Bond v Blacktown Area Community Centres Inc
[2024] NSWPICPD 57
•9 September 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Bond v Blacktown Area Community Centres Inc [2024] NSWPICPD 57 |
APPELLANT: | Doreen Bond |
RESPONDENT: | Blacktown Area Community Centres Inc |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W3488/23 |
PRESIDENTIAL MEMBER: | Acting Deputy President Kylie Nomchong SC |
DATE OF APPEAL DECISION: | 9 September 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 4 August 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – claimed cost of surgery to left shoulder – contemporaneity of complaint of injury to left shoulder in the context of other body parts injured in the same incident – challenge to Member’s findings in the reasons with respect to the medical evidence of the worker’s treating orthopaedic specialist – Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr G Horan, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr R Slocombe, solicitor | |
| Hall & Wilcox | |
DECISION UNDER APPEAL: | Bond v Blacktown Area Community Centres Inc [2023] NSWPIC 390 |
MEMBER: | Mr P Sweeney |
DATE OF MEMBER’S DECISION: | 4 August 2023 |
INTRODUCTION
The appellant (Ms Bond) was employed by the respondent (Blacktown Area Community Centre Inc) when, on 16 May 2016, she tripped and fell, suffering multiple injuries. The appellant underwent a number of surgeries, and other treatment, in respect of the injuries she sustained in that fall between 2017 and 2019. Liability was accepted for those surgeries.
In December 2022, the appellant made a claim for the cost of a left rotator cuff repair and excision of the outer end of the left clavicle (Proposed Surgery), which had been recommended by her treating orthopaedic surgeon, Dr Michael Stening.
On 20 December 2022 the respondent disputed the claim. Further to an application to review that decision, the respondent concluded, amongst other things, that the need for the Proposed Surgery did not result from the injury sustained on 16 May 2016.
The appellant commenced proceedings in this Commission seeking an order that the respondent pay for the cost of the Proposed Surgery pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was heard before the Member on 13 July 2023. On 4 August 2023, the Member determined that there would be an award for the respondent and handed down his Statement of Reasons.
The appellant has appealed that determination on two grounds:
(a) Ground One: The Member erred with regard to his summation findings in paragraph [53] of the Statement of Reasons of the medical evidence of the worker’s treating orthopaedic specialist, Dr Michael Stening.
(b) Ground Two: The Member erred with respect to the causal test in s 60 of the 1987 Act.
ON THE PAPERS
I have read the material in this matter including the material that was before the Member and the written submissions of both parties. I have read and considered the Member’s Statement of Reasons. The appellant submits that it is a matter for the Presidential Member as to whether the matter can be dealt with on the papers. The respondent submits that it is appropriate for the appeal to be determined on the basis of the documents and the parties’ submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
Pursuant to s 52(3) of the Personal Injury Commission Act 2020, I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to the monetary threshold pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met.
PRINCIPLES ON APPEAL
By reason of s 352(5) of the 1998 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. There can be no appellate intervention without a finding that there has been error.[1]
[1] Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138 (Iqbal), [11].
In its submissions, the respondent referred to the decision of Deputy President Wood in Usher v Coffs Harbour City Council[2] in which reference was made to the appeal principles enunciated by Roche DP in Raulston v Toll Pty Ltd.[3] In that decision, reference was made to Whiteley Muir & Zwanenberg Ltd v Kerr,[4] which held that whilst an arbitrator (now a member) may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[5] which was also referred to by the respondent in its submissions.[6]
THE EVIDENCE
[2] [2022] NSWPICPD 9.
[3] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[4] (1966) 39 ALJR 505, 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).
[5] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).
[6] Respondent’s written submissions in opposition to appeal against decision of Member dated 3 October 2023 (respondent’s submissions), [37].
Worker’s Injury Claim Form
The Worker’s Injury Claim Form dated 3 June 2016, lodged by the appellant, described the fall on 16 May 2016 as “tripped and went head and shoulder first into a brickwall (tripped on a step)” and described the body parts affected as “neck, shoulder, lower back”.[7] It did not state which shoulder was affected.
[7] Reply to Application to Resolve a Dispute (Reply), p 2.
Worker’s statements
The appellant’s statement dated 31 August 2021[8] only makes reference to the right shoulder as being affected in the fall in May 2016 and makes no reference to any difficulties with the left shoulder between 2016 and 2021.
[8] Application to Resolve a Dispute (ARD), p 1.
A supplementary statement dated 16 May 2023 indicates that during the fall on 16 May 2016 she fell on to her left shoulder.[9] There is a photograph of a person with injuries with bruising to the left shoulder annexed to that supplementary statement.[10] The appellant states that she started to experience more pain in her left shoulder in June 2022.
[9] ARD, p 4, [5].
[10] ARD, p 6.
Certificates of Capacity
The Certificates of Capacity submitted by the appellant between May 2016 and October 2016 refer to injuries to the left shoulder.[11] No Certificates of Capacity after October 2016 were part of the evidence before the Member.
[11] ARD, pp 43–73.
Treating doctors’ reports
The clinical records of Mt Druitt Medical and Dental Centre show that between August 2018 and July 2021, the appellant’s consultations were directed to her lumbar injuries, physiotherapy, left leg pain, right shoulder issues, pelvis and buttocks. There is a reference to a shoulder still being a problem on 28 September 2018 and a reference to Dr Gothelf.[12] However, as noted below, Dr Gothelf was only ever directed to the right shoulder issues. As such, I take the reference in the clinical notes to be a reference to the right shoulder.
[12] ARD, p 81.
There were no clinical records of GP consultations prior to August 2018 or after July 2021 put before the Member by the appellant.
The appellant’s general practitioner, Dr Sipeli, in his report dated 26 February 2023, opined:
“The left shoulder arose related [sic] to her fall on 16/05/2016 and as a consequence of the accepted injuries. It is not uncommon for opposite joints to be effected [sic] as well through compensating.”[13]
[13] ARD, p 30.
The report of Dr Greg Cameron dated 16 March 2017 described the history given by the appellant was that she had no prior problems with her neck, back or shoulder (again not stating which shoulder) prior to her injury but then reported on radiological investigations to the cervical spine, lumbar spine and right shoulder. There was no reference in that report to any issues or necessity for a radiological investigation of the left shoulder.[14] Interestingly the report described an intermediate to high grade partial thickness intrasubstance tear of the anterior to mid supraspinatus in the right shoulder, which, by implication, was the shoulder causing the appellant pain.
[14] Reply, pp 76–77.
The report of Dr Richa Rastogi, consultant psychiatrist, dated 16 October 2018 noted amongst other things that the appellant bruised her left shoulder in the fall on 16 May 2016[15] but does not otherwise mention ongoing issues with the left shoulder.
[15] ARD, p 104.
The reports of Dr Todd Gothelf, foot, ankle and shoulder surgeon, from 22 March 2017 to 2019 were all directed to the right shoulder partial rotator cuff tear, impingement, biceps tendonitis and the AC joint arthritis after the surgery in July 2017.[16] In none of those reports was there any indication that the appellant had complained of pain or difficulties with her left shoulder.
[16] ARD, pp 108, 113, 116; Reply, pp 78–89.
Upon referral by Dr Gothelf, the appellant attended the Sports Physiotherapy and Work Rehabilitation Centre. In its report dated 24 April 2019, the reported pain was only in the appellant's right shoulder.[17]
[17] ARD, pp 123–124.
The reports of Dr Matthew Tait, neurosurgeon, from March 2017 to March 2019 were directed to the injuries to appellant’s spine. The last report was directed to the request for an L3/4, L4/5 and L5/S1 anterior lumbar interbody fusion with posterior instrumentation and decompression.[18] Those reports contain no reference to any pain or loss of function in the left shoulder. However, to be fair, those reports also do not describe any of the symptoms which affected her right shoulder and in relation to which she was being treated by Dr Gothelf.
[18] ARD, pp 117–120, 133; Reply, pp 90–95.
The appellant was referred to the Western Sydney Pain Centre. The reports of Dr Sushama Deshpande from March 2018 to 13 April 2022[19] contain no reference to any complaints of pain by the appellant in respect of her left shoulder. In the main, the reports referred to ongoing lumbar back pain and cervical axial pain. There is also reference to pain in the left leg and both knees.[20] However, in the report dated 15 February 2023 there is reference to a left shoulder assessment with an Independent Medical Examiner the following month but no other description of the pain or its aetiology.[21] The report dated 16 May 2023 describes minimal progress with shoulder assessment and weight loss strategies but provides no indication of which shoulder was being discussed or any other information about shoulder problems.[22]
[19] ARD, pp 111–112, 128–129; Reply, pp 98–115.
[20] Reply, pp 108–110.
[21] Reply, p 117.
[22] Reply, p 119.
The reports of Dr Simon Coffey, orthopaedic surgeon, from November 2018 to February 2022[23] contain no reference to any complaint of pain or loss of functionality in the left shoulder. The reports are directed to the injuries and symptomatology in the spine, hips, legs and knees and those associated with the right shoulder rotator cuff injury and surgical repair. The report of 23 February 2021 discloses that the appellant described her injuries in the fall in 2016 to Dr Coffey as involving her “head and neck, shoulder and left leg”. Whilst the report did not state which shoulder, it went on to describe the shoulder injuries as leading to the right rotator cuff repair in June 2017.[24] Accordingly, it can be inferred that no part of the history given to Dr Coffey was in relation to injuries to or difficulties with her left shoulder. Those same comments were contained in Dr Coffey’s report to the appellant’s lawyers dated 25 March 2021.[25] This report indicates that a comprehensive examination was undertaken and the diagnosis given by Dr Coffey is limited to ongoing symptoms in the left hip, spine and right rotator cuff.[26]
[23] ARD, pp 109–110, 130–131; Reply, pp 121–137.
[24] Reply, p 127.
[25] Reply, p 129.
[26] Reply, p 130.
The appellant was referred to Dr Mark Winder, neurosurgeon and spine surgeon. In his report dated 6 June 2019 there is reference to symptomatology in the shoulder but it is clear that this is referring to the right shoulder operation.[27]
[27] ARD, pp 126–127.
There is a report from Dr John Obeid, consultant physician and geriatrician dated 2 December 2021 directed to Dr Coffey.[28] In that report the injury in 2016 was described as affecting the back, left hip and right shoulder. The report was directed to rehabilitation following her total hip replacement in November 2021. Again, no part of that report refers to any pain or difficulties that the appellant was having in respect of her left shoulder.
[28] Reply, p 138.
The appellant was referred to Dr Michael Stening by her GP Dr Sipeli, in or about November 2022. He examined her for the first time in November 2022. The history that the appellant gave to Dr Stening was that she tripped and fell forward into a brick wall and then onto the point of her left shoulder. The report then states: “She has had multiple injuries addressed since but symptoms from the shoulder persist.” This sentence implies that the history given by the appellant to Dr Stening was that she had continuous symptoms in her left shoulder from 2016 to 2022. If that is correct, then that history is not consistent with the information given to other medical practitioners, as described above. From that history, Dr Stening stated that “I suspect she has developed a degenerative acromioclavicular joint secondary to the traumatic injury in 2016 with inferior spurring impinging the subacromial space.”[29]
[29] Reply, p 140.
In his report to the insurer, dated 16 December 2022, Dr Stening stated that the patient explained that she fell onto her left shoulder, not her right. In describing the mechanism of the injury and causation for the left shoulder symptoms, Dr Stening answered: “Direct blow onto the tip of the shoulder is a classic mechanism for injury to the acromioclavicular joint.”[30]
[30] ARD, p 35.
In his report dated 16 March 2023, Dr Stening stated, “I believe the articular sided tear is directly attributable to the injury at work” and that the tear had “partially defunctioned the supraspinatus muscle increasing the risk of persistent, subacromial impingement.” Dr Stening then went on to say that:
“The acromioclavicular joint would have had some pre-existing arthritic change however the fall definitely had the potential to exacerbate/aggravate the changes and over the subsequent years contributed to progressive degeneration to a more advanced stage.”[31]
[31] ARD, p 39.
Radiological reports
A CT scan was done on 9 January 2019 but was directed only to the lumbosacral spine.[32]
[32] ARD, pp 114–115.
An ultrasound of the left shoulder on 8 July 2022 found the supraspinatus tendon, infraspinatus tendon, subscapularis tendon, teres minor tendon and long head of biceps tendon all intact showing normal contour with no focal tear identified. There was mild thickening of the subacromial subdeltoid bursa. The opinion was mild subacromial subdeltoid bursitis associated with shoulder impingement and an intact rotator cuff tendon with no focal tear.[33]
[33] ARD, p 31.
A radiological report by Dr Rahul Rustogi of an MRI of the left shoulder taken on 30 November 2022, describes:
“Mild AC joint widening and moderate osteoarthritis is noted. Mild joint effusion and synovitis is present. Degenerative thickening, signal and partial tearing of the inferior and posterior capsule with partial tearing of the dorsal superior capsule.”[34]
[34] Reply, p 142.
Prior medical assessments
A medical assessment was undertaken by Dr Tim Anderson, occupational physician, on 29 September 2022, and a Medical Assessment Certificate issued on 6 October 2022.[35] In that examination, the appellant gave a history of the fall in which she hit her head and, amongst other things, hurt her right shoulder. Only one part of the history referred to the left shoulder but it was described as neck pain which radiated down towards the left shoulder complex. An examination was conducted of both shoulders with the movements in the left shoulder being normal and restrictions noted only in the right shoulder.[36] It is notable that, despite the appellant asserting the onset of sharp pain in her left shoulder, as from June 2022, there is no reference to that being part of the history she gave to Dr Anderson.
[35] ARD, pp 135–144.
[36] ARD, p 138.
The appellant appealed Dr Anderson’s certificate and that appeal was determined by a Medical Panel Appeal.[37] This led to a revised assessment.[38] However, no part of the original assessment, nor the appeal panel review, involved issues with the left shoulder.
[37] Reply, pp 144–156.
[38] Reply, pp 157–158.
Expert reports
The appellant was examined by Dr Sheehy on 10 July 2019. The appellant gave a history of the fall in May 2016 and suffering from neck, back and right shoulder pain. No part of the history given to Dr Sheehy involved any issues with the left shoulder. On examination, abduction in her left shoulder was 180 degrees and it was found that there was no restriction of internal or external rotation of either shoulder.[39]
[39] Reply, pp 5–8.
Dr Gehr, orthopaedic surgeon, was qualified by the appellant's lawyers. In his report dated 2 June 2021, Dr Gehr undertook a comprehensive analysis of the treating doctors’ reports, imaging and examinations to that date. The report sets out a history of the fall and subsequent injuries. In terms of shoulder issues, the only reference is to a right shoulder injury which led to the rotator cuff repair.[40] There was significant commentary by Dr Gehr in relation to the degenerative effects on the various parts of the appellant’s body, as well as secondary symptoms. In terms of her then current symptoms (as at 2021), there was no report of any pain or symptomology in relation to the left shoulder but she did report stiffness of her right shoulder. Relevantly, on examination Dr Gehr found “[n]ormal examination and range of motion of left shoulder, left elbow, left wrist, left hand, able to bury fingertips left hand.”[41]
[40] Reply, pp 12–25.
[41] Reply, p 21.
In his two reports dated 26 May 2022,[42] Dr Gehr listed the treating doctors’ reports that he had been provided with and set out the relevant medical treatment that the appellant had received. Dr Gehr provided a comprehensive summary of the documentation. Relevantly, when discussing the aggravation of a pre-existing level of degeneration in the lumbosacral spine, gluteal and hip regions, Dr Gehr noted that Dr Coffey had opined that the fall precipitated a significant deterioration in mobility at that time.[43] No reference was made to similar aggravating issues arising with the left shoulder. The history given by the appellant during that examination did not include any minor pain or other issues in relation to the appellant’s left shoulder, but provided detailed descriptions of issues with other affected parts of her body. Dr Gehr conducted a thorough examination. In relation to the appellant’s upper extremities, he repeated his finding from the earlier report of “[n]ormal examination and range of motion of left shoulder, left elbow, left wrist, left hand, able to bury fingertips left hand.”[44]
[42] Reply, pp 26–50.
[43] Reply, p 29 (3rd paragraph).
[44] Reply, p 41.
In his report of 3 April 2023, Dr Gehr stated (for the first time) that in the fall in May 2016, the appellant fell onto the tip of her left shoulder. The report goes on to say that the appellant was “referred due to persistent left shoulder pain hence history and examination focused on this region.”[45] I note that by reference to the treating reports and clinical notes discussed above, the appellant did not make complaints of persistent left shoulder pain from 2016, but rather, the position was that the appellant did not disclose any difficulties at all with her left shoulder in her examinations with Dr Gehr in 2021 and 2022.
[45] ARD, p 19, [1].
In the 2023 report, Dr Gehr refers to the letter from Dr Stening dated 16 March 2023, referred to above.[46] Dr Gehr then describes the further reports of Dr Stening. In answer to the question of causation, Dr Gehr opined that the left shoulder issues had arisen because of the fall on 16 May 2016 and his reasoning was stated as: “The medicolegal literature supports involvement of the contralateral joint in 20% to 40% of cases.”[47]
[46] ARD, pp 19–20.
[47] ARD, p 26, [4].
Dr Brett Courtenay, orthopaedic surgeon was qualified by the respondent. In his report dated 28 June 2021,[48] he describes the history of the fall and summarises various treating doctors’ and imaging reports. On examination of both shoulders, Dr Courtenay found no deficiencies in the left shoulder movement but only in the right shoulder.[49] In his opinion, he notes that the shoulder (clearly referring to the right shoulder) was somewhat stiff but was improving. No reference is made to any issues of pain or movement with the left shoulder.[50]
[48] Reply, pp 51–59.
[49] Reply, pp 54–55.
[50] Reply, p 56.
Dr Courtenay was asked to re-examine the appellant and produced a report dated 3 August 2022.[51] Dr Courtenay obtained a history from the appellant where she described various symptoms including that “[t]here was a question regarding issues with her left shoulder and there was some discussion around possibly an injection of cortisone into that left shoulder.”[52] Examination of shoulder movement disclosed deficiencies in the left shoulder to a greater extent than that in the right shoulder.[53] However, in his opinion, Dr Courtenay stated: “There is now restriction of her left shoulder which was not present last year, and I believe is unrelated to her work injury.”[54]
[51] Reply, pp 60–69.
[52] Reply, p 61.
[53] Reply, p 63.
[54] Reply, p 64.
THE MEMBER’S DETERMINATION AND REASONS
The Member found that the appellant did injure her left shoulder in the incident on 16 May 2016.[55] This was despite there being no reference to any such injury in the appellant’s initial evidentiary statement, no references to any such injury in any medical reports prior to Dr Stening’s report of December 2022 and the absence of the clinical notes from the appellant’s GP at the time, as well as the absence of the ambulance records and the hospital discharge summary.[56]
[55] Bond v Blacktown Area Community Centres Inc [2023] NSWPIC 390 (reasons), [38].
[56] Reasons, [35], [37].
The Member relied on the Certificates of Capacity submitted in 2016. Each of those certificates stated (identically) that the diagnosis of injury was “closed head injury + scalp haematoma, left shoulder/right wrist both knees soft tissue injury.”[57] In addition, the Member referred to the photograph attached to the appellant’s statement dated 16 May 2023.[58]
[57] ARD, pp 43–75.
[58] Reasons, [38].
The Member also found that the Proposed Surgery was reasonably necessary medical treatment.[59]
[59] Reasons, [52].
The Member identified that the issue in the proceedings was whether or not the appellant’s employment with the respondent was causally connected to the current symptomatology in her left shoulder, thereby giving rise to an entitlement to medical expenses for the Proposed Surgery.[60]
[60] Reasons, [35].
The Member noted the submissions by counsel for the appellant that, in terms of causation, reliance was placed on the opinions of Dr Sipeli and Dr Stening.[61] The Member set out that counsel for the respondent relied on the evidence of Dr Courtenay, the absence of any clear account of the left shoulder injury in the various descriptions of the incident given by the appellant over the years and, more importantly, the absence of any complaint of left shoulder pain in the extensive clinical and medical record between 2017 and 2022.[62]
[61] Reasons, [14].
[62] Reasons, [15].
The Member then summarised the materials that had been put before him including the appellant’s statement and the relevant medical reports. The Member extracted excerpts from that material going to the reporting of involvement of the left shoulder in the fall and complaints (or lack thereof) of symptoms in the left shoulder over time. In particular, the Member analysed the various reports of Dr Stening and Dr Courtenay, being the two specialists on whom each party relied, respectively.[63]
[63] Reasons, [18]–[34].
In his findings and reasons, the Member conducted an analysis of the treating doctors’ reports. The Member noted the brief opinion of the appellant’s GP, Dr Sipeli, relating to causation which stated “[i]t is not uncommon for opposite joints to be affected as well through compensating”.[64] The Member then identified material in the reports of Dr Gothelf, Dr Sheehy, Dr Gehr, Dr Tait, Dr Anderson, and Dr Stening.[65]
[64] Reasons, [39].
[65] Reasons, [40]–[51], [53].
The Member agreed with counsel for the appellant that the opinion put forward by Dr Stening was emphatic, but found that it must be tested against other evidence. In conducting that testing, the Member compared the results of examinations from Dr Sheehy who noted full abduction of the left shoulder in 2019; that Dr Gehr reported normal examinations of the left shoulder in 2021 and 2022 and that Dr Courtenay recorded 170 degrees of abduction of the left shoulder in June 2021. Further, the Member noted that Dr Courtenay was of the view that those examinations were not consistent with the left shoulder tear being caused by the injury in 2016.[66]
[66] Reasons, [54].
The Member also took into account the lack of complaint of any abnormality in shoulder function for a period of five years.
The Member determined that Dr Gehr was unable to provide any explanation as to the appellant’s left shoulder symptoms resulting from the injury and made no attempt to reconcile his diagnosis with his previous examination findings of normal movement in the left shoulder.
The Member concluded that, on the balance of probabilities, the appellant had not made out her case that the need for left shoulder surgery resulted from the injury. On that basis, the Member made an award for the respondent. [67]
[67] Reasons, [57].
SUBMISSIONS
In relation to Ground One, the appellant contends that the Member erred in his summation in paragraph [53] of the reasons because the Member used the word “some” when describing Dr Stening’s opinion as to the nature of the aggravation of degenerative changes in the acromioclavicular joint. The Member stated an articulated sided tear of the appellant’s supraspinatus had been caused by the injury, which had also caused some aggravation of degenerative changes in the acromioclavicular joint. This was submitted to be a misdescription because Dr Stening had described it as “progressive traumatic degenerative change” and “advanced degenerative change”.[68]
[68] Written submissions on behalf of the appellant dated 31 August 2023 (appellant’s submissions), [14]–[18].
In relation to Ground Two, the appellant submits that the Member erred by failing to identify the test in Kooragang Cement Pty Ltd v Bates.[69] The appellant submits that the chain of reasoning undertaken by the Member was erroneous because it focused on the lack of abnormality of the range of movement in the left shoulder for the first 5 years after the fall.[70]
[69] (1994) 35 NSWLR 452 (Kooragang).
[70] Appellant’s submissions, [25].
The appellant submits that the Kooragang test of “a commonsense evaluation of the evidence” should have started from the fact that the appellant injured her left shoulder on 16 May 2016. The next step should have been a finding that the appellant always had some minor left shoulder pain. Next there should have been a finding that there has been no intervening accident or event to break the causal chain. Finally, it is submitted that the opinion of Dr Stening should have been preferred with a finding that the fall “resulted in an articular sided tear supraspinatus with subacromial bursitis and resulted in progressive traumatic degenerative change with time to an advanced stage”.[71]
[71] Appellant’s submissions, [27].
The appellant submits that the error identified in Ground One, being the misdescription of the nature of degenerative change described by Dr Stening, has fed into the Member’s misunderstanding of the worker’s medical case and her progressive symptoms.[72]
[72] Appellant’s submissions, [29].
The respondent submits, in relation to Ground One, that the Member had, in paragraphs [24] to [27] of the reasons, given full consideration to the reports and opinions of Dr Stening. As such, the use of the word “some” in paragraph [53] was of no material significance. Further, the respondent submits that an appeal under s 352(5) of the 1998 Act is limited to correcting an error of fact, law or discretion. It is not a review or a rehearing. Given that the appellant has not specified whether the use of the word “some” constituted an error of fact, law or discretion, the respondent submits it is not a matter that can be addressed in this appeal.[73]
[73] Respondent’s submissions, [16]–[22].
In relation to Ground Two, the respondent submits that the fact that no mention was made of the Kooragang decision is immaterial. It does not follow that the Member failed to apply the relevant test of undertaking a commonsense evaluation of the evidence.[74]
[74] Respondent’s submissions, [27].
The respondent contends that the appellant’s assertion that the Member focused exclusively on the absence of an abnormality of range of movement of the left shoulder in the first 5 years after the fall is an inaccurate description of the path of reasoning adopted by the Member.[75]
[75] Respondent’s submissions, [28].
The respondent contends that paragraphs [39] to [53] of the reasons indicate the Member’s consideration of all of the relevant material and medical reports, and therefore, it cannot be said that the Member focused exclusively on the absence of an abnormality of range of movement of the left shoulder in the first 5 years; and further says that the assertion is an oversimplification of the findings. [76]
[76] Respondent’s submissions, [29]–[31].
The respondent submits that the Member considered all of the evidence and used his evaluative judgment to reject the hypothesis put forward by Dr Stening, due to its inconsistency with the balance of the other medical material that was available.
Finally, the respondent contends that consideration of the absence of signs of abnormality on medical examination by various treating doctors and the absence of complaints were factors that should have been taken into account by the Member in reaching his finding, as part of the commonsense evaluation of the causal chain.[77]
[77] Respondent’s submissions, [39].
The appellant did not file submissions in reply.
CONSIDERATION
In order for the appeal to succeed, I must be persuaded that the Member was in error, as is required by s 352(5) of the 1998 Act. I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Owston Nominees:[78]
“24. What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.”
[78] Owston Nominees, [24]–[25], [28].
I have considered the material before the Member in accordance with the principles in Owston Nominees.
Ground One: The Member erred with regard to his summation findings in paragraph [53] of the Statement of Reasons of the medical evidence of the worker’s treating orthopaedic specialist, Dr Michael Stening
As noted by the respondent, the appellant has not identified whether she contends that the use of the word “some” in paragraph [53] of the reasons constitutes an error of fact, law or discretion. In my opinion, given the arguments put forward by the appellant, the assertion is one of an error of fact.
The appellant contends that by using the word “some”, it downplays the nature of the mechanism by which the degenerative change in the appellant’s left shoulder has manifested. The reason this is said to be important is that, according to the appellant, the description feeds into the chain of reasoning adopted by the Member in finding the absence of a causal link between the injury on 16 May 2016 and the onset of symptoms in the appellant's left shoulder which now require the Proposed Surgery.
However, I find that there is no error of fact. Whilst the use of the word “some” in certain contexts may imply a minimal or modest amount, I accept the respondent’s submissions that the word “some” should be considered in the context of the Statement of Reasons, whereby the Member set out, in quite some detail, each of the findings and opinions of Dr Stening. In paragraph [24] of the reasons, the Member specifically extracts the passage in which Dr Stening describes the “progressive traumatic degenerative change with time”. Further, at paragraph [27], the Member extracts the passage from Dr Stening’s report dated 16 March 2023 in which he opined that the fall had “the potential to exacerbate/aggravate the changes and over the subsequent years contributed to progressive degeneration to a more advanced stage.”
If there had been no exposition of the actual words and opinions used by Dr Stening, there may have been some merit in the appellant’s argument but given the manner in which the Member has set out the very passages upon which the appellant relies, I am of the view that it shows that the Member gave specific consideration to those opinions in his consideration.
Accordingly, I find that there is no error a fact by the use of the word “some” in paragraph [53] of the reasons.
I find that Ground One has not been made out.
Ground Two: The Member erred with respect to the causal test in section 60 of the 1987 Act
Section 60 of the 1987 Act provides, relevantly for this matter, as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
…”
For the purposes of this ground of appeal, it is the words “as a result of an injury received by a worker” that must be considered – the finding of a causal nexus between the injury and the reasonable necessity for the Proposed Surgery.
The appellant contends that the Member did not refer to the test in Kooragang and did not apply it.[79]
[79] Appellant’s submissions, [22], [25].
Kirby P (as his Honour then was) held in Kooragang, as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.” (emphasis added)
Further, it has been held that when referring to the application of “commonsense”, Kirby P was not suggesting that it be applied “at large” or that issues were to be determined by “commonsense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence.[80]
[80] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45, see also Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724E.
In my opinion, the absence of any reference to the principles in Kooragang is of no consequence. The gravamen of Ground Two is the allegation that the Member did not adopt a commonsense approach to an evaluation of the material before him because he “focused exclusively” on one factor – being the absence of any abnormality of range of movement in the left shoulder for a period of 5 years after the accident.
I interpolate here that both the Member and the parties have not properly described the evidence in that regard. Whilst it is true that the Certificates of Capacity which were put before the Member (all dated in 2016), stated that the diagnosis of injury was “closed head injury + scalp haematoma, left shoulder/right wrist both knees soft tissue injury,”[81] nothing in those Certificates described any pain, symptomatology or lack of function of the left shoulder. Further, in all of the clinical notes and medical reports that were before the Member, there was no mention at all of any pain (minor or otherwise) nor any abnormality of a range of movement of the appellant’s left shoulder between May 2016 until the referral for imaging of the left shoulder on 8 July 2022.[82] This is a period of just over 6 years. Due to the fact that the clinical records of Dr Sipeli, the appellant’s GP, were not before the Member, it is not known when the appellant first reported the left shoulder symptoms to her GP. Having said that, the difference between 5 and 6 years is not material. The issue is that there was a lengthy period of time between the injury and the onset of symptoms which gave rise to the recommendation for the Proposed Surgery.
[81] ARD, pp 43–75.
[82] ARD, p 31.
The appellant bears the burden of establishing the asserted error of law. An error arises if the appellant can establish that that the Member failed to ask himself the right question under the statute.[83]
[83] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, 331 [9]–[10] (per Gleeson CJ), 346 [68]–[69] (per McHugh, Gummow and Hayne JJ).
The appellant contends that the commonsense causal chain of reasoning should have been conducted as set out in paragraph [27] of her submissions. However, the line of reasoning posited therein omits entirely the fact that there were no reports of pain and no loss of functionality in the left shoulder reported or noted on examination between 2016 and June 2022. The appellant contends that the only material facts that should have been considered were the bruising on the left shoulder in May 2016, the assertion by the appellant in May 2023 that she had always suffered minor pain in her left shoulder and the onset of a sharp pain, on lifting, in June 2022; thereafter followed by the diagnosis of Dr Stening.
I do not accept that this is the proposed line of reasoning that should have been undertaken by the Member. I note that there is no evidence of the appellant saying to any treating or consulting medical practitioner that she had experienced constant minor pain in her left shoulder since 2016, and that is surprising given the large number of times that the appellant was examined by or consulted with orthopaedic surgeons, a neurosurgeon, a pain specialist, physiotherapists, and her GP and gave a history of the issues affecting her. I note that the first time that the appellant asserted that she had constant minor pain in her left shoulder since 2016 was in the appellant’s supplementary statement dated 16 May 2023. No explanation is made by the appellant as to how to reconcile that lack evidence in her proposed line of reasoning.
Similarly, I do not accept that a commonsense evaluation of the evidence as to the causal chain would omit the fact that there was no loss of functionality in the left shoulder reported or noted on examination between 2016 and June 2022. Rather, it is a key consideration in the history of the matter.
In any event, even if this alternative evaluation was open, that does not mean that the Member was in error when adopting the approach he took.
It is now well accepted that the burden on the appellant is to establish that the Member was wrong, by material facts being overlooked or irrelevant facts being taken into consideration or by the wrong test being applied: Raulston,[84] a case cited and upheld by many Presidential decisions.
[84] Raulston, [19]–[20].
Further, it is similarly well settled that the principles in Owston Nominees apply:
“… while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[85]
[85] Owston Nominees, [28].
In this matter, it may have been open for the Member to find that the opinions of Dr Stening and Dr Sipeli should be accepted, but the fact that the Member did not make that finding does not, of itself, demonstrate error.
In the proceedings below, the onus was on the appellant to put before the Member sufficient evidence to establish the causal nexus between the injury on 16 May 2016 and the need for the Proposed Surgery. I find that on consideration of all of the material put before the Member, it was open and available to the Member to find that the evidence was insufficient in that regard.
In Dr Sipeli’s report of 2023, he does no more than state that it is not uncommon for opposite joints to be affected through compensating. There is otherwise no articulation of reasoning as to why there had been no symptomatology in the left shoulder since 2016.
The Member specifically found that there was no convincing explanation by Dr Stening to reconcile the fact that, according to Dr Stening, a properly functioning supraspinatus prevents subluxation of the humeral head on active abduction and the delayed onset of any restriction of movement in the appellant’s left shoulder.[86] That was a finding that was open on the evidence.
[86] Reasons, [55].
Similarly, the Member determined not to accept the evidence of Dr Gehr (who supported the connection between the injury on 16 May 2016 and the onset of left shoulder symptoms) because the Member found that Dr Gehr provided no logical explanation about how he arrived at that conclusion in view of the contents of his earlier reports and further, that there was no attempt in Dr Gehr’s report to reconcile his conclusion as to causation that the current left shoulder symptoms (which Dr Gehr erroneously recorded as having occurred in 2021) were referable to the original injury, with his previous examination findings. As set out above, in his reports of June 2021 and May 2022, Dr Gehr found no abnormality and recorded no complaints of pain or loss of functionality in the appellant’s left shoulder. I find that the Member’s finding that this lack of explanation and lack of reconciliation of the findings on examination was based on a lacuna in the evidence was it was therefore open and available to the Member to make the finding he did.
Similarly, I find that it was open to the Member to reject the opinion of Dr Stening that the articular sided supraspinatus tear was caused by the accident in May 2016 because it had no apparent effect on the function of her left shoulder for a significant period of time. The Member referred to the evidence of Dr Sheehy who noted full abduction of the left shoulder in 2019 and the abovementioned reports of Dr Gehr that also reported no loss of functionality in the left shoulder in 2021 and again in June 2022.
Having considered all of the material put before the Member, I am of the view that the Member conducted a thorough consideration of that material and that the process he adopted was consistent with that required in Kooragang, being a commonsense evaluative exercise in determining the issue of causation, including taking into account the expert evidence.
I find that the appellant has done no more than contend for a different view of the evidence and has not established error in the fact-finding exercise undertaken by the Member. As such, there can be no appellate intervention without a finding that there has been error.[87]
[87] Iqbal, [11].
I find that Ground Two has not been made out.
CONCLUSION
I find that none of the grounds of the appeal are made out.
Accordingly, the appeal is dismissed.
DECISION
The Certificate of Determination dated 4 August 2023 is confirmed.
Kylie Nomchong SC
ACTING DEPUTY PRESIDENT
9 September 2024
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