Borg v Le Mac Personnel Pty Ltd
[2025] NSWPIC 306
•1 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Borg v Le Mac Personnel Pty Ltd [2025] NSWPIC 306 |
| APPLICANT: | Borg |
| RESPONDENT: | Le Mac Personnel Pty Ltd |
| MEMBER: | John Harris |
| DATE OF DECISION: | 1 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; right ulnar nerve condition; claimant performed heavy and repetitive work over five years causing various injuries and resultant surgeries; right arm condition developed following left arm surgery; medical evidence supported possible link between overuse and medical condition; lack of scientific precision does not prevent finding on balance of probabilities; EMI (Australia) Pty Ltd v Bes applied; evidence of over-use and temporal connection with development of right arm symptoms sufficient to establish causal connection; ongoing right ulnar condition causatively related to work injuries; injury is a material contributing factor to the ongoing condition; Murphy v Allity Management Services Pty Ltd applied; Held – applicant entitled to costs of surgery for right ulnar nerve transposition. |
| DETERMINATIONS MADE: | 1. The applicant suffered right ulnar nerve condition as a result of the accepted work injuries deemed to have occurred on 11 October 2018. 2. The right ulnar surgery proposed by Dr Kuo is as a result of the injury within the meaning of s 60 of the Workers Compensation Act 1987. 3. The respondent pays, pursuant to s 60(5) of the Workers Compensation Act 1987, the costs of and incidental to a right ulnar nerve transposition. |
STATEMENT OF REASONS
BACKGROUND
Ms Elizabeth Borg (the applicant) was employed by the respondent from 2013 to August 2018 and suffered various injuries due to the heavy and repetitive nature of the employment duties. The allegation in the Application to Resolve a Dispute and the various notices issued by the respondent treat the date of injury as 11 October 2018 (deemed). I have adopted that date in these reasons.
The applicant claims pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) the costs of and incidental to a right ulnar nerve transposition.
The matter was listed for arbitration hearing on 27 June 2025 when Mr Stanton of counsel appeared for the applicant and Mr Goodridge of counsel appeared for the respondent. The following documents were admitted by consent:
(a) Application to Resolve a Dispute and attachments;
(b) Reply and attachments, and
(c) applicant’s Application to Lodge Additional Documents attaching a further report.
There was no request to call oral evidence.
Counsel were advised that material that was not the subject of express submission would not be considered. There was no objection to this course.
ISSUES/AGREEMENTS
The respondent accepted that the applicant suffered injury to the cervical spine, right shoulder, left shoulder and left elbow in the course of employment with the respondent on
11 October 2018.[1][1] Application to resolve a dispute (Application) p 24.
The applicant principally relied on the allegation that the right ulnar nerve condition resulted from the operative procedures to the left ulnar nerve and left shoulder in 2020 and
February 2021.The applicant faintly alleged that the right ulnar nerve condition was directly caused by the nature and conditions of employment. The difficulty with the latter argument was the absence of contemporaneous complaint and the accepted delayed complaint of right ulnar symptoms.
The respondent denied the allegation of injury and/or consequential condition and denied that the proposed treatment was as a result of the injury within the meaning of s 60 of the 1987 Act.
The respondent accepted that the proposed treatment was reasonably necessary within the meaning of s 60 of the 1987 Act.
EVIDENCE
General practitioner
Dr Massoud, general practitioner (GP), provided a report dated 25 July 2024.[2] The doctor noted the claimant underwent a C5/6/7 discectomy and fusion in June 2019, a left rotator cuff repair in February 2020 and left ulnar nerve transposition surgery due to ongoing ulnar neuropathy in February 2021.
[2] Application p 60.
The GP noted that in July 2021 Dr Kuo recommended right ulnar nerve entrapment release due to right ulnar neuropathy. Dr Massoud stated:[3]
“I am in agreeance with Ms Borg’s orthopaedic surgeon, Dr Warren Kuo, regarding the need for R ulnar transposition surgery. She has ongoing evidence of R ulnar neuropathy symptoms.”
[3] Application p 61.
The clinical note of the GP dated 30 July 2021 noted the recent consultation with Dr Kuo and that the orthopaedic surgeon recommended bilateral shoulder release surgery and right ulnar entrapment release.[4] I was advised by Mr Goodridge and it was not contradicted by the applicant’s counsel that this was the first reference in the clinical notes to the right ulnar nerve.
[4] Application p 229.
Statement
The applicant provided a statement dated 5 July 2024.[5] The applicant commenced employment with the respondent in or around 2013 on a full-time basis. She sustained accepted injuries to the neck, bilateral shoulders and left elbow as a result of heavy and repetitive work.
[5] Application p 1.
The applicant ceased work due to her injuries on 31 August 2018 and has been treated by various doctors including by Dr Warren Kuo, orthopaedic surgeon, who she first consulted in February 2019.
The applicant underwent a cervical fusion in June 2019, left shoulder surgery in February 2020, left ulnar transposition on 17 February 2021 and right shoulder surgery on
24 November 2021.The applicant first consulted Dr Massoud, GP in June 2021 and complained about various symptoms including abnormal sensations within the right elbow.
The applicant provided a further statement dated 14 April 2025.[6] In relation to the onset of right elbow symptoms the applicant stated:
“22. My right elbow symptoms began to develop after my left shoulder surgery in February 2020. Initially, I noticed mild tingling and sensitivity in my right elbow, particularly when using my right arm for tasks that I previously relied on my left arm for. However, the symptoms became significantly worse following my left ulnar nerve transposition in February 2021. It is my left arm was immobilised for an extended period post-surgery, and to rely heavily on my right arm for most activities, including lifting, carrying, and daily self-care. Over time, this compensatory overuse led to increasing pain, numbness, and electric shock-like sensations in my right elbow.
23. By mid-2021 my right elbow pain had become a persistent issue. Simple tasks such as holding objects, gripping items, or even resting my arm on a surface cause discomfort and sharp pain. The sensitivity in my elbow worsened, and I began experiencing tingling that extended down my forearm into my hand. This significantly impacted my ability to perform daily activities, and I struggled with tasks like cooking, cleaning, and even dressing myself.”
[6] Application p 14.
On 22 July 2021 the applicant reported the right ulnar symptoms to Dr Kuo.
Dr Warren Kuo
There are a series of reports from Dr Kuo, orthopaedic surgeon, commencing on
27 February 2019.[7] Dr Kuo performed a left shoulder arthroscopic repair and a debridement of the left rotator cuff tear on 6 February 2020.[8][7] Application p 116.
[8] Application p 120.
On 17 February 2021 Dr Kuo formed a left subcutaneous ulnar nerve transposition.[9] Subsequent reports noted progress following surgery including a flareup whilst driving.
[9] Application p 129.
In a report dated 15 August 2024 Dr Kuo noted the applicant developed left ulnar symptoms in 2020 and underwent a left subcutaneous ulnar nerve transposition on 17 February 2021.[10] The doctor noted that the applicant “developed” right elbow and ulnar nerve symptoms “around this post-operative period” and reported these symptoms in a consultation on
22 July 2021.[10] Application p 62.
I agree with Mr Goodridge that the reference to post-operative period is a reference to the surgery on 17 February 2021 given the context of the sentence.
Dr Kuo noted that the applicant’s problem with the ulnar nerve was not compression but irritation from subluxation which did not show up in a nerve conduction study.
In a report dated 30 April 2025 Dr Kuo stated:[11]
“Elizabeth has reported ongoing right ulnar nerve symptomatology. There is clinical evidence of subluxation and altered sensation. There are two causal factors for her ulnar symptoms. The first is the nature of her work which has required repetitive lifting of 13-16 kg cylinders. These actions and activities of work have contributed to her symptoms, not only to the elbows but to the cervical spine and shoulder. As you are aware, she has undergone successful bilateral shoulder surgeries as well as a left ulnar nerve transposition. During these surgeries, she is required a high degree of dependence and overuse of her right elbow. It is accepted aetiology that repeated stress and trauma can contribute to right ulnar symptomatology including neuritis +/- subluxation.”
[11] Applicant’s late Application.
There was discussion in submissions of the meaning of the words “during these surgeries” referenced in the above paragraph. The word “during” is read as “following” which is a reasonable meaning of the word given the context of the sentence in the above quoted paragraph. The respondent’s counsel accepted that this was a reasonable interpretation of that word.
Qualified opinions
Dr Bodel
Dr James Bodel, orthopaedic surgeon, provided a series of reports. In the initial report dated 21 August 2020 the doctor referred to the left arm symptoms which extended to tingling in the left hand.[12] The applicant in her submission accepted that the reference in that report to the ulnar nerve “must be to the left”.
[12] Application p 32.
In a report dated 16 June 2022[13] Dr Bodel noted symptoms in the lateral epicondylar region of the elbows, the right side worse than the left. The doctor opined that the applicant developed pain in the neck, both shoulders and elbows due to the nature and conditions of employment with the respondent. That conclusion was based in part, on symptoms in the right elbow developing in the course of the employment.
[13] Application p 42.
Dr Bodel provided a further report dated 21 June 2024.[14] That report again noted that the symptoms in the neck, both shoulders and both elbows developed over a period of time associated with the nature and conditions of the applicant’s employment.
[14] Application p 50.
Dr Bodel noted that the applicant underwent a left ulnar nerve transposition in the region of the medial epicondyle of the left elbow on 17 February 2021. There was a report of worsening of right elbow symptoms while overuse of the right arm while recovering from the neck, left shoulder and left elbow surgeries.
Dr Bodel opined that the claimant suffered injury to the cervical spine, both shoulders and both elbows related to the conditions of employment and that the right elbow condition was “a consequential injury while overusing the right arm due to undergoing treatment for the neck and left arm”.[15]
[15] Application p 55.
Dr Bodel provided a further report dated 14 April 2025.[16] The doctor then stated:
“Compensatory overuse of the right arm during recovery from neck and left shoulder girdle pain can lead to overuse of the secondary muscle groups, resulting in muscle imbalance and increased strain across the elbow joint. This excessive mechanical loading can aggravate the ulnar nerve by causing sustained compression and traction of the ulnar nerve at the cubital tunnel resulting in ulnar neuritis.”
[16] Application p 58.
SUBMISSIONS
The submissions have been recorded. Counsel referred to the relevant evidence which has been set out above. Where relevant, the submissions are discussed in the findings.
REASONS
A brief statement is required for the reasons for determination.[17] The applicant otherwise bears the onus of proof on the balance of probabilities.[18]
[17] Section 294(2) of the 1998 Act.
[18] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].
The parties accepted that the relevant principles for the applicant establishing that the right ulnar nerve symptoms were consequential to the accepted work injuries were those discussed by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates.[19] I adopt that common approach.
[19] (1994) 35 NSWLR 452 at [462], [463]-[464].
Factual finding
The respondent submitted that the right ulnar nerve symptoms developed in 2021 following the left ulnar nerve surgery in February 2021 and disputed a portion of the applicant’s evidence that the symptoms developed in 2020. The respondent accepted that the right ulnar symptoms developed, and right elbow pain had become a persistent issue by mid-2021.[20]
[20] The respondent accepted paragraph 23 of the applicant’s second statement, Application p 18.
The applicant in submissions initially accepted the fact as to onset of right ulnar symptoms in 2021 but later contended that the symptoms developed in 2020 and increased in nature in early 2021. The applicant submitted that she was describing an initial noticing of symptoms in 2020 which gradually became significant and reported these in mid-2021.
The fallibility of human recollection and the importance of contemporaneous records are referenced in numerous cases including Coote v Kelly,[21] Onassis v Vergottis,[22] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[23] Campbell v Campbell[24] and Watson v Foxman.[25]
[21] [2016] NSWSC 1447.
[22] [1968] 2 Li Rep 403 at 431
[23] [2013] EWHC 3560 (Comm) at [15]-[22].
[24] [2015] NSWSC 784 at [73]-[76].
[25] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
In Nominal Defendant v Corbin Davies J stated:[26]
“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person’s mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved.”
[26] [2017] NSWCA 6 at [167], Emmett JA agreeing at [156].
The report of Dr Kuo dated 15 August 2024 supports the respondent’s submission that the symptoms developed “around this post operative period”.[27] This is, as the respondent submitted, a positive record of when the symptoms first occurred as opposed to an absence of record of symptoms. The records of Dr Kuo also have the benefit of reliability as they are from a specialist who treated the applicant for a number of conditions over the previous two years. Clearly the onset of a new condition in the right elbow is something that Dr Kuo would have recorded as he had previously treated the claimant for the shoulders and left elbow.
[27] Application p 62.
The respondent otherwise submitted, and it was not traversed by the applicant, that there is no recorded complaint of right ulnar nerve symptoms prior to 2021. The clinical records of the GP first record right ulnar symptoms in July 2021.
The applicant’s evidence supporting an onset in 2020 is based on a statement dated
14 April 2025. The statement suffers from the problems associated with recollection discussed in the above authorities.On the balance of probabilities, I prefer the accuracy of the contemporaneous records and accept the respondent’s submission that the right ulnar symptoms developed following the left ulnar surgery in early 2021. The right ulnar symptoms gradually worsened when they were reported by the claimant to Dr Kuo and her GP in July 2021.
Findings re causation of right ulnar condition
The applicant referred to the undisputed strenuous nature of work over five years which caused a number of conditions and surgical procedures to the cervical spine, left shoulder and left elbow.
The respondent submitted that the incorrect history recorded by Dr Bodel as to the onset of right elbow symptoms “diminished” the weight to be given to his opinion. It submitted that the opinion of Dr Bodel was based in part on the assumed fact that the right ulnar nerve was injured at work based on an incorrect history of the onset of contemporaneous complaint of right elbow symptoms. It submitted that Dr Bodel’s conclusion infected the opinion on causation that the symptoms also related to the overuse following the left ulnar nerve surgery because he never considered the position that the right ulnar nerve was not previously injured.
The fair climate (Paric) principles were discussed by the High Court in Paric v John Holland (Constructions) Pty Ltd[28] and recently discussed by the Court of Appeal in Booth v Fourmeninapub Pty Ltd[29] when Leeming JA stated:[30]
“Although a footnote cited the High Court’s decision in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 for the reference to ‘fair climate’, in fact that language, deriving from Culver v Sekulich 344 P 2d 146 (1959), a decision of the Supreme Court of Wyoming, was endorsed by this Court’s ex tempore judgment in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510. The language concerns the degree of accuracy and specificity required when an expert is asked for an opinion on hypothetical facts. In Culver, two men died in a plane crash, and the passenger’s widow sued the pilot’s estate in negligence. Necessarily much of the expert evidence was hypothetical, and in an appeal based on error (rather than rehearing) it was urged that it was wrongly admitted. The passage endorsed by this Court in Paric was at 154:
‘From our analysis of the record, it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance, and other vital points but in general furnished a fair climate for the consideration of the views of the expert witnesses.’”
[28] [1985] HCA 58.
[29] [2020] NSWCA 57 at [14].
[30] Bell P and White JA agreeing.
In OneSteel Reinforcing Pty Ltd vSutton[31] (Sutton) McColl JA stated:[32]
“66. In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) stated:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’ (emphasis added)
67. Beazley JA discussed a similar issue in Hancock v East Coast Timber Products Pty Ltd (at [70] - [78]), a matter to which the arbitrator referred (at [76]). In that case the employee claimed to have injured his knee when he fell whilst stacking timber in the course of his employment. There were no witnesses to his fall and he did not report the incident. He was off work for a few days after the incident but thereafter continued to work for another two and a half years, save for various periods of sick leave, before remaining permanently off work on sick leave. The employer terminated the employee's employment six months later. The employee claimed that he suffered from permanent incapacity as a result of the injury sustained in the work incident. The employee had also suffered pain in his knee after his fall in a number of non-work related incidents. An arbitrator found in his favour that his employment was a substantial contributing factor to his knee injury and awarded him weekly compensation.
68. The reports of the employee's treating orthopaedic surgeon, Dr Summersell, did not refer to the subsequent non-work related incidents. Beazley JA held (at [88]) that that did not amount to a failure to satisfy the requirement that an expert should ‘identify the facts and reasoning process which he or she asserts justify the opinion’: Hancock v East Coast Timber Products Pty Ltd (at [77]) referring to ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 (at [105]) per Spigelman CJ. In her Honour's view ‘[t]he extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports’.”
[31] [2012] NSWCA 282.
[32] At [66]-[68].
The observations of Allsop P in Sutton (at [2]) are pertinent. His Honour stated:
“Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”
I read Dr Bodel’s opinion as expressing two different causes for the right ulnar nerve condition and that the latter issue (the surgery) is not dependent on the conclusion that the right ulnar nerve was injured at work.
However, if I am wrong in that view any defect in Dr Bodel’s opinion does not impact on Dr Kuo’s opinion.
Dr Kuo is obviously aware of when the right ulnar nerve symptoms developed because it is his report which is relied upon in the finding as to when these symptoms occurred.
Furthermore, to the extent that there are issues of weight with respect to Dr Bodel’s opinion the opinion is only confirmatory of Dr Kuo’s opinion.
The respondent emphasised that the medical opinion expressed by Dr Kuo on causation was that the stated causes “can contribute to right ulnar symptomatology” and this did not reach the level of probability. It submitted that this opinion should be interpreted as only a possibility. Accordingly, it was submitted that the applicant had not discharged the burden of proof on the balance of probabilities that the right ulnar nerve condition was caused by the accepted work injuries.
The respondent otherwise noted and submitted that Dr Bodel expressed causation in terms of “excessive mechanical loading can aggravate the ulnar nerve”[33] which also was expressed as “can” which was a “mere possibility”.
[33] Application, p 58.
A lack of scientific precision does not disenable the Commission from deciding an issue on the balance of probabilities.[34]
[34] and EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes) at 242; Woolworths Ltd v Christopher-Coates [2014] NSWWCCPD 14 at [185].
In Bes Herron CJ stated:[35]
“It is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death in which case of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning.”
[35] Bes at p 242.
Bes was referred and applied by the Court of Appeal in Commissioner of Police v David Rea[36] when Handley JA (with whom Allsop P and Johnson J agreed) rejected the argument that the principles referred to in Adelaide Stevedoring Co Limited v Forst[37] were limited “to an immediate temporal connection between the alleged cause and the injury”.
[36] [2008] NSWCA 1998.
[37] [1940] HCA 45; (1940) 64 CLR 538 at 563-4 and 569.
The respondent did not dispute these principles when they were drawn to its attention.
There was no issue taken by the respondent with the applicant’s evidence concerning the overuse of the right arm following the left ulnar nerve surgery.
I am entitled to use “commonsense” in evaluating the opinions contained in medical reports. The concept of the use of “commonsense” inferences was discussed in Tudor Capital Australia Pty Ltd v Christensen[38] when McColl JA (as her Honour then was) stated:[39]
“The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material. In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”
[38] [2017] NSWCA 260 (Christensen).
[39] At [364]-[368], Mcfarlan JA agreeing at [425].
I agree with Mr Stanton’s submission that the question of overuse of the right arm following the left arm surgery was “perfectly understandable and makes commonsense as she could not use her left arm and was using her right arm more”.
The respondent submitted that there should be a “weighing up of the competing propositions”. However, it did not contend nor dispute that, on its submission, the development of right ulnar symptoms were temporarily connected to the applicant’s overuse of the right arm following the left ulnar nerve surgery.
The medical opinion of both Dr Kuo and Dr Bodel is that there is a plausible medical explanation between overuse of the right limb and the development of the right ulnar nerve symptoms. Considering the applicant’s evidence of over-use and the temporal development of right ulnar nerve symptoms during the time, this is in my view compelling evidence sufficient to establish causation on the balance of probabilities.
This conclusion is consistent with Mr Stanton’s submission, the applicant’s evidence on overuse, the finding of onset of symptoms and medical opinions explaining the reason for the development of right ulnar symptoms. In my view these reasons are consistent with the principles discussed above in Christensen, particularly as there is a strong temporal connection between the overuse of the right arm following left arm surgery and the onset of right ulnar nerve symptoms.
Causation of need for treatment
The relationship between the injury and the need for treatment was raised as a separate issue although not the subject of express submission by the respondent save that it denied that the right ulnar nerve condition was causatively related to the accepted work injuries.
The applicant is required to establish, in accordance with the test in s 60 of the 1987 Act, that the injury is a material contributing factor to the ongoing condition and the need for treatment: Murphy v Allity Management Services Pty Ltd.[40] This test was accepted by the parties.
[40] [2015] NSWWCCPD 49.
As previously noted, there is no issue that the various injuries to the shoulders, cervical spine and left ulnar nerve and the associated surgeries particularly to the left ulnar nerve were caused by the work. I refer to the findings of the cause of the right ulnar nerve symptoms and the relationship to the accepted work injuries.
There is no dispute that the applicant has ongoing right ulnar nerve symptoms.[41] Otherwise, the medical opinion provided by Dr Kuo, Dr Bodel and the GP is that the proposed surgery will treat the right ulnar nerve symptoms.
[41] Concession during respondent’s submissions.
For these reasons I am satisfied that the applicant has established that the need for surgery is as a result of the injury.
FINDINGS AND ORDERS
The findings and orders are set out in the Certificate of Determination.
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