Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) - [2025] NSWPICPD 59

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2025] NSWPICPD 59
APPELLANT:	Anna Bulghadaryan
RESPONDENT:	State of New South Wales (South Eastern Sydney Local Health District)
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W26938/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	11 August 2025
ORDERS MADE ON APPEAL:	1. The Application to receive additional evidence is refused. 2. The appeal is dismissed. 3. The Member’s Certificate of Determination dated 10 December 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – assessment of the evidence – claimed injury to the shoulders not found by the Member at first instance – finding by Member of injury to lumbar and cervical spines – section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence – claimant undergoes MRI after Member decides case at first instance – additional evidence in the form of a statement, MRI and report sought to be relied on in the appeal in relation to the shoulders – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Greene, solicitor
Carroll & O’Dea Lawyers
Respondent:
Ms K Balendra, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 685
MEMBER:	Mr P McAdam
DATE OF MEMBER’S DECISION:	10 December 2024

INTRODUCTION

The appeal is from a decision of a Member of the Personal Injury Commission dated 10 December 2024.
The appellant, Ms Anna Bulghadaryan, was employed at the Sydney Eye Hospital as a medical records officer. The Sydney Eye Hospital had physical files and records that the appellant was required to move. She claimed lump sum compensation for a 22% whole person impairment.
The issue in dispute between the parties was whether the appellant had suffered an injury to her lumbar spine and both shoulders arising out of or in the course of her employment with the respondent.
On 10 December 2024, the Commission determined that issue as follows:
“1.     I am satisfied that Ms Bulghadaryan suffered an injury to the lumbar spine arising out of or in the course of her employment with the respondent, to which employment was the main contributing factor.
2.      Award for the respondent for injury to both shoulders.
3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 7 February 2024 (deemed).
(b) Body systems/parts:
(i) cervical spine, and
(ii) lumbar spine.
(c) Method of assessment: whole person impairment.
4.      The documents to be referred to the Medical Assessor are:
(a) the Application and attached documents;
(b) the Reply and attached documents, and
(c) an Application to Admit Late Documents dated 22 November 2024 and attached documents.”
The appellant seeks to adduce additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and otherwise seeks to agitate two grounds of appeal, namely:
Ground 1 – Error of fact in relation to the diagnosis provided by Dr Bodel in his reports and what is required of an orthopaedic surgeon to arrive at the diagnosis.
Ground 2 – Error of discretion in failing to properly engage with the evidence.
For the reasons that follow I decline to receive the additional evidence, dismiss the appeal and confirm the Member’s Certificate of Determination.

THE MEMBER’S REASONS

The Member accepted the appellant’s statement dated 6 June 2024 which set out the background to her injury, including an increase in duties occasioned by staff reductions. There was brief mention made of shoulder pain developing in 2020 due to the requirement to stack large numbers of files.
He summarised the evidence of Dr Bodel, orthopaedic surgeon, who provided the assessment upon which the appellant’s claim was based. In the report of 2 February 2024, Dr Bodel described the injuries as gradual onset of neck and shoulder girdle pain; the right shoulder was worse than the left. The appellant also suffered from lower back pain. The doctor explained that the injury occurred due to the nature of the work; the intensity of heavy lifting and repetitive use of the arms, at times overhead.
On 2 September 2024 Dr Bodel reported in respect of the shoulders as follows:
“Your client has rotator cuff pathology in both shoulders and the nature and condition of the work has caused aggravation, acceleration, exacerbation, deterioration to rotator cuff disease probably in the form of tendonitis bursitis in the circumstance. Underlying pathology aggravated by work is causing pain, stiffness and loss of function as I have indicated.”
The Member said Dr Bodel rejected the connection between the cervical spine and the shoulder pathology.
The Member referred to the reports of Dr Hale, orthopaedic surgeon qualified by the respondent. In the report of 8 December 2022, Dr Hale commented upon the diagnosis provided in the Certificate of Capacity issued by general practitioner Dr Ekmejian of “neck strain and back injury”, saying that those diagnoses were reasonable and consistent with Dr Hale’s conclusions. The Member noted from Dr Hale’s report of 8 December 2022:
“The symptoms certainly appears [sic] to be due to the repetitive nature [of the work] that Anna has been required to do, particularly in an environment of an increased workload causation.”
In the report of 30 April 2024 Dr Hale diagnosed soft tissue injury to the cervical spine and low back pain with no clear correlation to employment. Dr Hale rejected any connection between employment, the lumbar pain and the condition of the shoulders. He said:
“It is reasonable to attribute the neck pain to the work-related injury in 2022 but there is no evidence of a specific shoulder pathology or lumbar condition.”
Dr Hale provided a supplementary report of 14 November 2024 in which he largely reiterated his previous opinion and expressed disagreement with the assessment by Dr Bodel.
The Member summarised the evidence of Dr Walker, a neurologist qualified by the respondent, in his two reports of 24July 2023 and 18 October 2023. The passages quoted by the Member from Dr Walker’s reports include the assertion by Dr Walker that “[t]here was no actual ‘injury’ on 8 August 2022 but rather that is the date Ms Bulghadaryan decided to choose.” And the subsequent opinion as at 18 October 2023, “[t]here was no event that caused her presentation. She says that she developed pain whilst at work but we have no way to verify that. There was no pathology found.” The Member noted that Dr Walker agreed with the diagnosis but suggested that it had nothing to do with her work.
The treating doctor, Dr Alan Nazha, pain physician, provided a report dated 2 February 2023. He supported a connection between the pain the appellant was experiencing in the lower back and the neck with work related injury.
The appellant saw Professor Aggarwal, a neurologist and rehabilitation pain medicine specialist. Professor Aggarwal diagnosed “chronic generalised neuropathic pain syndrome with central sensitisation”. The Member observed that the remainder of the Professor’s reports focused on the cervical and lower back pain.
The Member quoted from the clinical notes maintained by the general practitioner and said:
“Also before me are the clinical notes provided by Ms Bulghadaryan’s treating general practitioner. On 3 September 2022, the first attendance is recorded, relating to ‘neck pains, extending all the way down the spine’. A note on 7 September 2022 records ‘after working only two hours, gets neck pains, going down to shoulders, not to arms’. On 4 October 2022, the lumbar spine is included, where Dr Ekmejian records ‘done some job on lower back’ and refers Ms Bulghadaryan for a CT of the lumbar spine.”[1]
[1] Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 685 (reasons), [23].
After summarising the parties’ submissions, the Member expressed his findings and reasons. Under the heading “Lumbar Spine” the Member observed that the lumbar spine was only faintly disputed by the respondent.
The Member rejected Dr Walker’s opinions on the basis that his focus on a lack of specific injury misled the doctor in the conclusion he reached. The Member observed that Ms Bulghadaryan did not allege that there was a specific injurious event. She alleged a gradual onset condition, being a disease or aggravation of a disease type case. There is no specific incident to report as the duties of her employment, over a period of time, caused her injury (as she claims).[2]
[2] Reasons, [45].
Further, the Member observed in relation to Dr Walker:
“I would also note that Dr Walker has dismissed the [appellant] on the basis of what he describes as a ‘clerical job’. It is accepted that in general terms that the role Ms Bulghadaryan occupied was clerical in nature. However, describing it in the almost dismissive terms, as Dr Walker has done, belies the actual nature of the work, which is undisputed. Ms Bulghadaryan’s statement explains this best, and it involved moving large amounts of physical files in boxes. This is not typical ‘clerical’ work or the type of work all the doctors would be familiar with in record keeping for a modern hospital. This is physical work, in an antiquated system, that over time got heavier and heavier due to departures and resourcing issues.”[3]
[3] Reasons, [46].
Dr Walker’s opinion was rejected because he had not properly considered the actual duties performed by the appellant and his conclusion was based on an incorrect history. Furthermore, he had misunderstood the nature of injury as defined in the Workers Compensation Act 1987, as opposed to the generally understood definition of injury being a specific incident or blow.[4]
[4] Reasons, [47].
The contest as the Member saw it was between Drs Bodel and Hale, observing that Dr Hale’s rejection of the injury was not particularly forceful. The Member observed, referring to Dr Hale, “[h]e supports her claim at least symptomatically, if not on the basis of a strong causal chain. He suggests there is no clear lumbar condition or pathology, but that is not explained and is inconsistent with the history he takes from Ms Bulghadaryan of low back pain.”[5]
[5] Reasons, [48].
The Member quotes from Dr Bodel observing that he takes a full history of the nature of the appellant’s duties and the work she performed. Dr Bodel records the increase in filings in conjunction with the loss of staff. The Member quotes Dr Bodel’s opinion in disagreement with Dr Hale as follows:
“This history of this lady’s injury is quite specific. She has had a very heavy work load which increased dramatically over a period of years. I believe that is causative to the pathology of the neck, back and shoulders by way of aggravation, acceleration, exacerbation, and deterioration to underlying disease processes. I acknowledge that the investigations show minimal changes and not much more than one would expect for a person of this age but I am still satisfied that the nature of the work based on the history that I have been given as to the work and the difficulty associated with it particularly after an almost doubling of the workload and one third of the workforce was not replaced.”[6]
[6] Reasons, [50].
The Member said:
“I am satisfied that Dr Bodel has taken a full history of duties performed and reached an appropriate conclusion considering the history and material before him. I give more weight to his opinion [than to] those proffered by the respondent for that reason.
I accept the respondent’s submission that I should treat Ms Bulghadaryan’s statement with caution. I have done so and agree that there is a degree of inconsistent [sic] in how she initially reports the onset of pain in her back with that recorded in the clinical notes. I do not think that undermines Ms Bulghadaryan’s case so significantly as to make it unacceptable. It may be that she experienced some minor pains in 2017 or so that were manageable.”[7]
[7] Reasons, [51]–[52].
The Member said there was support for the appellant’s lumbar spine claim in the reports of the treating specialist Dr Nazha. Professor Aggarwal does not disagree with the appellant’s subjective conclusion that the work involved in the records department resulted in the symptoms. Further, the Member referred to the general practitioner’s notes as supporting the claim.
On the issue of injury to the lumbar spine the Member concluded:
“For the above reasons, I am satisfied that Ms Bulghadaryan suffered an injury to her lumbar spine in the course of her employment with the respondent, to which employment was the main contributing factor. The lumbar spine will be referred for an assessment of whole person impairment.”[8]
[8] Reasons, [59].
That finding in favour of the appellant concerning the lumbar spine is not challenged.
Dealing with the left and right shoulders, the Member said:
“The [appellant’s] case for injury in the shoulders is significantly less convincing than in the lumbar spine. She has the onus to prove her case, and although the standard of proof is on the balance of probabilities, it is still her onus to prove.”[9]
[9] Reasons, [61].
The Member quotes from part of the appellant’s statement at paragraph [14] which he said contained a sparse reference to her shoulder problems.[10]
[10] Reasons, [62].
The general practitioner’s note of 3 September 2022 does not refer to problems in the shoulder. The entry of 7 September 2022 includes a clinical note:
“… very heavy duties
after working only two hours, gets neck pains, going down to shoulders, not to arms
better on weekends when she is not working.”
In the clinical notes it was unclear whether the reference to pain in the shoulders was coming from the neck or arose from pathology in that part of the body.[11]
[11] Reasons, [64].
Dr Bodel was the only specialist who supported the claim with respect to the shoulders.
The Member quoted the passage from Dr Bodel’s report of 2 September 2024 set out above. Dr Bodel did not regard the bilateral shoulder pain as having its origin in the cervical spine pathology.
The treating specialists did not refer “particularly” to any problems in the shoulders. The Member said that Dr Nazha recorded:
“‘Intermittently, she states there is pain that radiates interscapularly’ (the scapula being the shoulder blade). That would support a conclusion that the pain is radiating from the neck, rather than being distinct pathology in the shoulder.”[12]
[12] Reasons, [67].
The Member says:
“Dr Hale’s opinion in respect of the shoulders is similar to his opinion in the lumbar spine; that is a lack of shoulder pathology. In respect of the shoulders, this is much more persuasive. There are no specific investigations undertaken in respect of the shoulders. There is no particular pathology identified in any of the treating material, other than some referred pain. Dr Bodel describes rotator cuff pathology but does not say what that pathology is.
He opines that there has been a deterioration of ‘rotator cuff disease probably in the form of tendonitis bursitis’ but that is an inconclusive ‘probably’ diagnosis and is made without reference to any treatment, investigations or firm diagnosis in the shoulders.
In the absence of any treating material supporting a finding, and where Dr Bodel has reached his conclusion in a bare way without real explanation as to his diagnosis, I am not satisfied that Ms Bulghadaryan has suffered an injury to either shoulder, on the balance of probabilities.”

PROCEDURAL MATTERS

TIME

The respondent does not dispute that the appeal was filed within time.

THRESHOLD ISSUE

The respondent does not dispute that the appeal satisfies s 352(3) of the 1998 Act as to the amount of compensation at issue, being at least $5,000 and at least 20% of the amount awarded.

INTERLOCUTORY DECISION

The decision is not an interlocutory decision.

ON THE PAPERS

The parties have submitted that the appeal can be determined on the papers.
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act), together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.

NATURE OF THE APPEAL

The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In State of New South Wales v Culhana[13] the Court of Appeal constituted by five members delivered important guidance as to the appellate jurisdiction which I exercise. The leading judgment was delivered by Leeming JA (with whom Kirk and McHugh JJA agreed, with short agreeing judgments from Bell CJ and Free JA).
[13] [2025] NSWCA 157 (Culhana).
His Honour said at [91]:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential Member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
The kind of matters identified in Lee v Lee[14] are in summary:
“factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.”[15]
[14] [2019] HCA 28; 266 CLR 129 (Lee).
[15] Culhana, [62], quoting Lee, [55].
In the present matter the Member determined the appellant’s claim on the basis of the written evidence. His findings of fact did not depend on impressions about credibility or reliability of the witnesses in so far as he neither saw nor heard them.

FURTHER EVIDENCE

Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The additional evidence the appellant wishes to rely upon is:
(a) a statement of the appellant dated 7 January 2025, and
(b) an MRI of both shoulders and report dated 20 December 2024.

It is convenient to deal with the application to rely on additional evidence immediately.
The additional evidence is received on the application for leave to rely on the material but for the reasons that follow not otherwise.
The appellant’s statement provides relevantly:
“4. On 12 December 2024, my solicitors at Carroll & O’Dea Lawyers sent me a copy of the Certificate of Determination of Member McAdam dated 10 December 2024. Following review of the decision where the Member was of the opinion that I didn’t suffer injuries to both or either shoulder, I wanted to get clarification as to why I was experiencing pain in my shoulders.
5. On 12 December 2024, I attended a consultation with my GP Dr Raffi Sahajian. As I had done since seeing Dr Sahajian since August 2024, previously seeing Dr Ekmejian, I had confirmed that I had been experiencing pain in both my shoulders due to increase in my work tasks with the Sydney Eye Hospital. Dr Sahajian asked why I had not undergone an MRI, which I told him because none of my treating doctors including Dr Ekmejian recommended I undergo an MRI of the shoulders.”
On 19 December 2024 the appellant underwent an MRI of both shoulders.
The MRI report is the second piece of additional evidence that the appellant wishes to rely upon. The conclusion from the report is as follows:
“Bilateral mild tendinosis diffusely of the supraspinatus extending into the anterior aspects of the infraspinatus without rotator cuff tendon tears.
There is mild to moderate right and minimal left sided subacromial-subdeltoid bursitis.
Early right AC joint degenerative change.”

Appellant’s submissions on the additional evidence

The appellant submits that the MRI scan of both shoulders was not available prior to the hearing on 28 November 2024 and could not reasonably have been obtained by her “without referral from a treating doctor, which did not occur until our client received that referral from Dr Sahajian.”
It is further submitted that a failure to grant leave would cause substantial injustice in the case as the reasoning for Member McAdam’s finding was a lack of treating material supporting Dr Bodel’s findings in relation to the shoulders. This, it is submitted, is apparent from the Member’s observation that “[i]t is unclear whether it is pain coming down from the neck or pain in the shoulders arising from pathology in that body part.”
The appellant cites Northern New South Wales Local Health Network v Heggie.[16]
[16] [2013] NSWCA 255; 12 DDCR 95.

Respondent’s submission in opposition to receipt of the additional evidence

The respondent submits:
“Clearly the Appellant chose to obtain the MRI in an attempt to obtain further evidence after reading the decision, which should have been obtained prior to commencing proceedings. This is evidence that could have, and should have, been reasonably obtained prior to the commencement of the claim in relation to both shoulders. On that basis leave should not be granted.”[17] (emphasis in the original)
[17] Respondent’s submissions, [6].
The respondent cites the decision of Candy ADP in Paramount Global Protection Pty Limited v Gorge[18] to the effect that the original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.
[18] [2008] NSWWCCPD 127 (Gorge).
The respondent submits furthermore that no substantial injustice would be caused to the appellant if leave were not granted.
It says:
“The Appellant’s provision of an MRI at this stage, some two years after leaving her employment, does not deal with the findings at [67] of the [reasons] that ‘none of the treating specialists refer particularly to any problems in the shoulders’. That the Appellant believes herself to have shoulder pain now, does not resile from the fact that her treating doctors did not take note of issues in relation to her shoulders whilst treating her for work related injuries, contemporaneous to when she claims the injury arose.
As such there would be no substantial injustice in the case if leave were not granted. Indeed, if leave were granted, there would be a substantial injustice to the Respondent. The Respondent has had no opportunity to investigate or obtain an opinion on evidence from a suitably qualified specialist in response to evidence which should have been provided at the time the Appellant made the claim.”[19]
[19] Respondent’s submissions, [10]–[11].

The appellant’s further submissions in reply

The appellant, referring to her statement, says:
“When one examines paragraph [4] of the statement, it is clear that the sole reason prompting further enquiry by the appellant was the learned Member’s decision … Reasonableness has to take into account the circumstances of the person who is required to act reasonably. That is the appellant worker in this instance.”[20]
[20] Appellant’s submissions in reply, [3].
The appellant submits that it was not open to her to “ponder the adequacy” of the investigations made by her medical practitioners who generated the clinical notes. She submits:
“Clearly the substantive new material sought to be relied upon is important. That which is revealed in the MRI renders the decision under appeal unsafe, and certainly discloses factual error (which is appealable pursuant to s 352(5)) as it is axiomatic that the Member had determined the factual matrix of the case in vacuo.”
Gorge, she submits, does not stand in the way of the Commission receiving material for the first time after the Member’s decision. The appellant submits that she did not merely await the determination and then search for more evidence. Rather she was taken by surprise at what the Member held and responded swiftly accordingly. “There was no element of strategy, as is perhaps implied by [the respondent], in waiting for the determination, and then seeking a de novo hearing with the benefit of the Member’s reasons.”[21]
[21] Appellant’s submissions in reply, [6].
The appellant alludes to the website “healthdirect”. This material is addressed within the context of Ground 1 of the appeal, and for the reasons provided in that section, it cannot be relied upon.
The complaint that the respondent will not have an opportunity to investigate is challenged by the appellant on the basis that if there is a remitter, both parties can require their respective independent experts interrogate the significance of the MRI in its temporal context.

Consideration

Section 56(1) of the 2020 Act provides as follows:
“Except as otherwise provided by this Act or enabling legislation, a decision of the Commission under the Workers Compensation Acts or in relation to the police officer support scheme is final and binding on the parties and is not subject to appeal or review.”
The 2020 Act provides for reconsideration in s 57 and the 1998 Act provides in s 352(6) for additional evidence being received on appeal, but otherwise matters before the Commission are determined on the basis of the evidence adduced by the parties in the hearing before the Member.
In CHEP Australia Limited v Strickland[22] Barrett JA (agreed to by Macfarlan JA and Basten JA who wrote separately) said:
“In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”[23]
[22] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[23] Strickland, [27].
Section 352(6) provides so far as the first limb is concerned that the material “could not reasonably have been obtained by” the appellant.
The appellant, as is demonstrated by her statement, obtained the MRI in response to the determination of the Member that there was no investigative material to corroborate Dr Bodel’s conclusion that there was pathology in the shoulders. Whilst it may be moot as to the appropriateness of an MRI scan for medicolegal purposes, the reality is that the MRI was generated because of the Member’s decision of 10 December 2024.
Plainly the evidence could have been obtained before the hearing. There is no reason why the referral for an MRI could not reasonably have been obtained before the hearing. Before the hearing it must have been apparent to the appellant the opinion of Dr Bodel was vulnerable to being rejected because it was poorly supported by the other evidence in the form of the records of the treating doctors; and was contradicted by Drs Hale and Walker’s evidence. The requirement that Dr Bodel’s opinion needed to be bolstered by further evidence was obvious. An MRI could reasonably have been obtained before the hearing.
The appellant submits that the failure to grant leave would cause substantial injustice in the case. For the reasons that follow I reject this submission.
Firstly, it is not disputed by either Dr Bodel or Dr Hale that there is likely to be pathology in the appellant’s shoulders. The radiology merely delineates the pathology described by Dr Bodel, it does not add to the question of causation.
Secondly, absent expert medical evidence I am not able to interpret the radiology. In other words, the clinical significance of the radiologist’s report requires interpretation by a medical expert. It is not open to me without such assistance to draw conclusions from the radiological report.
Thirdly, plainly the respondent is correct in its submission that it would be severely prejudiced by the inability to investigate and obtain evidence in response to the additional evidence. The submission by the appellant that a remittal to a fresh hearing will enable additional evidence to be obtained is not satisfactory.
Fourthly, the radiology is two years after the event. It does not speak at the time of the appellant’s treatment or of the state of the appellant’s shoulders at the time of the hearing before the Member. In other words, the radiology speaks of the condition of the appellant’s shoulders at the date the images were taken. The Member’s concern was the condition of the appellant’s shoulders at the time of the hearing.
Fifthly, in Strickland Barrett JA said this:
“That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[24]
[24] Strickland, [31].
As I observe, the radiology merely corroborates Dr Bodel’s opinion as to the pathology which he diagnosed. It does not overcome the other matters referred to by the Member, in particular the absence of a clinical note in the treating material supporting a finding. Furthermore, the opinion of Dr Hale was to the contrary of that of Dr Bodel. His opinion was that there was a lack of shoulder pathology.
For those reasons I decline to grant leave to receive the additional evidence.

DISCUSSION

Ground 1 – Error of fact in relation to the diagnosis provided by Dr Bodel in his reports and what is required of an orthopaedic surgeon to arrive at the diagnosis

Appellant’s submissions

The appellant refers to the Member’s reasons, paragraphs [60], [70] and [71]. She says of paragraph [70] that the Member misconstrued the diagnosis of Dr Bodel in his report. The appellant submits that Dr Bodel in his supplementary report provided a diagnosis of rotator cuff disease and that this diagnosis was arrived at from a review of the appellant’s symptoms, history provided to the doctor, details of work duties and physical examination. Dr Bodel, based on his examination and experience, concluded the disease is “probably in the form of tendonitis bursitis in the circumstance”. The appellant submits that the Member was in error and misconstrued the firm diagnosis presented by Dr Bodel of rotator cuff disease.
The appellant submits that the conclusion at paragraph [71] was in error because Dr Bodel in his reports of 2 February 2024 and 2 September 2024 went into considerable depth in relation to the appellant’s work history, the increased nature of her duties and the gradual onset of neck and bilateral shoulder pain.
The appellant submits that in relation to paragraphs [69] and [70] of the reasons, the Member placed considerable emphasis on the need for investigations in order to determine rotator cuff pathology.
But the appellant submits the Australian website “healthdirect.gov.au” makes clear that rotator cuff injury may be diagnosed without further tests.[25] The majority of rotator cuff injuries or diseases are diagnosed based solely on examination where the doctor enquires about the injured person’s symptoms, history (including work history in these circumstances) and physical examination of the shoulder.
[25] Appellant’s submissions, [20]–[21].
The appellant submits Dr Bodel’s reports appropriately reviewed the appellant’s treatment history, including her records, her work history, the nature of her work duties as provided on examination and in her statement dated 6 June 2024 and together with the physical examination of the appellant, before arriving at a diagnosis of rotator cuff pathology in both shoulders. He found the nature and conditions of employment had caused aggravation, acceleration, exacerbation, deterioration to rotator cuff disease probably in the form of tendonitis bursitis in the circumstances. The underlying pathology aggravated by work is causing pain, stiffness and loss of function.

Respondent’s submissions

The respondent submits that whilst Dr Bodel did express in his later report the opinion “rotator cuff pathology … probably in the form of tendonitis bursitis”, this does not support the appellant’s submission that Dr Bodel’s diagnosis is firm, and his diagnosis of rotator cuff pathology is based on a supposition of probable tendonitis bursitis.
The respondent submits that the expression of opinion from Dr Bodel of what the appellant ‘probably had’ rather than what she did have is not sufficient to satisfy the appellant’s onus of proof and does no more than suggest a possible causal relationship. The Member was correct to reject it. The respondent cites Luxton v Vines[26] and Seltsam Pty Limited v McGuiness.[27] (The respondent does not provide a pinpoint reference to either citation.)
[26] [1952] HCA 19.
[27] [2000] NSWCA 29.
To the appellant’s submission that Dr Bodel goes into particular depth in relation to the appellant’s work history, the gradual onset of pain and his physical examination, the respondent says these matters do not address the issues raised by the Member, namely, that there is no reference to treatment, investigations or firm diagnosis. As to the actual conclusion he gave, the doctor’s path of reasoning is not disclosed and a clear injury not explained. The Member carried out the task as he was required to do, by engaging with the report of Dr Bodel and providing more than sufficient reasons for why he rejected it. There was no error in that approach.
The appellant is required to show error on the Member’s part, not that “other reasonable minds may differ on whether they might have made a finding about causation being made out”.[28] The appellant has failed to do that.
[28] Respondent’s submissions, [7].
The respondent submits that the appellant’s reliance on the healthdirect documentation is misplaced. The appellant’s reliance on healthdirect extracts is opposed and is not a proper basis upon which to form any conclusion regarding diagnosis. The author of the extract is not identified nor are the author’s qualifications to make the statements in the extract. The respondent submits it cannot be given any weight, especially where expert medical opinion has been served in the matter by specialists such as Dr Bodel and Dr Hale. The respondent submits the extract contravenes r 73 of the Personal Injury Commission Rules 2021 and should not be admitted or, if admitted should be given minimal or no weight.

Appellant’s submissions in reply

The appellant submits that Dr Bodel’s use of the word “probably” is the equivalent of the civil standard of proof, namely, on the balance of probabilities.

Consideration

The Member was required to determine whether the appellant had sustained an injury to the shoulders as she claimed. That task did not depend on his understanding of the process of diagnosis. He was required to determine the issue on the basis of the evidence before him.
It follows that the appellant’s reliance on the healthdirect.gov.au website is, with respect, misplaced largely for the reasons given by the respondent. The item is presumably adduced as expert evidence as to what is necessary or not necessary to make a diagnosis of rotator cuff injury. However, expert evidence as to how Drs Hale and Bodel arrived at their diagnostic opinions is, with respect, irrelevant even if the material were admissible, which it is not.
The appellant does not engage with the Member’s basis for rejecting Dr Bodel’s opinion with respect to the shoulders. The Member says that Dr Bodel’s expression of opinion in relation to the rotator cuff disease as “probably in the form of tendonitis bursitis” is an “inconclusive ‘probably’ diagnosis” (my emphasis).[29] The Member’s conclusion is supported by the additional matters he refers to, namely that the diagnosis is made without reference to any treatment, investigations and “[i]n the absence of any treating material supporting a finding”.[30] The diagnostic opinion is tentatively expressed.
[29] Reasons, [70].
[30] Reasons, [71].
The appellant does not challenge the Member’s conclusion that there was an absence of any treating material supporting a finding in accordance with Dr Bodel’s tentative “inconclusive” diagnosis.
Furthermore, the appellant’s submission that the Member failed to properly engage with Dr Hale’s opinion is, with respect, not established. Dr Hale, in his report of 30 April 2024, records that the appellant reported ongoing neck pain which radiates to both shoulders particularly the right side. He then offers the opinion:
“Anna continues to describe persistent symptoms affecting her cervical spine and subsequently the lumbar spine which initially developed as an overuse injury related to her employment.
The level of the symptoms is unexpected due to the fact that she has been away from the workplace for a considerable period.
Some of the symptoms raise the possibility of migraines and it is difficult to explain all of the clinical findings including the widespread tremor as well as her low back pain.”[31]
[31] Reply to Application to Resolve a Dispute (reply), p 69.
He diagnoses soft tissue injury cervical spine, low back pain with no clear correlation to her employment.
When asked a specific question:
“(f) Do you consider the claimant’s current diagnosis at the neck, lumbar spine and shoulders has been caused by the initial complaint of injury in 2022? (please confirm reasons why/why not).”
He answers:
“It is reasonable to attribute the neck pain to the work-related injury in 2022 but there is no evidence of a specific shoulder pathology or lumbar condition.”
Later the doctor answers:
“There is no clear explanation as to why her shoulders, lumbar spine are affected as a result of the amount of the initial work-related injury.”[32]
[32] Reply, p 70.
And still later:
“As well as this, in view of the atypical examination and tremor with all shoulder movements, in my opinion there is no clear evidence of shoulder pathology.”[33]
[33] Reply, p 72.
The Member said:
“None of the treating specialists refer particularly to any problems in the shoulders. Dr Nazha, at the highest, provides that ‘Intermittently, she states there is pain that radiates down interscapularly’ (the scapula being the shoulder blade). That would support a conclusion that the pain is radiating from the neck, rather than being distinct pathology in the shoulder.”[34]
[34] Reasons, [67].

The Member preferred the opinion of Dr Hale, supported as it was by the records of the treating specialists, to the opinion of Dr Bodel.
Dr Hale’s conclusion that there was a reduced range of motion of the shoulders does not conflict with his conclusion that the disability in the shoulder is unrelated to any injury in the course of employment.
It is not a case of the Member failing to engage with the opinion of Dr Hale, rather the Member accepted Dr Hale’s opinion as to causation in preference to that of Dr Bodel.
The appellant has failed to establish that the Member was in error in his conclusion that the appellant had not suffered injury to the shoulders. Ground 1 of the appeal is dismissed.

Ground 2 – Error of discretion in failing to properly engage with the evidence

Appellant’s submissions

The appellant submits that the Member did not properly engage with or scrutinise the reports of Dr Hale as evidenced by the only reference to Dr Hale’s opinion in relation to the shoulders being at paragraph [69] of the reasons.
The appellant accepts that Dr Hale provides an opinion in his report dated 30 April 2024 but that that opinion conflicted with different sections of his own report.
The appellant makes the following submission:
“Understanding full well that Dr Hale does not believe there is a bilateral shoulder pathology, the assessment would appear to indicate that there is a ‘pre-existing condition’ in both shoulders, hence the deduction. In the Appellant’s view, this appears to be more in line with the opinion of Dr Bodel being ‘underlying pathology aggravated by work is causing pain, stiffness and loss of function as I have indicated.’”[35]
[35] Appellant’s submissions, [27].
The appellant submits that the Member fell into error “by not scrutinising the opinion of Dr Hale, particularly in circumstances where it would appear that there is an acceptance of a ‘pre-existing condition’, which the Appellant argues by way of Dr Bodel’s report was aggravated by the nature and conditions of her employment, with the nature of said physical duties not being in dispute.”[36]
[36] Appellant’s submissions, [28].
The appellant then seeks to rely upon the additional evidence which I have rejected.

Respondent’s submissions

The respondent submits that the appellant relies upon what she says is a difference in the degree of scrutiny that the Member gives to the report of Dr Bodel as opposed to Dr Hale for this ground of appeal.
The respondent submits:
“… the Appellant at [27] of her submissions creates an opinion in Dr Hale’s report that is not actually expressed. In particular the Appellant suggests that Dr Hale’s assessments of the shoulder, despite a determination that issues with the shoulder are not work related, would ‘appear to indicate that there is a ‘pre-existing condition’ in both shoulders’. However, Dr Hale does not state that there is a pre-existing condition in the shoulder. Dr Hale simply assesses a non-work related impairment in both shoulders. Given the length of time that elapsed between the date of injury and the date of Dr Hale’s report, and the lack of history of complaint in relation to both shoulders, it is unsurprising that Dr Hale did not determine that there was a ‘pre-existing condition’ in both shoulders.”[37]
[37] Respondent’s submissions, [10].

Appellant’s submissions in reply

The appellant reasserts in reply the submission that the Member did not engage sufficiently with the evidence of Dr Hale. The appellant submits that:
“Dr Hale identified pathology in the shoulders, and rated same, then excluded them from his overall rating. The problem with that approach (which is self-evident) was noted by Dr Bodel at ARD 33. The strong implication is that Dr Hale either did support causation or, if he did not, his reasoning was so deficient that it was factually erroneous for the Member not to do so.”[38]
[38] Appellant’s submissions in reply, [10].

Consideration

I have to a large extent dealt with this in the context of the consideration of Ground 1 of the appeal.
Dr Hale provided a report dated 14 November 2024 in which he addressed the disagreement with Dr Bodel. He said:
“It should be noted that on page 2 of Dr Bodel’s supplementary report, dated 02/09/2024, he indicated the following: ‘He assessed a 7% whole person impairment for the lumbar spine only, 0% whole person impairment for the neck.’
My assessment was the reverse, i.e. 7% whole person impairment for the cervical spine and 0% for the lumbar spine. At the time of my examination, I did identify reduced bilateral shoulder movements but attributed this to neck pain rather than shoulder pathology. Irrespective of this fact, I did calculate the potential impairment of both shoulders but noted that I did not think that this was associated with any significant shoulder pathology.”[39]
[39] Respondent’s Application to Admit Late Documents dated 22 November 2024, p 2.
Dr Hale then confirmed his previous opinion “that Anna has sustained a soft tissue injury to her cervical spine as a consequence of the described work-related injury. There is no evidence of specific shoulder injury. She does experience low back pain, but there is no clear correlation with her employment.”
Later the doctor says:
“For the reasons described above, it is considered that her employment is a substantial contributing factor to her neck injury, but not to the lumbar spine or bilateral shoulders.”
It is significant that the Member found support for Dr Bodel’s opinion in relation to the lumbar spine in the treating evidence.[40] He found no support in the treating material for Dr Bodel’s opinion with respect to the bilateral shoulder complaint.[41] For that reason he was persuaded that the opinion of Dr Hale should be preferred because Dr Hale, as with the treating doctors, could find no pathological explanation for the appellant’s shoulder symptoms.
[40] Reasons, [68].
[41] Reasons, [71].
It is difficult not to see Ground 2 of the appeal as being no more than dissatisfaction with the Member’s conclusion that he should prefer the evidence of Dr Hale on the question of the bilateral shoulder complaint to that of Dr Bodel. His expressed reason for doing so was the absence of reference in the treating material to problems with the shoulders. It was the presence of such material that persuaded the Member to adopt Dr Bodel’s view with respect to the lumbar spine in preference to that of Dr Hale. There is no error on his part in applying the same logic to his acceptance of Dr Hale’s opinion with respect to the shoulder complaint.
Contrary to the appellant’s submission that the Member failed to adequately engage with Dr Hale’s evidence, the Member applied a consistent logic to the evidence of both Dr Bodel and Dr Hale, a logic which led him to find for the appellant with respect to the injury to the lumbar spine and against her with respect to the alleged bilateral shoulder injuries.
There was no error in the Member’s approach. Ground 2 of the appeal is dismissed.

CONCLUSION

The Application pursuant to s 352(6) for leave to receive additional evidence is refused.
The appeal is dismissed.
The Member’s Certificate of Determination dated 10 December 2024 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

11 August 2025