted duties, between the periods of 11 January 2020 to 12 February 2020 and 17 February 2020 to 11 December 2020. On 12 December 2020 the respondent was certified as having no capacity for any employment.
[17] Appellant’s reply, pp 36–86.
The Certificate of Capacity dated 8 February 2020 records the respondent as having capacity to work pre-injury hours with restrictions between 9 February 2020 to 12 February 2020 however no work capacity between 12 February 2020 to 16 February 2020.[18]
[18] Appellant’s reply, pp 39–41.
On 18 May 2020 the respondent was attempting to move an older patient with a hoist which was too short for the patient's bed. The hoist was not adjustable, so the respondent had to manually lift and move the patient himself. He was relying on his left arm to avoid further injury to his right shoulder. While carrying out this task he experienced the onset of pain in his neck and left shoulder.[19]
[19] ARD, p 6, [30]–[31].
The symptoms in the respondent’s left shoulder continued to worsen between late 2020 until February 2021.[20] The respondent states that if he had not suffered the injuries whilst working for the appellant, he would have continued to work into his late 70s as he thoroughly enjoyed his job.[21]
[20] ARD, p 7, [39].
[21] ARD, p 7, [53].
Dr Deshpande, orthopaedic surgeon, in his medico-legal report dated 23 August 2022[22] addressed to the respondent insurer, recorded a history that the respondent was employed as a nursing support and personal care worker by the appellant for a period of approximately 14 years. Dr Deshpande recorded that the respondent experienced right shoulder pain on 30 December 2019 while lifting a heavy and significantly disabled patient. The respondent had experienced right shoulder discomfort prior to the incident on 30 December 2019.[23] Dr Deshpande also records the subsequent development of left shoulder pain following another incident lifting a patient.[24]
[22] Respondent insurer’s reply to Application to Resolve a Dispute, (respondent insurer’s reply), p 17.
[23] Respondent insurer’s reply, p 18.
[24] Respondent insurer’s reply, p 18.
Dr Deshpande diagnosed the respondent with mild tendinosis of supraspinatus and subscapularis with age related constitutional osteoarthritis of the left acromioclavicular joint. He was also of the opinion that there was cervical spine stenosis at multiple levels indicating pre-existing degeneration.[25] Dr Deshpande did not believe there was a diagnosable condition attributable to the work injury and said that the left shoulder injury should have by then resolved.[26] He was of the opinion that there was evidence of osteoarthritis of the AC joint.[27]
[25] Respondent insurer’s reply, p 20.
[26] Respondent insurer’s reply, p 21.
[27] Respondent insurer’s reply, p 22.
In a supplementary report dated 28 August 2023,[28] addressed to the respondent insurer’s solicitor, Dr Deshpande was of the opinion that the injury to the respondent’s neck and left shoulder was due to the nature and conditions of employment in the form of an aggravation of pre-existing neck and left shoulder degeneration.[29] He believed the work injury caused aggravation of previous disc disease in the cervical spine and left AC joint arthritis[30] and the left shoulder complaints are age-related osteoarthritis of the AC joint.[31]
[28] Application to Admit Late documents dated 30 August 2023 (AALD), pp 2–7.
[29] AALD, p 5.
[30] AALD, p 5.
[31] AALD, p 6.
The respondent engaged Dr Michael J Davies, neurosurgeon, to provide a medico-legal report. Dr Davies, in his report dated 9 April 2021,[32] recorded a similar history to Dr Deshpande that the respondent began working for the appellant approximately 14 years ago and was required to work with a very overweight patient. Attending to the patient required the patient to be rolled into a sling lifter to lift him out of bed and into a commode chair. The process was difficult and heavy.[33] Within a few weeks of caring for this patient, the respondent noticed the onset of tingling and a heavy feeling in his right upper limb. The pain continued to increase over time.[34]
[32] ARD, pp 91–97.
[33] ARD, p 92.
[34] ARD, p 92.
Dr Davies recorded that the respondent developed pain in his right shoulder in November 2018 when he consulted his GP however continued to undertake his normal duties during that time. Dr Davies recorded that the respondent again consulted his GP on 11 January 2020 with a 2-week history of right shoulder pain after showering a resident. He continued to undertake his usual hours however was advised to avoid doing any work using patient hoists.[35]
[35] ARD, p 92.
Dr Davies records that in May 2020 the respondent had to undertake duties outside his restrictions when he was assisting an elderly lady with a hoist. The hoist did not extend as high as was required so he had to manually lift and push the patient up onto the bed which increased his right shoulder pain. The respondent also suffered pain in the left shoulder.[36] Dr Davies recorded that the respondent has been off work from December 2020.[37]
[36] ARD, p 92.
[37] ARD, p 93.
The respondent complained to Dr Davies of constant neck pain for approximately four months, pain in the left shoulder, a heavy feeling in the right upper limb with intermittent tingling and pain and cramping in the right hand.[38]
[38] ARD, p 93.
Dr Davies recorded an incident at work in late July 2016 where the respondent was pushing a wheelie bin up a hill when he developed pain in his left shoulder and posterior thoracic region. The pain settled over a few weeks.[39]
[39] ARD, p 93.
Dr Davies believed the respondent suffered soft tissue injuries to his bilateral shoulders as a consequence of the nature and conditions of his employment.[40] Dr Davies initially gave the opinion that on the balance of probability, the nature and conditions of the respondent’s employment around 18 May 2020 further aggravated pre-existing degenerative changes in the cervical spine and led to enlargement of the disc protrusion at C4/5,[41] however, this was amended by way of a supplementary report on 13 September 2021 that “[t]he incident that occurred on 18 May 2020 caused an aggravation and deterioration of pre-existing degenerative changes in the cervical spine.”[42] Dr Davies was unable to offer an opinion as to whether the incident in May 2020 aggravated pre-existing problems to the left shoulder or whether it caused a frank injury to the left shoulder.[43]
[40] ARD, p 95.
[41] ARD, p 95.
[42] ARD, p 98.
[43] ARD, p 98.
The respondent’s treating GP, Dr Liang, provided a report dated 7 October 2022[44] recording that the respondent had been suffering a neck and bilateral shoulder injury since 28 December 2019. The doctor recorded complaints of the right shoulder pain deteriorating since 28 December 2019 due to “rolling, lifting and transfer clients at work”[45] and the respondent’s work duties such as vacuuming, mopping, sweeping and cleaning for his clients. Dr Liang also recorded the respondent’s complaints of neck pain and left shoulder pain since 18 May 2020.[46] Dr Liang believed the respondent‘s employment with the appellant was the main contributing factor to causing aggravation and acceleration to his degenerative condition.[47] Dr Liang had provided an earlier opinion on 28 February 2020, via facsimile to the respondent insurer, consistent with his later opinion that the right shoulder pain was consistent with repetitive rolling and lifting clients at work.[48]
[44] ARD, p 88.
[45] ARD, p 88.
[46] ARD, p 88.
[47] ARD, p 89.
[48] ARD, p 68.
The respondent's treating specialist, A/Prof Jaeger, recorded the respondent’s complaints of right upper limb pain radiating from the neck, over the shoulder and into the upper arm following a work injury on 30 December 2019.[49] A/Prof Jaeger noted that the respondent worked in disability care and was required to lift and move heavy clients. The pain initially improved however deteriorated again in May 2020 because of work activities. Since then, there had been no improvement, there was occasional paraesthesia and right arm weakness. A/Prof Jaeger noted a CT scan of the cervical spine in May 2020 which revealed multi-level degenerative changes, but noted the culprit was likely a right C4/5 disc herniation with compression of the C5 nerve root.[50]
[49] ARD, p 79.
[50] ARD, p 79.

THE MEMBER’S REASONS

As the parties ultimately accepted the respondent’s injuries and that surgery was reasonably necessary, the only disputes before the Member were determination of the nature of the injuries suffered (injury simpliciter or disease) and deeming the correct date of injury.
It was the respondent’s case that the overwhelming evidence in the matter would lead the Member to conclude that the injuries to the left shoulder and neck were diseases of gradual onset caused by the nature and conditions of the respondent’s employment.[51] Counsel for the respondent submitted that there was no challenge relating to the manual tasks required as part of the employment which included, inter alia, dressing patients, moving patients, home care including vacuuming, mopping, sweeping and assisting patients using walkers where he would have to take most of their body weight.[52]
[51] Transcript (T) of proceedings, 5 September 2023, 5.25–30.
[52] T 6.16–25.
Counsel referred to the Certificate of Capacity dated 3 February 2020[53] where the doctor records:
“Patient c/o right shoulder pain gradually getting worse, esp on 28/12/2019, work related injury due to rolling/lifting clients at work, also do house work such as transfer clients, vaccuuming (sic), mopping/sweeping/cleaning”.[54]
[53] T 8.5–10.
[54] Appellant’s reply, p 36.
Counsel submitted that the doctor’s record is an example of a classic disease injury and is far from being a frank injury.[55] Counsel noted that while this may ordinarily set up a consequential injury type claim, it did not in this case as the injury to the neck and right shoulder, in consideration of the nature of the duties at work, are, and have been pleaded as, injuries under s 4(b) of the 1987 Act, being a disease injury.[56]
[55] T 8.20–30.
[56] T 9.20–30.
Counsel for the respondent’s overall submission was that the injury was due to a disease process and the symptoms came on gradually and worsened over time because of his employment, and there were specific aggravations during the course of his employment. Counsel referred to the respondent’s statement and various medical opinions of Dr Liang,[57] A/Prof Jaeger,[58] Dr Davies[59] and Dr Deshpande[60] in support of his submission. Counsel for the respondent did not make submissions in relation to the deemed date of injury.
[57] T 11.5–12.30.
[58] T 14.20–15.30.
[59] T 16.5–30.
[60] T 18.10–20.20.
The respondent insurer agreed with the submissions made by the respondent that the overwhelming nature of the evidence supports the argument that work activities aggravated, exacerbated and accelerated a disease, being a degenerative condition in both shoulders and the degenerative condition in the cervical spine[61] and that once an injury consists of an aggravation, acceleration, exacerbation or deterioration, it invokes s 16 of the 1987 Act where the deemed date of injury is to have happened at the time of the worker’s incapacity.[62]
[61] T 24.28–25.8.
[62] T 25.10–20.
The respondent insurer submitted that the deemed date of injury was 1 December 2020[63] as this was the last date of work for the respondent and was also the date of incapacity.[64]
[63] It is apparent that this date is mistaken and should have been submitted as 12 December 2020, as per the Certificate of Capacity dated 12 December 2020, respondent insurer’s reply p 76.
[64] T 25.30–26.5.
The respondent insurer referred to the report of Dr Davies, where the doctor noted investigations showing evidence of underlying degenerative change in the lower cervical spine that have been aggravated by the nature and conditions of employment where the employment was the main contributing factor to the aggravation and pre-existing condition.[65] The respondent insurer also referred to Dr Deshpande’s reports where the doctor believed that the neck and left shoulder injury was due to the nature and conditions of employment in the form of aggravation or pre-existing neck and left shoulder degeneration.[66]
[65] T 28.21–26.
[66] T 29.10.
The respondent insurer concluded that the evidence would lead the Member to conclude that the respondent sustained an injury of the type described in s 4(b)(ii) of the 1987 Act and that the respondent became incapacitated on 1 December 2020 when his GP issued a Certificate of Capacity certifying the respondent unfit to work.[67]
[67] T 31.10–20.
In response, the appellant submitted that there are three ways to view the case, all of which result in a date of injury prior to when the appellant became self-insured:[68]
(a)    The injury arose from a series of frank injuries which caused the respondent’s condition rather than being due to the nature and conditions of his employment.[69] The facts of the case supported this submission, particularly given there is more than one body part in contention.[70]
(b)    In the event there was a finding of a disease process either brought about or aggravated by the nature and conditions of employment, the correct date of injury is 30 December 2019 (incorrectly transcribed as 13 December), being the date of acceptance of liability by icare of a right shoulder injury to which the left shoulder was a consequential condition.[71]
(c)    Or the injury was a disease process with a date of injury to be determined in terms consistent with ss 15 or 16 of the 1987 Act.[72] Counsel submitted that as it was a claim for medical benefits under s 60 of the 1987 Act, the correct date of injury is indistinguishable from a weekly benefits claim,[73] and the date of incapacity would be the relevant date.[74] On this basis, the correct date of injury would be 12 February 2020 when the respondent was certified as having no capacity for employment between 12 February 2020 and 16 February 2020.[75]
[68] T 32.5–30.
[69] T 32.5-10.
[70] T 34.20–30.
[71] T 32.15–20.
[72] T 32.20–30.
[73] T 34.25–30.
[74] T 35.10–15.
[75] T 41.15–20.

The appellant also submitted that the respondent insurer was estopped from arguing it was not liable for the left shoulder surgery and cervical spine as it had accepted liability with respect to the right shoulder.[76]
[76] T 38.25–39.10.
The Member was ultimately satisfied that the respondent’s injuries to the cervical spine and left shoulder are diseases of gradual process suffered as a result of the nature and conditions of his employment.[77]
[77] Reasons, [17].
In coming to his decision, the Member considered the evidence of A/Prof Jaeger who recorded a history of the respondent developing right upper limb pain radiating from the neck, over the shoulder and into the upper arm on 30 December 2019 and that as part of the respondent’s employment he was required to lift and move heavy clients. A/Prof Jaeger noted the symptoms initially improved however deteriorated again in May 2020 due to work activities.[78]
[78] Reasons, [18].
The Member also referred to Dr Davies’ report dated 9 April 2021 who believed the soft tissue injuries to the bilateral shoulders were a consequence of the nature and conditions of employment and that the respondent aggravated pre-existing degenerative change in his cervical spine. Dr Davies considered that on the balance of probabilities, the nature and conditions of the respondent’s employment around 18 May 2020 further aggravated pre-existing degenerative changes in the cervical spine and led to enlargement of the disc protrusion.[79] The Member also considered Dr Davies’ response to the question as to whether the respondent suffered an aggravation of underlying conditions in his cervical spine, which was that the condition represents a nature and conditions of employment type injury, together with a frank incident on 18 May 2020.
[79] Reasons, [19].
The Member noted Dr Deshpande’s opinion that despite the right shoulder incident on 30 December 2019, the respondent had been suffering shoulder pain before that date, consistent with a work-related aggravation of an underlying condition.[80] Dr Deshpande was also of the opinion that the cervical spine symptoms were due to a temporary aggravation of pre-existing disc degeneration.[81]
[80] Reasons, [29].
[81] Reasons, [29].
The Member ultimately found at reasons [30] that the medical evidence supported a finding that the respondent suffered injury to his left shoulder and cervical spine by way of aggravation to underlying degenerative process.
Once the Member determined that the injury was in the nature of a disease, the Member turned to the question of the deemed date of injury.
The Member considered s 16 of the 1987 Act,[82] set out in the “Legislation” section below.
[82] Reasons, [31].
The Member rejected the appellant’s submissions that if the Commission found a deemed date of injury was applicable, the deemed date of injury would fall on either 30 December 2019 or 12 February 2020 when the respondent’s GP issued medical certificates. The Member found that as the respondent continued employment during this time and was working his pre-injury hours up until 1 December 2020, the deemed date of injury could not fall on those dates.[83]
[83] Reasons, [32].
The Member found that the correct deemed date of injury to the respondent’s left shoulder and cervical spine falls on 1 December 2020, being the date of the respondent’s last day of work and the date of incapacity. The deemed date of 1 December 2020 is a date on which the appellant was on risk.[84]
[84] Reasons, [33].
The Certificate of Determination issued on 16 October 2023 records:
“The Commission determines:
1.     Leave is granted to amend the injury description at (c) under the heading ‘Injury Details’ in the Application to Resolve a Dispute by deleting the current words and substituting ‘18 May 2020 - when required to use a hoist - injuring his neck and right shoulder’.
2.     Leave is granted to amend the Application Resolve a Dispute to claim a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act in relation to the [respondent’s] cervical spine, and to claim a specific order that the surgery carried out by Dr Jaeger to the [respondent’s] cervical [spine] on 16 September 2022 was reasonably necessary as a result of a workplace injury.
3.     Leave is granted to claim a general order in relation to medical and treatment expenses to the [respondent’s] left shoulder and to claim an order that the proposed surgery to the [respondent’s] left shoulder recommended by Dr Jansen is reasonably necessary as a result of a workplace injury.
4.     The [respondent] suffered injuries to his cervical spine and left upper extremity (shoulder) in the course of his employment with the [appellant], with a deemed date of injury on 1 December 2020.
5.     At the deemed date of injury, the [appellant] was relevantly self-insured.
6.     The cervical spine surgery which the [respondent] underwent on 16 September 2022 at the hands of Dr Jaeger and the proposed left shoulder surgery are reasonably necessary as a result of the [respondent’s] injury.
7.     The [appellant] is to pay the costs of and incidental to the surgery referred to in (3) above.
8.     The [appellant] is to otherwise pay the [respondent’s] medical and treatment expenses in relation to his cervical spine and left shoulder injuries, including the costs of and incidental to the proposed left shoulder surgery recommended by Dr Jansen.”

GROUNDS OF APPEAL

The appellant relies upon the following three grounds of appeal:
Ground One – Error of law in applying disease provisions to the worker’s injury
Ground Two – Taking into account irrelevant considerations, namely circumstances which determine the date for a disease injury
Ground Three – In the alternative, if the disease provisions did apply, error of fact and law by not having regard to the first period of incapacity as attracting a deemed date of injury.

LEGISLATION

Section 4 of the 1987 Act defines ‘injury’ as:
“4      Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 16 of the 1987 Act provides:
“16    Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7(4A), (5), 16(1A))
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
…”

DISCUSSION

The essential nature of this appeal is about the application of the s 4 definition of “injury” to the facts of this matter. Namely, did the respondent suffer a series of s 4(a) injuries or was it, as the Member found, a s 4(b)(ii) aggravation of a disease? Much ink has been spilt by various first instance and appellate courts addressing this very question and I set out some of these authorities below. I will begin with how the matter was pleaded by the respondent and the principles that are to be discerned from these decisions before applying them to this appeal.

How was the application pleaded?

In the ARD, the respondent pleaded the matter in the following terms. Firstly, in answer to the question “Type of Injury”, the answer was “Disease”. The question “Date of Injury” is answered “30/12/2019”.
Secondly, in answer to the question “Injury Description/Cause of Injury and Death” the following appears:
“The [respondent] sustained injuries to the neck, left shoulder and right shoulder, by way of disease process, as a result of heavy repetitive, and arduous duties.
The date of injury is 30 December 2019, the date of the original claim, or 1 December 2020 (the date of first incapacity for weekly compensation), or 13 March 2023 (the date the claim was made on the self-insurer).
In addition to the above, or in the alternative, the [respondent] sustained frank injuries on:
a.      28 July 2016 - involving moving a wheelie bin - injuring his neck.
b.      On or about 30 December 2019 - injuring his neck and right shoulder as a result of lifting patients.
c.      18 May 2020 - when required to use a hoist - injuring his neck and left shoulder.
The medical evidence also indicates that the [respondent] sustained a consequential injury to the left shoulder, as a result of favouring and/or protecting it, including as a result of the incident on 18 May 2020.
The [respondent] seeks payment of the reasonably necessary costs of the neck surgery, together with payment of the proposed future left shoulder surgery.”
At the hearing, the prayer in paragraph (c) was amended (by consent) by the Member to read “18 May 2020 - when required to use a hoist - injuring his neck and right shoulder.”
Whilst other amendments to the ARD were made and can be found in the Certificate of Determination dated 16 October 2023 at Orders 2 and 3, they are not relevant to recount for the purposes of this appeal.
To this I would add that the Commission is not a tribunal of strict pleadings.[85] Pleadings in the Commission serve the purpose of defining the issues which are in dispute and which the Member must decide. I would also add that the Commission in deciding this question is not bound by the manner in which the application was pleaded.
[85] Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2, [40]–[41].

Injury or disease?

Whether an injury is a s 4(a) injury or s 4(b) disease has been the subject of much discussion in a number of decided cases. I set out below the decisions which have examined this question.
In Lyons v Master Builders Association of NSW Pty Ltd,[86] Judge Neilson was dealing with the case of a bricklayer who injured his left knee at work on a particular date. The injured worker visited his doctor, had a week off work and received physiotherapy. The knee improved and the worker returned to his duties with the same employer, later suffering further injury to the left knee whilst using a jackhammer. On this occasion he was off work for 8–12 weeks and had physiotherapy for 6 months. When he returned to work, he found that he performed his normal duties more slowly due to knee discomfort. The worker stopped work due to a personal tragedy and when he later resumed working for another employer, his knee symptoms got worse leading to him stopping work. Proceedings were brought against the first employer who said that the second employer was liable as the knee condition was in the nature of a disease. Judge Neilson said the following:
“The first thing to note is that, as Windeyer J said in the High Court of Australia, the Court is concerned with genesis rather than revelation. Here the applicant sustained a frank injury on 12 February 2000 in which he sustained damage to his anterior cruciate ligament from which he may or may not have recovered, damage to the medial collateral ligament but more importantly chondromalacia patellae. A frank injury can set in train chondromalacia patella, which is a progressive degenerative condition. That condition can worsen with the passage of time. That does not mean that what the patient is doing at the relevant time is causing the condition or making it worse, the condition deteriorates of its own momentum.”[87]
And later:
“Here, the injury, meaning the pathology, was received in a frank incident on 12 February 2000 and was not by way of a disease process …”[88]
These findings were based upon the judge’s assessment of the facts and application of the law when he found that the disease provisions did not apply.
[86] (2003) 25 NSWCCR 422 (Lyons).
[87] Lyons, [18].
[88] Lyons, [23].
In Rail Services Australia v Dimovski[89] Hodgson JA said:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some other time than when it in fact happened.”[90]
[89] [2004] NSWCA 267 (Dimovski).
[90] Dimovski, [68].
In May v Military Rehabilitation and Compensation Commission[91] the Full Federal Court said as follows:
“… suddenness is of particular relevance when distinguishing between the natural progression of a disease and an event or incident that is an injury. Also, there is a degree of ordinary meaning or common understanding involved, as was recognised by Latham CJ in Hume Steel: the difference between getting hurt and becoming sick. Medical evidence or opinion will, of course, be relevant; but it may not be determinative. The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick. The circumstances and the facts will influence what weight such considerations are given in the drawing of a factual conclusion in any particular case.”[92]
[91] [2015] FCAFC 93; 322 ALR 330 (May).
[92] May, [118].
Before the Member, issue was taken with the phrase “nature and conditions of employment” being deployed to substantiate a disease claim, citing Toplis v Coles Group Ltd t/as Coles Logistics[93] where the term was described as “misleading and unhelpful”. In Wyong Shire Council v Paterson[94] Giles JA put it thus (Hodgson JA and Brownie AJA agreeing):
“Both those matters were complicated by the distinction between a frank injury and a condition arising from the nature and conditions of work. The distinction is not uncommonly found in the language used in this area of the law, but it is imprecise and it is not a distinction found in the [1987] Act. In general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities.”
[93] [2009] NSWWCCPD 70, [65].
[94] [2005] NSWCA 74, [38] (Paterson).
This passage from Paterson is useful in terms of the dispute about whether the respondent suffered an injury simpliciter from which all else flows (Lyons; Dimovski) or a disease attributable to the nature and conditions of his employment. Whilst they are not terms used in the 1987 or 1998 Acts, they are readily understandable terms of art of long standing usage in this jurisdiction. No party is under any misapprehension about what is being asserted or the nature of the dispute to be decided due to the employment of these terms.
Whilst these are the principles, whether an injury falls within s 4(a) or s 4(b) is dependent upon the facts as found by the Member.

As to Ground One

The appellant commences by setting out its view of s 4(a) and (b) before detailing extracts from relevant authorities.[95] There is no controversy about these matters.
[95] Appellant’s submissions 10 November 2023, [16].
The gravamen of the complaint in this ground can be shortly stated - namely, that the evidence properly construed did not provide evidentiary support for the finding that the respondent suffered from a “disease” and that the findings were not legally or factually open to the Member to make. This is the purport of the appellant’s submissions.[96] In these passages of the appellant’s submissions, attention is directed to the appellant’s view of the evidence which was that the respondent’s problems were precipitated by three frank injury events. The appellant points to certain passages from the respondent’s statements and the medical evidence[97] in support of this submission.
[96] Appellant’s submissions 10 November 2023, [17]–[19].
[97] Appellant’s submissions 10 November 2023, [17]–[18].
In reply, the respondent says that intervention on appeal is limited to the correction of error.[98] The respondent says that the weight to be given to evidence is a matter for the trial judge and that an evaluative judgement made on the evidence is, absent error, not able to be overturned.[99] The respondent says that this ground of appeal “… merely cavils with the conclusion, rather than the way it was reached.”[100] The respondent continues that “[n]o submissions are directed to facts which are said to be ‘incontrovertible’, ‘uncontested’, ‘glaringly improbable’, or ‘contrary to compelling inferences’, based on the evidence.”[101]
[98] Respondent’s submissions 16 November 2023, [12]–[13].
[99] Respondent’s submissions 16 November 2023, [16]–[17].
[100] Respondent’s submissions 16 November 2023, [20].
[101] Respondent’s submissions 16 November 2023, [25].
The respondent insurer points to s 352(5) of the 1998 Act that it is necessary for the appellant to prove error. The respondent insurer says that the appellant appears to assert that the finding made by the Member was prohibited due the reasoning in Dimovski. The respondent insurer says that the circumstances present in Dimovski are not present in this case.[102]
[102] Respondent insurer’s submissions 11 December 2023, [18]–[19].
In reply, the appellant says the error is the Member’s failure to deal with the early evidence going to the question of incapacity. The appellant also says that “the Member should not have considered the disease provisions (at all) before first excluding the possibility of characterisation of the pathological process as emerging from a frank incident per Dimovski.”[103] The appellant says that the requirements “prefer a frank injury where possible per Dimovski.”[104]
[103] Appellant’s submissions in reply 21 December 2023, [3].
[104] Appellant’s submissions in reply 21 December 2023, [6(a)].

Consideration

As the respondents to this appeal rightly point out, intervention on appeal requires the establishment of error; the Member has to be shown to have been wrong.[105]
[105] Section 352(5) of the 1998 Act; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.
Whilst the appellant does not in particular terms describe where the error the Member made appears, it is apparent that the complaint is that the Member’s overall approach to considering the evidence did not provide the support for the findings ultimately made that the respondent suffered a s 4(b) disease injury.

The appellant takes issue with the respondent’s statements and what is described as a “faint allusion”[106] to the nature and conditions of his work. I have closely examined the respondent’s two statements.[107] I do not accept the appellant’s characterisation of the respondent’s evidence. The respondent gives descriptions of his duties, described as involving “repetitive manual tasks”[108] and the lifting and weight bearing of patients.[109] The respondent describes working with a particular patient who was heavy and hence difficult to lift or manoeuvre from 2014-2015 onwards.[110] The respondent himself attributed his injuries directly “… to the strenuous manual labour duties of my employment as a care worker.”[111] In his second statement the respondent says:
“I sustained injury to my right shoulder which developed significantly from 30 November 2018 as a result of my workplace duties which involved heavy and repetitive manual lifting of patients that were unable to mobilise on their own.”[112]
[106] Appellant’s submissions 10 November 2023, [17].
[107] ARD, pp 4–9.
[108] ARD, p 4, [10].
[109] ARD, p 5, [11]–[15], [23].
[110] ARD, p 5, [12]–[15], [19].
[111] ARD, p 7, [47].
[112] ARD, p 9, [5].
In short, the appellant states that there is little (“faint”) support for the disease allegation based on the respondent’s statements. I do not accept this submission. The two statements read as a whole paint a picture of the respondent performing repetitive manual lifting duties, sometimes heavy lifting duties, over a number of years. The respondent, contrary to the submission made by the appellant,[113] attributes his injuries directly to his work.[114] I have referenced (above) particular passages from the respondent’s statements which support the contrary position to that which is put by the appellant on appeal.
[113] Appellant’s submissions 10 November 2023, [17].
[114] ARD, p 7, [47].
The Member at reasons [5] accurately recounts that the respondent “claims his injuries are in the nature of a disease process either brought about or aggravated by the nature and conditions of his employment.” The Member later noted the submission that “the [respondent’s] symptoms came on gradually and worsened over time as a result of his employment, and there were instances of specific aggravations in the course of his employment”.[115] The Member also said this:
“Although there were specific incidents, the [respondent] has recounted repeated heavy duties and symptoms in the affected body parts over time, not only when the specific events took place.”[116]
[115] Reasons, [22].
[116] Reasons, [30].
These are available and accurate observations of the respondent’s evidence. The Member was not in error in terms of his approach to the respondent’s evidence.
The respondent’s evidence though is important when one considers the Member’s approach to the medical opinion and treatment evidence.
The appellant says that the treating material is consistent with a frank injury, citing a number of medical records or reports.[117] The first document referenced is a letter from Dr Euan Bulcraig dated 30 August 2016.[118] This is a letter to a physiotherapist (Hands on Health) about the 28 July 2016 wheelie bin incident. The doctor says “work cover injury to LEFT shoulder/posterior thoracic region.” The respondent says the following about this incident:
“I reported the incident to Dr Bulcraig, General Practitioner, and was referred to undergo physiotherapy at Hands on Health Physiotherapy. I commenced that treatment in early September 2016 and by the end of the month I returned to my pre-injury duties without issue.”[119]
[117] Appellant’s submissions 10 November 2023, [18].
[118] ARD, p 66.
[119] ARD, p 4, [9].
The next record referenced is the letter from Dr Liang to A/Prof Jaeger dated 15 October 2020[120] which states “[the respondent] has history of work related neck pain since 18/5/2020.” The respondent has referred to this incident in his statement,[121] describing feeling pain in his neck and left shoulder as he lifted a patient. The next letter mentioned by the appellant is A/Prof Jaeger’s letter to Dr Liang dated 6 November 2020.[122] A/Prof Jaeger writes:
“[The respondent] … developed right upper limb pain radiating from the neck, over the shoulder and into the upper arm in relation to a work injury on 30/12/19. He works in disability care and was lifting/moving heavy clients. The pain initially improved, but unfortunately deteriorated again in relation to his work activities in May this year.”
[120] ARD, p 77.
[121] ARD, p 6, [30]–[31].
[122] ARD, p 79.
The appellant then points to Dr Jansen’s letter to Dr Liang dated 14 September 2021[123] where the doctor describes the lifting injury at work on 20 May 2020.
[123] ARD, p 84.
Finally with respect to the treatment records, the appellant refers to GP Dr Liang’s report dated 19 November 2021.[124] The appellant says that this report “makes it clear that the right shoulder problems started after events of 11 January 2021 and lefter should [sic] after particular events of 23 May 2020”.[125] This report is in the form of a series of questions being answered by the general practitioner. Question one asks “The history of Mr Kerr[’s] work related injury” which is answered in the following terms:
“Mr Kerr initially presented with right shoulder pain for 2 weeks on 11/1/2021.
He complaint [sic] of right shoulder pain after he was showering a resident at his home.
Mr Kerr presented with left shoulder pain on 23/5/2020 after he lifting/transferring [sic] a client with inadequate equipment at work.”
[124] ARD, p 85.
[125] Appellant’s submissions 10 November 2023, [18].
In paragraph 2 on the same page, the doctor is asked for a “Diagnosed [sic, diagnosis] of Mr Kerr’s injury” and the response lists the following:
“Mr William Kerr presented on 11 January 2020 with work related right shoulder pain. US shows supraspinatus tendinosis and SASD (sub-acromial sub-deltoid) bursitis.
In July 2020
Left shoulder pain: US shows mild subscapularis and supraspinatus tendinosis, mild left sub-acromial sub-deltoid bursal thickening.
MRI shows AC joint synovitis and partial thickness tear of the subscapularis.
Neck:”[126]
[126] ARD, p 85.
There are a number of issues with the appellant’s submissions on the treating medical records. I have closely read the treatment records relied on by the appellant and referred to at paragraph [18] of the appellant’s submissions. Firstly, I would remark that such treatment records do need to be approached with caution.[127] Secondly, it is apparent the doctors were all concerned in considering possible treatment options in light of the respondent’s presentation and complaints of pain. Clearly, records of particular incidents are recorded. I am not being critical of the doctors, but it is apparent that they did not have a complete history of the respondent’s work and symptoms as described by the respondent in his statements.
[127] Mason v Demasi [2009] NSWCA 227, [2], per Basten JA.
The appellant says that these records reveal the occurrence of frank incidents. To a certain extent this is correct, frank incidents and complaints of pain afterwards are recorded. But these records do not go so far as to show that the Member was in error in failing to find that the respondent’s injuries were a result of a s 4(a) frank injury(s). These records cannot be considered absent a knowledge of what the respondent himself has said about the history and nature of his work.
The appellant then goes on to criticise the approach of Dr Davies, the respondent’s provider of a medico-legal opinion,[128] in the following terms:
“Dr Davies refers to ‘a nature and conditions of employment type injury, together with a frank incident on 18 May 2020’, which is a comment directly at odds with the ratio in Dimovski – one cannot consider ‘nature and conditions’ when one has a frank injury and this must be especially so where the same doctor has identified what amounts to a frank injury.”[129]
[128] ARD, p 91.
[129] Appellant’s submissions 10 November 2023, [19].
I do not accept that this submission fairly reflects or does justice to Dr Davies’ opinion. The doctor clearly has the history of heavy work interspersed with incidents.[130] The doctor states that the nature and condition of the respondent’s employment “aggravated pre-existing degenerative change in the cervical spine”[131] and this was aggravated by employment around 18 May 2020. This diagnosis is repeated at ARD, p 96 in answer to question 5.
[130] ARD, p 92, beneath the heading “History”.
[131] ARD, p 95.
As I have stated above, the appellant points to various aspects of the medical evidence which in its submission ought to have led the Member to find that the respondent suffered a frank injury rather than a disease being aggravated. The task confronting the Member was an exercise of an evaluative judgement of the evidence in deciding this question.
In Australian Air Express Pty Ltd v Langford,[132] McColl JA (Ipp and Tobias JJA agreeing) made the following observation in relation to the exercise of an evaluative judgement by a first instance decision maker:
“The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
[132] [2005] NSWCA 96 (Langford), [15].
I do not accept that the appellant has proven error in the Member’s approach in this ground. Rather the complaint appears to be about the factual finding made by the Member that the disease provisions were on the facts engaged. The Member said:
“In my view, the preponderance of the medical evidence in this matter supports a finding the [respondent] suffered injury to his left shoulder and cervical spine by way of aggravation to underlying degenerative processes. Although there were specific incidents, the [respondent] has recounted repeated heavy duties and symptoms in the affected body parts over time, not only when the specific events took place. As Dr Deshpande noted, the complaints of left shoulder pain predated the specific incident on 30 December 2019, while the nature of the pathology in the [respondent’s] cervical spine, namely underlying degenerative changes which became symptomatic over time, is clearly consistent with an injury which falls within s 16(1) of the 1987 Act.”[133]
[133] Reasons, [30].
This finding was available based on an evaluation of the evidence, both lay and medical, as discussed in May at [118] set out above. As I have stated, I do not accept the characterisation of the respondent’s evidence as providing only “faint” support for the disease claim. The evidence from the respondent is far more definite on that question and it was relied upon by the Member. The task the Member undertook was precisely the exercise of “fact and degree” referred to in Langford. The appellant’s complaints about the medical evidence, including Dr Davies’ opinion, have not revealed error on the Member’s part. Once the Member’s approach to factual finding is properly understood, the appellant’s complaint about Dimovski does not arise. I do not accept the appellant’s submission that a finding of frank injury is to be preferred. There is nothing in either s 4 or the authorities which supports this submission. Rather it is a matter of the Member characterising the true nature of the injury after a dispassionate examination of all of the facts.
Ground One has not been established. Ground One is dismissed.

As to Ground Two

Ground Two is co-dependent upon Ground One being established. The appellant submits the following:
“It follows that none of the criteria for allocating a date, on a deemed basis, properly arose for consideration. Once it be established that there is a frank injury (or a series of frank injuries) dates of incapacity and dates of claim are legally irrelevant considerations.”[134]
[134] Appellant’s submissions 10 November 2023, [20].
In light of my dismissal of Ground One and the appellant’s frank injury argument, Ground Two inevitably fails.
Ground Two is dismissed.

As to Ground Three

Ground Three is an argument expressed in the alternative on the basis that the disease provisions do in fact apply to this application.
The appellant says that the first period of total incapacity commenced on 12 February 2020, which is within the respondent insurer’s period of risk. The appellant relies on the ARD which set out dates for three frank incidents and two deemed dates of injury, 30 December 2019 and 1 December 2020, both of which were in the respondent insurer’s period of risk.[135] I would remark that it is not in contest that the appellant, as self-insurer, came on risk as from 1 July 2020, so the submission that December 2020 was within the respondent insurer’s period of risk is incorrect.
[135] Appellant’s submissions 10 November 2023, [21]–[27].
The appellant points to a certificate certifying total incapacity on the part of the respondent from 12 February 2020 until 16 February 2020 found at p 40 of the appellant’s reply. I would note that in this certificate under the “Comments” section, the following appears: “Patient is going to have local steroid injection for pain control on 12/02/2020, therefore to have day off from 12/02/2020 to 16/02/2020.” I would remark that the next certificate in that series, dated 17 February 2020, certified the respondent as able to work 6 hours a day, 6 days a week from 17 February 2020.[136] This period is described by the respondent in his statement as a “graduated return to work”.[137]
[136] Appellant’s reply, p 43.
[137] ARD, p 6, [25], [28].
The respondent has submitted that he is content for the Commission to deal with the date of injury issue in the manner it considers is appropriate, given that either the appellant or respondent insurer will be liable for the surgical costs.
The respondent insurer submits the following:
“But the relevant question for the member was to identify the injury which had brought about the need for the medical treatment for which the claim was made. Critically, the appellant did not contest in submissions to the member, and did not contest in submissions to the presidential unit, that the worker continued in demanding employment, at the same hours as [in] earlier periods of his employment, up to 1 December 2020. The [respondent] became incapacitated on that date, enlivening s 16.
It was that injury, with that deemed date, that brought about the need for the treatment claimed.”[138]
[138] Respondent insurer’s submissions 11 December 2023, [25]–[26].

Consideration

For the purposes of this appeal ground, there is no dispute that the respondent suffered an injury in the course of his employment and that the injury was the aggravation of a disease pursuant to s 4(b) of the 1987 Act. This leads to the determination of the correct deemed date of injury for the purposes of s 16 of the 1987 Act. The relevant date for this dispute is very much in issue between the appellant and the respondent insurer. The appellant became a self-insurer on 1 July 2020 so if the deemed date falls after 1 July 2020, the appellant is fixed with liability for the respondent’s surgery.
The Member dealt with this question at reasons [32]–[33] where he found as follows:
“Mr Robison submitted if the Commission found a deemed date of injury was applicable, it would fall on a date of incapacity when EML was on risk, namely either 30 December 2019 or on 12 February 2020 when the [respondent’s] GP issued medical certificates. However, the difficulty with that submission is that the [respondent] continued in his employment and at the same hours until 1 December 2020, a date on which the self-insurer was on risk. Up until that time, the [respondent] was certified as being fit for work for 6 hours per day, 6 days per week, identical to his pre-injury hours.
Accordingly, I find the correct deemed date of injury to the [respondent’s] left shoulder and cervical spine falls on 1 December 202[0], a date on which the self-insurer was on risk.”
Before the Member and on appeal, the appellant relies upon the medical certificate appearing at p 40 of the appellant’s reply as evidence fixing the deemed date of injury for the purposes of s 16(1)(a)(i) of the 1987 Act. The appellant says that this is the first date of the respondent’s incapacity for s 16 purposes. That certificate relates to a complaint of right shoulder pain. The claim pursued by the respondent was particularised in the ARD as left and right shoulders as well as neck by way of a disease process. The left shoulder was framed as a consequential injury arising from the respondent protecting his right shoulder.[139] The respondent’s statement evidence does not directly deal with this certificate relied on by the appellant, but a fair reading of his statement reveals the guided steroid injection on 12 February 2020 and the respondent then recounts his graduated return to work.[140] What is apparent from the respondent’s statement, and there was no dispute about this, is that after the steroid injection from 17 February 2020, he returned to work 6 hours a day, 6 days a week until December 2020 when he ceased work. The respondent’s statement[141] describes what happened from February 2020 onwards in terms of his work, ongoing pain and treatment.
[139] Respondent’s statement, ARD, p 6, [28].
[140] Respondent’s statement, ARD, p 6, [25], [28].
[141] ARD, p 6.
In this case, it seems that the respondent had a short period of incapacity from 12 February 2020 to 16 February 2020 while he convalesced after his steroid injection. But he returned to work from 17 February 2020, working the same hours and same number of days until December that year. On the respondent’s evidence he continued to experience pain and discomfort in what were continuing aggravations of his condition.
The Member noted that notwithstanding the 12 February 2020 certificate, the respondent continued to work until December 2020.[142] The appellant alleges that the Member erred by not following the evidence of the 12 February certificate which said his capacity was ‘nil’.[143]
[142] See reasons, [32].
[143] Appellant’s submissions 10 November 2023, [25]–[26].
In Collingridge v IAMA Agribusiness Pty Ltd[144] Deputy President Roche said of the deeming provision: “Because the disease provisions do not determine liability on the basis of true causation, they often produce arbitrary results.”[145] In this case, ultimately there are two competing dates upon which incapacity could be said to have commenced, 12 February or December 2020. Which is in fact the correct deemed date requires an assessment of the evidence in its entirety.
[144] [2011] NSWWCCPD 31 (Collingridge).
[145] Collingridge, [83].
In this case, I do not accept the argument advanced by the appellant about the certificate and what the appellant effectively asserts is the conclusive nature of the certificate on this question. To do so would be to ignore the evidence of the continuing work and aggravations which lasted up to December 2020 while the respondent was working his normal hours and days each week. To accept this argument would also accord greater weight to the certificate, which has the obvious limitations which I describe below and which would affect the weight that it could be given. To accept this submission would be to produce a very arbitrary decision based on imperfect evidence, being the certificate (which I deal with below).
I now turn to the certificate upon which the appellant places great reliance to substantiate its submission in this ground.[146] On a superficial reading of the certificate and nothing else, there is a very short period of incapacity after the steroid injection. The certificate does not say why, but one would assume that after the injection a few days passed to allow the doctor to assess the outcome. The outcome of the injection is recorded in the following certificate[147] as having had a “good effect” when the doctor reviewed the respondent on 17 February 2020. This same certificate says the respondent can work 6 days a week, 6 hours a day. The section of the pro-forma certificate asking for comment on “no current work capacity” is blank.
[146] Certificate of Capacity in appellant’s reply, p 40.
[147] Appellant’s reply, p 43.

What is known is that once the respondent ceased work in December 2020, he has not worked since.
The certificate upon which the appellant places great weight is not in the form of a reasoned opinion nor are the entries explained or the reasoning process exposed. I am not being critical of the doctor, he was working within the obvious limitations of what is a pro-forma document containing a series of questions and answers. But this document has its limitations and the weight to be attached to it in deciding the deemed date of injury was a matter for the Member. The fact of the certificate and its contents does not automatically prove the appellant’s point, rather the evidence has to be weighed in reaching the conclusion about the correct deemed date of injury.
The appellant effectively criticises the Member for not taking the certificate as conclusive proof of the deemed date.
The Member was right to look at the entirety of the evidence in reaching his conclusion as to the deemed date of injury and give the evidence such weight as the Member saw fit. This is the process the Member undertook at reasons [32] and the appellant has not shown why this was wrong. Clearly, the Member gave greater weight to the respondent’s final cessation of work with the appellant in December 2020 than the certificate.
No error has been established, Ground Three is dismissed.

Costs

The respondent insurer has sought that the costs of this appeal be paid by the appellant. There is no power to award costs and as a consequence, I reject this application.

DECISION

The Certificate of Determination dated 16 October 2023 is confirmed.
Given that the dispute between the appellant and the respondent insurer has now been determined, it is my expectation that the respondent’s medical treatment, which all parties agree is reasonably necessary, will now be facilitated without further delay.

Judge Phillips
PRESIDENT

5 September 2024