Busways Group Pty Ltd v Chandi
[2024] NSWPICPD 52
•21 August 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Busways Group Pty Ltd v Chandi [2024] NSWPICPD 52 |
APPELLANT: | Busways Group Pty Ltd |
RESPONDENT: | Reji Chandi |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W467/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 21 August 2024 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 16 August 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – alleged failure to give adequate reasons – Wang v State of New South Wales [2019] NSWCA 263; Musija v Kresa [2010] VSCA 163 applied – alleged failure to deal with submissions – Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 applied – requirement to show error in factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Grimes, counsel | |
| Hall & Wilcox Lawyers | |
| Respondent: | |
| Mr J Malouf, counsel | |
| Law Partners Personal Injury Lawyers | |
DECISION UNDER APPEAL: | Chandi v Busways Group Pty Ltd [2023] NSWPIC 417 |
MEMBER: | Ms J Snell |
DATE OF MEMBER’S DECISION: | 16 August 2023 |
INTRODUCTION AND BACKGROUND
Mr Reji Chandi (the respondent) was employed by Busways Group Pty Ltd (the appellant) as a bus driver. The respondent alleged that on 11 February 2019, while steering a tight steering wheel of a bus to the left, he experienced a click and felt immediate pain in his left shoulder and neck. He further alleged that, as a consequence of the left shoulder injury, he overused his right shoulder, and the overuse caused that shoulder to also became symptomatic.
The claim in respect of the allegation of injury to the left shoulder was accepted by the appellant. The appellant disputed, however, that the respondent suffered injury to the neck and that the right shoulder condition resulted from the left shoulder injury. The appellant further disputed that the respondent suffered any incapacity for work as a result of injury with the appellant and disputed whether the respondent had any entitlement to weekly compensation.
The respondent commenced proceedings and the dispute came to arbitration before a Member of the Personal Injury Commission (the Commission) on 24 April 2023. The arbitration hearing was not concluded on the day and the parties were directed to lodge written submissions.
The Member issued a Certificate of Determination on 16 August 2023 in which she found in favour of the respondent in respect of the injury to the neck and the consequential condition in the right shoulder, found that the respondent had no capacity for work, and determined that the respondent was entitled to weekly payments of compensation pursuant to s 38(2) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant appeals the decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties agreed that the appeal can be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
The respondent’s statements
The respondent provided a statement dated 26 June 2019.[1] He advised that he commenced employment with the appellant in July 2016 as a bus driver stationed at the Penrith depot. He said his ordinary hours of work were 40 hours per week, 8 hours per day from Monday to Sunday. He said that sometimes he worked a “split shift” of four hours, followed by a break of two to four hours and then a further four hours of work.
[1] Application to Resolve a Dispute (ARD), pp 1–8.
The respondent described his employment history. He said that he finished high school in 1987 at year 10 level in India, and then completed a Diploma in Hotel Management. He stated that he thereafter worked as a waiter in India, moved to Dubai in 1995 where he worked as a waiter for nine years, then as a supervisor, before moving to England. The respondent said that he commenced work as a food and beverage supervisor at the Hilton Hotel in 2004 and then moved to Australia in 2012. He advised that he worked as a taxi driver, a bus driver, a storekeeper, and a storeman and hotel purchaser in Darwin before moving to Sydney in 2015. He said that he initially worked as a bus driver for State Transit before commencing with the appellant in 2016.
The respondent provided details of his past health and treatment providers.
The respondent stated that he was rostered to work a split shift on 11 February 2019, working from 6.30 am to 10.30 am and then from 2 pm to 6 pm. He said that, at about 4 pm that day when he was heading back to the depot, he was turning the bus to the left when he felt a sharp pain in his left shoulder, which shot down his left arm and his left arm felt immobilised. He said that when he arrived at the depot he rested for about ten minutes and then resumed his duties, although he was experiencing constant pain. He indicated that there was no-one at the depot to report the incident to, but he contacted head office that evening to advise them he would not be able to work the following day.
The respondent advised that on the following day he consulted Dr Steve Cheong of the Southlands Medical Centre, who certified that he was unfit for work. The respondent said that he was off work for about a week, returned to alternate duties until 2 March 2019, then worked until 12 April 2019 as a driver for four hours followed by alternate duties for four hours per day.
The respondent indicated that he returned to visit his mother in India on 13 April 2019, where he attended a doctor in respect of swelling and pain in his left shoulder. The respondent said that he returned to Australia on 28 April 2019.
The respondent said that he again consulted Dr Cheong because his symptoms were worse than they had been, and Dr Cheong certified him as being fit for suitable duties. He said that he was allocated duties recording the arrival and departure times of the buses.
The respondent stated that on 19 June 2019, he was again turning a bus to the left at the end of his shift when he felt a sharp stabbing pain in his shoulder and down his left arm, which was the same feeling as that he had experienced previously. He said that there was no-one at the depot to report the injury to, but he was in such pain that at about 11.45 pm he contacted the Head Office and advised he would not be able to work the following day. He indicated that he again attended Dr Cheong, who certified him as having no capacity for work for a period of one week, and he also consulted a physiotherapist.
The respondent provided an additional statement on 9 August 2022.[2] He explained that when he made the earlier statement, he was in constant and significant pain in his left shoulder and neck, and the pain was developing in his right shoulder as well. He explained that the interviewer had only asked him questions relating to the left shoulder, so he did not think to mention the neck symptoms.
[2] ARD, pp 9–19.
The respondent asserted that he had no prior physical or medical problems that would impact his ability to work. He described his duties. He said that on 11 February 2019, he injured his left shoulder and neck and while undertaking the rehabilitation process, he developed symptoms in the right shoulder. He advised that on 18 February 2019, he commenced attending Mr Christopher Han for physiotherapy for his left shoulder pain and neck stiffness, however, the treatment did not offer him any real relief from his symptoms.
The respondent stated that after the further incident on or about 19 June 2019 he commenced physiotherapy treatment with Mr Georges Semaan, who provided massage and home exercise which, after multiple sessions, was also of little benefit. He said that he consulted Dr Saadia Sabir, general practitioner, who considered him to be fit for work performing suitable duties, organised an MRI scan of the left shoulder and neck, and referred him to Dr Warren Kuo, orthopaedic surgeon.
The respondent indicated that, during mid to late 2019, he returned to modified duties, checking the timing of bus arrivals and departures. He said he was required to sit in the cold and rain in uncomfortable surrounds without shelter, which worsened his left shoulder and neck pain.
The respondent reported that he underwent an MRI scan of his neck on 6 September 2019 that disclosed a benign tumour and disc “elevation” in his neck. He added that he underwent an MRI scan of his left shoulder on 4 October 2019, which revealed a large tear in his rotator cuff and inflammation.
The respondent advised that he consulted Dr Kuo on about 21 October 2019, who reviewed the MRI scans and recommended cortisone injections into his left shoulder. The respondent said the injections were administered on 26 November 2019 but were of no lasting benefit. He said that Dr Kuo proposed surgery in the form of a left shoulder arthroscopy, rotator cuff repair and biceps repair, and it was carried out on 19 February 2020.
The respondent stated that he underwent physiotherapy for three months at the hands of Mr Semaan, which was intended to improve his range of movement but was of no benefit. He said that Dr Kuo recommended further cortisone injections, but the injections offered no relief of his symptoms, so on 10 September 2020, Dr Kuo performed further surgery to the left shoulder consisting of manipulation under anaesthetic and an injection. The respondent stated that he was in constant pain after surgery and he could not lift anything with his left arm, so he underwent a further course of physiotherapy that was again of limited benefit. He added that he was having difficulty sleeping because of the pain and began to experience stiffness and aching in the right shoulder.
The respondent explained that, with his left arm difficulties, he was relying more heavily on his right arm to perform basic tasks such as steering the car or bathing himself. He said that he had constant pain and stiffness in both shoulders and his neck.
The respondent said that Dr Kuo arranged for an MRI scan of the neck to be performed and referred him to a spinal specialist, Dr Bhisham Singh, for further review. He said that Dr Singh recommended injections into the neck or surgery, however, both of those procedures carried a risk of paralysis, so the respondent declined those options.
The respondent indicated that in May 2021, he was working as a cleaner, and those duties made his right shoulder pain worse, which caused him to take a number of days off work. He reported that he also had difficulties such as doing up his shoelaces or with household tasks.
The respondent stated that because he was no longer able to work as a bus driver and needed to help support his family, in October 2021 he commenced work as a cleaner and doing administrative tasks for a cleaning business operated by his friend, Mr Joseph George. The respondent reported that he had difficulty with pain in his shoulder and neck when sitting for a prolonged period at a desk and typing, so Joseph told him he would be required to undertake cleaning work. The respondent said that the role put less strain on his shoulders and neck, but he would feel worsening pain by the end of the shift.
The respondent added that in November 2021, he was working as a cleaner when his left foot gave way and he fell, injuring his ankles and causing immediate pain as well as putting more strain on his shoulders and neck. He also added that throughout 2021 and 2022, he was relying more heavily on his right arm for most tasks, and he noticed increased pain in the right shoulder.
The respondent stated that because of increasing pain in the right arm, he consulted Dr Kalyan Biswas of the Medical and Fitness Centre. The respondent described his ongoing difficulties of significant pain in both shoulders and neck and inability to perform domestic tasks and activities of daily living.
The respondent provided a further statement dated 24 November 2022.[3] The statement provided details of the respondent’s post-injury employment and business involvement.
[3] ARD, pp 20–27.
The respondent provided a further statement dated 17 March 2023.[4] He confirmed his earlier statements and said that because the appellant had requested a copy of his passport, he should explain the reason he returned to India for the period between 3 November 2022 and 30 November 2022. He said that his mother, to whom he was very close, passed away on 7 November 2021 but he was unable to attend the funeral because of the COVID-19 restrictions and the whole cultural mourning process was delayed. He said that the period in late 2022 was the only period during which the whole family could be present to attend the three cultural rituals. He stated that he attended the first two rituals but was unable to attend the third. He confirmed that he did not travel to any other parts of India in the time he was there. He indicated that he continued to experience significant pain in his neck and both shoulders for the entire time he was in India and very regularly took Endone, which had been prescribed to him by Dr Sabir.
[4] Application to Admit Late Documents (AALD) dated 18 April 2023.
The respondent maintained that during the period in India and following his return his symptoms were severe and he had no capacity for work.
Mr Joseph George
Mr Joseph George, the respondent’s friend, provided a statement, in which he provided information about his arrangement with the respondent for the respondent to become a partner with him in a carpet cleaning business.[5] He stated that, because they were close friends, and because the respondent was in financial distress and was being pushed by the appellant’s rehabilitation provider to perform work that the respondent could not do, he offered the respondent a part share in his business venture. He said that the respondent attempted administrative work and physical cleaning work but was unable to perform that work or contribute to the business.
[5] Statement dated 12 December 2022, ARD, pp 28–29.
Mr George advised that the business did not make a profit and the business was dissolved.
The Medical evidence from the treatment providers
The clinical records of Dr Steve Cheong, general practitioner
The clinical notes of Dr Steve Cheong commencing from 29 August 2015 were in evidence.[6] The first relevant entry was recorded on 12 February 2019, when the respondent attended complaining of an onset of discomfort and pain for the past six months. Dr Cheong noted that the respondent was a bus driver and was right hand dominant. Dr Cheong referred the respondent for an ultrasound of the left shoulder. On 13 February 2019, Dr Cheong noted that the ultrasound disclosed a partial tear of the left supraspinatus and bursitis. On 22 March 2019, Dr Cheong considered that the respondent could return to work 4 hours per day, 5 days per week.
[6] ARD, pp 164–168.
On 28 May 2019, Dr Cheong recorded:
“was in India for one month whilst on leave
flare up of pain esp down left arm/shoulder
can do office based duties for 2 weeksavoid driving until reviewed+ physio”.[7][7] ARD, p 166.
On 28 May 2019, Dr Cheong issued a Certificate of Capacity, noting that the respondent experienced a “flare up whilst on holiday – neck pain + left arm numbness.”[8]
[8] ARD, p 121.
On 24 July 2019, Dr Cheong organised a repeat left shoulder ultrasound noting that the pain had improved but that the respondent was experiencing “some extension” of the pain up the neck.[9]
[9] ARD, p 167.
Mr Christopher Han, physiotherapist
The respondent attended for treatment by Mr Han, who reported to Dr Cheong on 18 February 2019 following the consultation. Mr Han did not record any complaint of symptoms in the cervical spine.[10]
[10] ARD, pp 171–172.
Mr Georges Semaan, physiotherapist
On 25 June 2019, Mr Georges Semaan, physiotherapist, reported to the respondent’s treating general practitioner, Dr Steve Cheong.[11] He referred to the respondent’s left shoulder injury sustained on 12 February 2019, which he diagnosed as a “high grade partial tear of the left supraspinatus”. He noted the history of the respondent experiencing a “sharp pull” in his left shoulder while steering a bus in his employment. Mr Semaan further noted that the respondent had attended another physiotherapist for treatment but found it was not beneficial.
[11] ARD, pp 76–77.
Mr Semaan recorded that the respondent complained of symptoms that were worse after sleeping, using his left arm for showering, lifting greater than 2 kilograms and putting on or taking off his shorts. He performed a physical assessment and recommended that the respondent undergo further physiotherapy and a functional assessment, noting that the respondent was currently deemed unfit for work.
Mr Semaan provided a further report dated 27 July 2022, directed to the respondent’s legal representatives.[12] He noted that the respondent experienced a click and immediate pain in his left shoulder when steering a bus, and also felt an onset of neck pain. He further noted that the respondent suffered a “consequential injury” in the right shoulder caused by overusing the right shoulder in order to protect the injured left shoulder.
[12] ARD, pp 88–90.
Mr Semaan indicated that the respondent first attended for treatment on 24 June 2019, when he complained of left anterior shoulder pain, which was his main problem, but also complained of cervical stiffness and pain. He recorded that the respondent had attended with decreased left shoulder range of motion, reduced grip strength, and pain on flexion, abduction and internal rotation. He added that the respondent had decreased left sided cervical spine range of movement and tenderness in his left cervical spine extensors.
Mr Semaan confirmed that the respondent had complained of right shoulder symptoms on several occasions. He said that, in his view, the respondent’s right shoulder symptoms, which worsened over time, had developed from the respondent’s habit of relying more on his right shoulder to perform tasks because of the left shoulder injury.
Mr Semaan advised that the respondent had first complained of right shoulder symptoms on 24 April 2020.
Mr Semaan said that the main focus of the respondent’s treatment was on the more troublesome left shoulder, although the respondent complained of neck symptoms, for which Mr Semaan provided treatment in the form of neck stretches and manual therapy. Mr Semaan indicated that he agreed with Dr Eugene Gehr that the respondent had injured his neck and suffered a consequential condition in the right shoulder.
Dr Saadia Sabir, general practitioner
Dr Saadia Sabir provided a report dated 20 September 2022 in response to a request from the respondent’s legal representatives.[13] She confirmed that the respondent had suffered an injury to his left shoulder when steering a bus in the course of his employment, which was identified in an MRI scan report as left supraspinatus tear and bursitis. She advised that the respondent was referred for physiotherapy and to Dr Warren Kuo, shoulder surgeon.
[13] ARD, pp 94–95.
Dr Sabir agreed that the respondent also developed right shoulder pain as a result of overuse while protecting his left shoulder. She remarked that the left shoulder had been injured for some time, and that the respondent had attempted to return to work, including driving buses, which required him to overuse his right shoulder. She confirmed that the respondent complained on several occasions of right shoulder pain and pain in the neck. Dr Sabir said that the respondent mentioned his right shoulder symptoms on 5 May 2021. She added that the respondent had always complained of left shoulder and neck symptoms from the beginning of the injury and said that the MRI scan investigation of the cervical spine was undertaken on 6 September 2019. She advised that physiotherapy, steroid injections and surgery to the left shoulder did not improve the respondent’s pain, his use of the left arm was reduced, and he was thus not able to perform his former duties. Dr Sabir said that the right shoulder condition had become more prominent in May 2021.
Dr Warren Kuo, orthopaedic surgeon
The respondent was referred by Dr Sabir to Dr Warren Kuo, an orthopaedic surgeon specialising in shoulder surgery. He provided a number of reports directed to Dr Sabir in respect of treatment provided to the respondent between 21 October 2019 and 3 May 2021.[14]
[14] ARD, pp 149–162.
In the report dated 21 October 2019, Dr Kuo recorded a consistent history of injury to the left shoulder, with pain levels assessed at “9 out of 10”, worse at night. He noted that the MRI scan performed on 4 October 2019 revealed a partial supraspinatus tear of the rotator cuff with bursitis. He considered that the respondent could benefit from a cortisone injection.[15]
[15] ARD, p 149.
On 26 November 2019, Dr Kuo advised Dr Sabir that the respondent had only temporary relief of his symptoms from the injection and recommended surgical intervention in the form of a left shoulder arthroscopy, subacromial decompression and/or a rotator cuff/biceps repair.[16]
[16] ARD, p 151.
Dr Kuo performed the surgery on 19 February 2020.[17]
[17] ARD, p 153.
After protracted further physiotherapy and exercises, on 17 June 2020 Dr Kuo noted that the respondent’s improvement had plateaued and suggested a further cortisone injection.[18] At the next consultation on 12 August 2021, Dr Kuo recorded that the respondent had not enjoyed any significant improvement in his restrictions and symptoms and suggested a manipulation and injection to the glenohumeral joint under anaesthetic,[19] which was performed on 10 September 2020.[20]
[18] ARD, p 156.
[19] ARD, p 157.
[20] ARD, p 158.
On 18 February 2021, Dr Kuo noted that the respondent had regained “a very good range of movement and power without pain,” and an MRI scan performed on 12 February 2021 confirmed little significant pathology. He further noted that the respondent complained of neck pain, which required investigation in the form of an MRI scan of the cervical spine.[21]
[21] ARD, p 161.
On 3 May 2021, Dr Kuo recorded that the respondent was still experiencing low posterior neck pain, especially after driving, and the MRI scan reported mild C5 disc disease. He recommended that the respondent be reviewed by a spinal surgeon.[22]
[22] ARD, p 162.
Dr Bhisham Singh, orthopaedic and spinal surgeon
Dr Bhisham Singh reported to Dr Kuo on 1 June 2021.[23] He noted that the respondent complained of experiencing neck pain with left arm pain and paraesthesia, which had been present for two years. He described the neck pain as a dull ache without weakness of the arms. Dr Singh observed that the MRI scan of the cervical spine performed in March 2021 did not show significant nerve compression. He noted that the respondent was also experiencing lower back pain and sciatica. He recommended the respondent undergo a nuclear medicine bone scan of the cervical spine and an MRI scan of the lumbar spine.
[23] ARD, p 79.
Dr Singh provided a further report dated 23 August 2022.[24] He confirmed the history of complaints recorded in his earlier report. He opined that the history and the mechanism of the injury on 11 February 2019 was suggestive of a strain of the cervical spine when he injured his left shoulder. Dr Singh observed that symptoms from a neck injury often overlap with those of a shoulder injury. He indicated that he agreed with the opinion of Dr Gehr that the respondent suffered an injury to his neck in the incident on 11 February 2019.
[24] ARD, pp 91–92.
Dr Manish Gupta, orthopaedic surgeon
Dr Sabir referred the respondent to Dr Gupta for treatment of his right shoulder condition. Dr Gupta reported to Dr Sabir on 7 December 2022.[25] He took a history of the injury to the left shoulder and the surgery to repair the rotator cuff, which he noted did not resolve the respondent’s symptoms. He diagnosed the right shoulder pathology as a “full-thickness right rotator cuff tear, on background of poor progress after work related left rotator cuff repair.” He opined that “[d]ue to painful flexion and poor surgical outcome with left shoulder [the respondent] has developed significant pain and aggravated weakness in his right shoulder due to overuse.” He observed that the MRI scan confirmed right rotator cuff pathology which was consistent with the weakness and limited movement displayed on clinical examination. He recommended surgical intervention.
[25] AALD dated 24 February 2023, p 12.
Dr Gupta queried why the right shoulder condition was not included in the respondent’s compensation claim given the left shoulder was compensable and the surgery was not beneficial. He said that overuse of an uninjured body part due to protecting a work-related injury is well recognised. He added that, given that the respondent was 50 years of age and not working, the symptoms were unlikely to be simply attributable to a degenerative age-related condition.
The independent medico-legal experts
Associate Professor Brett Courtenay, orthopaedic surgeon
A/Prof Brett Courtenay was qualified to provide an opinion on liability by the appellant. He reported to the appellant on 28 June 2021.[26]
[26] Reply to Application to Resolve a Dispute (reply), pp 72–79.
A/Prof Courtenay took a history of the respondent’s injury on 11 February 2019. He said that the respondent reported a “significant problem with his left arm and neck and shoulder area” and that the respondent had been experiencing some pain in the few days leading up to 11 February 2019, which was more noticeable when turning the bus.
A/Prof Courtenay took a consistent history of the respondent’s post-injury work and the treatment provided, including the surgery to the shoulder provided by Dr Kuo and the investigation of cervical spine symptoms. He noted that the respondent complained of constant pain and tightness in the shoulder and neck, the respondent had difficulty sitting for prolonged periods and had difficulty sleeping.
A/Prof Courtenay performed a physical examination and reviewed the radiological investigations, including MRI scans of the left shoulder and cervical spine undertaken on 17 April 2019 in India (which he commented were equivalent to investigations performed in Australia). He agreed that the respondent suffered a flare of the rotator cuff when turning the steering wheel, noting that following surgery the respondent suffered a frozen shoulder. He considered that the respondent’s range of motion was improving and thought that it should continue to improve. He diagnosed a partial tear of the rotator cuff which was aggravated by excessive turning of the steering wheel of the bus.
A/Prof Courtenay was of the view that there was no cervical pathology contributing to the left shoulder difficulties and while the respondent suffered a frozen shoulder post-surgery, there was no “secondary” injury to the cervical spine.
In respect of the respondent’s capacity for work, A/Prof Courtenay considered that the respondent should be able to achieve a return to near full duties, but conceded that the weight of the steering wheel would need to be factored in. He noted that the respondent was working his full-time hours, partly in administration duties, but considered that the respondent would be able to get slowly back to full duties in the longer term. He acknowledged that the respondent would continue to experience difficulties in respect of his range of movement.
A/Prof Courtenay examined the respondent again on 4 February 2022 and produced a report dated 28 February 2022.[27] He confirmed the history recorded in his earlier report and provided details of other, non-related physical and psychological issues reported to him by the respondent, which A/Prof Courtenay said was effectively a complaint of pain “everywhere.”
[27] Reply, pp 80–89.
A/Prof Courtenay considered that there were inconsistencies in the respondent’s movements in undressing for the physical examination, in that the respondent displayed near to normal movements of his arms, low back and cervical spine, including turning his head to nearly 90 degrees to the right when the respondent was talking to A/Prof Courtenay and near normal movement of his shoulders. A/Prof Courtenay noted that the range of movement of the left shoulder had significantly improved since the last consultation and that movement of the right shoulder was normal. He observed that the respondent showed restricted range of movement in the examination that was not consistent with that displayed informally, which he considered indicated significant exaggeration and inconsistencies.
A/Prof Courtenay agreed that there was some residual impairment of the left shoulder, but advised that he did not believe that the respondent’s difficulties with the cervical spine and the right shoulder were in any way attributable to the left shoulder injury, which, in any event, showed no impairment. He provided a diagnosis of a left shoulder rotator cuff surgical repair and an associated resolving frozen shoulder.
A/Prof Courtenay disagreed with Dr Gehr’s views as to causation of the respondent’s right shoulder condition and cervical spine. He referred to Dr Gehr’s reference to bilateral rotator cuff wasting and observed that it is not possible to measure any wasting because the muscle of the rotator cuff is deep. He added that, on examination, there was no asymmetry of the shoulders at the time of the first examination and the range of motion when the respondent was supporting himself with his left arm when rising from the couch was much greater than that recorded by Dr Gehr. He commented that Dr Gehr had unfortunately been the subject of gross exaggeration. He added that the same applied to the right shoulder because he found at the initial examination that the respondent had normal range of motion. He noted that Dr Gehr had found no wasting of the forearms or biceps, which was also an inconsistent finding.
A/Prof Courtenay said that there was also an inconsistency with respect to the cervical spine. He referred to Dr Gehr’s observation of a decreased sensation at the C6 and C7 levels with reduced handgrip when compared to the right, with no wasting. He said that those findings were inconsistent with what he had observed in his examination, and that the observation made by Dr Gehr that the tendon reflexes were normal was inconsistent with a finding of the presence of muscle weakness or nerve radiculopathy. A/Prof Courtenay expressed the view that the “deep tendon reflexes are the first to go.”[28]
[28] A/Prof Courtenay’s report dated 28 February 2022, reply, p 86.
A/Prof Courtenay maintained that he did not accept that the respondent suffered an injury to his cervical spine. He said he understood how steering a bus could have caused an injury to the left shoulder but did not accept that such action could cause a cervical spine injury. He added that he did not accept that the cervical spine symptoms could be consequential to the left shoulder injury. He indicated that there may have been some restriction of the muscles around the shoulder, but those symptoms would have been more likely referrable to the frozen shoulder, which had virtually resolved, rather than the cervical spine.
A/Prof Courtenay added that he did not believe that the respondent’s right shoulder condition was consequential to the left shoulder injury. He explained that on both occasions when he examined the respondent, he found that the respondent had a full range of movement of the right arm, the respondent was right hand dominant, he was doing much less work than he had previously done, so that there was no causal relationship between the right shoulder and anything related to the respondent’s employment.
A/Prof Courtenay proceeded to make an assessment of the respondent’s whole person impairment in respect of the left upper extremity only.
Dr Derek Lee, occupational physician
Dr Derek Lee provided a report dated 30 November 2022 at the request of the appellant.[29] He took a consistent history of the respondent’s left shoulder injury and the subsequent treatment. He noted that the respondent also claimed to have developed right shoulder symptoms, which the respondent attributed to increased use because of the left shoulder issues.
[29] Reply, pp 90–109.
Dr Lee referred to the respondent’s neck symptoms, which the respondent described as constant pain at the base of the cervical spine. He noted that the respondent was referred to Dr Singh in respect of those symptoms.
Dr Lee noted that the respondent’s ability to perform his duties fluctuated and, after a deterioration in his condition, the respondent’s capacity for work was down-graded and he ultimately performed a work trial performing domestic cleaning. Dr Lee observed that in the course of the work trial, the respondent suffered an injury to both ankles and thereafter he did not return to work.
Dr Lee recorded details of the respondent’s ongoing physical limitations and difficulties. He observed that the respondent reported a sitting tolerance of only 10 to 20 minutes, but that the respondent sat without obvious discomfort for 45 minutes during the examination. Dr Lee performed a physical examination and observed that the respondent displayed abnormal illness behaviours and exaggeration in the form of significant inconsistencies between the formal assessment and the observed behaviour, such as:
(a) limited forward flexion of his cervical spine but full flexion when looking down to read the weight machine, and
(b) the screening ranges of movement of the left upper limb were not reproduced on formal testing.
Dr Lee reviewed the radiological investigations.
Dr Lee formed the opinion that, compared with the objective findings, the degree of the respondent’s symptoms and functional tolerances were well beyond those that would be expected. He pointed to inconsistencies in the physical examination, the respondent’s sub-optimal effort on examination and his abnormal illness behaviour.
Dr Lee confirmed that the respondent suffered a soft tissue injury to his left shoulder as a result of the injury. He advised that the cervical spine, right shoulder and ankle conditions were not related to the injury on 11 February 2019. He said that he agreed with the diagnoses provided by Dr Gehr but not with his opinion on causation. He added that he was not aware of any evidence that supported the notion that the development of symptoms in the collateral limb (the right shoulder) was consequential to the injury as a result of favouring the injured limb.
In respect of the respondent’s capacity for work, Dr Lee opined that the respondent was not totally incapacitated and considered that the respondent would be capable of working full-time but with shoulder restrictions as a result of the left shoulder injury, but not to return to bus driving.
Dr Lee formed the view that he was unable to assess the respondent’s whole person impairment because of the inconsistencies referred to in respect of the respondent’s presentation.
Dr Eugene Gehr, orthopaedic surgeon
Dr Gehr was asked by the respondent’s legal representatives to examine the respondent and provide an opinion. He provided a report dated 2 November 2021.[30] He reviewed the medical reports provided by Dr Kuo, the clinical records of Dr Cheong, the various Certificates of Capacity, the physiotherapy reports, as well as the respondent’s statement dated 26 June 2019.
[30] ARD, pp 41–55.
Dr Gehr took a history of the respondent’s symptoms, noting the cortisone injections and surgery performed by Dr Kuo, which the respondent advised did not reduce his pain or improve his movement. He took the further history that the respondent had been unable to return to full duties and was only able to drive for 10 or 15 minutes. Dr Gehr referred to Dr Kuo’s observation in his report dated 3 May 2021 that the respondent was still experiencing neck symptoms, especially after driving. He added that the respondent reported the development of pain over the right shoulder following the left shoulder procedures.
Dr Gehr recorded the respondent’s current symptoms and performed a physical assessment of the respondent. He confirmed that the left shoulder pain persisted, there was rotator cuff muscle wasting and decreased range of motion. He said that the respondent also suffered a cervical spine injury in the incident and that pain in the neck, decreased sensation at the C6/7 level and reduced handgrip strength were all present on examination. He said he also found signs of clinical impingement and decreased range of movement of the right shoulder.
Dr Gehr provided a diagnosis of left shoulder tissue injury, rotator cuff pathology with persistent pain and loss of range of movement, a soft tissue injury to the cervical spine with left radiculopathy and a soft tissue injury to the right shoulder with pain and loss of range of movement.
Dr Gehr concluded that the injuries were caused by the incident and the right shoulder was a consequential injury. He reasoned that the medical literature provided support for the collateral shoulder becoming symptomatic because of increased loads in 20% to 40% of cases, which he confirmed had occurred in this case. He said that the respondent was unable to return to his pre-injury occupation and, in the context of the continuing symptoms for over two and a half years, the respondent’s prognosis was poor. Dr Gehr made recommendations for further treatment and considered that the respondent required assessment of his suitability for rehabilitation.
Dr Gehr provided a supplementary report dated 2 November 2021 in which he assessed the respondent’s whole person impairment resulting from the injury, which included an assessment of the left and right shoulders and the cervical spine.[31]
[31] ARD, pp 56–59.
Dr Gehr was requested by the respondent’s legal representatives to provide a further supplementary report in response to various questions. He responded in a report dated 15 September 2022.[32] Dr Gehr confirmed his opinion that the respondent suffered an injury to his neck directly related to the left shoulder injury on 11 February 2019. He noted that Dr Singh and Mr Semaan agreed with that opinion. Dr Gehr said that he agreed with the opinions of Dr Singh and Mr Semaan that the respondent injured his left shoulder and neck and suffered a consequential condition in his right shoulder. He described both practitioners as experienced in their respective fields and said that their opinions were “mainstream and orthodox in Australia”.
[32] ARD, pp 60–63.
Dr Gehr noted that A/Prof Courtenay disagreed with his opinion. Dr Gehr observed that A/Prof Courtenay found that the respondent’s movements were consistent with what Dr Gehr considered to be those of a “healthy young man.” Dr Gehr said that they were not consistent with the movements one would expect from a person who had undergone left shoulder surgery, which was complicated by capsulitis requiring further steroid injections and who was continuing to be reviewed by a shoulder specialist. Dr Gehr stated that, in his opinion, the movements he recorded in respect of both shoulders, particularly the left shoulder, were more in keeping with the respondent’s clinical situation.
Dr Gehr refers to A/Prof Courtenay’s comment that it is not possible to assess bilateral rotator cuff muscle wasting. Dr Gehr provided a detailed account of how rotator cuff muscle wasting caused by rotator cuff pathology is assessed, including that it is usually associated with wasting of the deltoid muscle, which does not cover the whole of the scapula, so if there is rotator cuff muscle wasting it becomes easy to see the bony contours of the scapula. He added that the rotator cuff muscle is normally convex in nature but with rotator cuff muscle pathology, it becomes concave. He said that this was the situation in the respondent’s case.
Dr Gehr referred to A/Prof Courtenay having diagnosed the respondent as suffering from a frozen shoulder, which was settling. He pointed out that the range of movement recorded by A/Prof Courtenay was not consistent with a frozen shoulder, even if the respondent had recovered from the condition. Dr Gehr further referred to A/Prof Courtenay’s view that the respondent’s right shoulder issues were not related to his employment. He maintained his view expressed in his earlier report that in 20% to 40% of cases, in this case of shoulder pathology, the collateral joint is affected. He referred to various papers supporting that occurrence and a further paper that reported that, in patients treated for a partial or full thickness tear there is a significantly higher risk of experiencing a tear on the collateral side. He pointed out that the ultrasound of the right shoulder dated 14 September 2022 disclosed a tear of the rotator cuff.
Dr Gehr referred to A/Prof Courtenay’s opinion that the respondent did not suffer an injury to his cervical spine. He pointed to Dr Singh’s observation that the symptoms of a neck injury often overlap with the symptoms of a shoulder injury, and so it is not always clear cut whether the injury is to the shoulder or to the neck.
Dr Gehr noted that A/Prof Courtenay said that Dr Gehr was the victim of gross exaggeration. Dr Gehr responded, referring to his observation in first report that the respondent displayed no pain behaviours, no non-physiological behaviour, no exaggeration and no embellishments. He declared that he was not a victim of such behaviour.
Dr Gehr was forwarded a bundle of additional material by the respondent’s legal representatives and at the request of the legal representatives provided a further report dated 18 March 2023.[33] He confirmed his diagnoses of the conditions in the left shoulder, cervical spine and right shoulder and also confirmed his opinion that the respondent suffered an injury to his neck on 11 February 2019. He noted that Dr Singh and Mr Semaan both agreed with his opinion. He confirmed his response provided in his report dated 15 September 2022 in respect of A/Prof Courtenay’s observations. He added that he disagreed with the views of Dr Lee in that the respondent did not display the pain behaviours, catastrophising, inconsistencies and suboptimal effort described by Dr Lee.
[33] AALD dated 18 April 2023, pp 14–17.
Dr Gehr considered that Dr Lee’s criticism that the respondent sat for 45 minutes without obvious stress but reported only being able to sit for 10 to 20 minutes was unreasonable, saying that the client “does not keep a stopwatch” and that it is difficult to absolutely recall periods of distress. Dr Gehr referred to Dr Lee’s opinion that the respondent’s cervical spine soft tissue injury was not related to the injury on 11 February 2019. Dr Gehr pointed out that that conclusion was contrary to the justification of an injury in the pathological findings on the MRI scan dated 6 September 2019 and the records in the clinical, specialist, and physiotherapy notes, which all recorded cervical spine problems from the time of the left shoulder injury.
Dr Gehr pointed to Dr Lee’s opinion that the respondent did not suffer from a consequential condition in his right shoulder. Dr Gehr said that Dr Lee did not refer to the studies mentioned by him in his report and did not explain why he did not consider the right shoulder developed as a consequence of the left shoulder injury.
Dr Gehr added that, contrary to Dr Lee’s opinion that the respondent was only partially incapacitated, he was of the view that the respondent clearly was not able to return to his pre-injury duties as a bus driver.
THE MEMBER’S REASONS
The Member identified the issues she was required to determine. She noted that there had been insufficient time at the arbitration hearing for the parties to complete their submissions and that they had, in accordance with a direction issued by her, provided written submissions.
The Member summarised the respondent’s statement evidence, Mr George’s evidence, and the medical evidence. She noted that the notification of injury/illness form dated 14 February 2019 did not mention an injury to the neck. The Member did not provide a summary of the parties’ submissions but advised that she had “carefully considered the submissions and [was] grateful to the assistance” provided.[34]
[34] Chandi v Busways Group Pty Ltd [2023] NSWPIC 417 (reasons), [73].
The Member noted that the respondent bore the onus of proof. She referred to Nguyen v Cosmopolitan Homes (NSW) Limited[35] and Malec v JC Hutton Pty Ltd,[36] in which the onus of establishing a fact on the balance of probabilities was discussed. She further referred to Kooragang Cement Pty Ltd v Bates[37] as a relevant authority in respect of questions of causation of an injury or a consequential condition, as well as the issue of the respondent’s capacity for work.
[35] [2008] NSWCA 246.
[36] (1990) 169 CLR 638.
[37] (1994) 35 NSWLR 452.
The Member turned to the issue of whether the respondent injured his neck on 11 February 2019 in the course of his employment with the appellant pursuant to s 4 of the 1987 Act and whether the respondent’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. The Member observed that the authority of North Coast Area Health Service v Felstead,[38] referred to by the appellant, and the decision of Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[39] were helpful authorities in respect of making a determination as to whether the respondent suffered a personal injury pursuant to s 4 of the 1987 Act.
[38] [2011] NSWWCCPD 51.
[39] [2014] NSWWCCPD 47 (Kear).
The Member noted that in Kear, Roche DP discussed the meaning of a personal injury and said that:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ … it is ‘a sudden identifiable pathological change’.”[40]
[40] Kear, [38].
The Member also referred to authorities dealing with whether the employment was a substantial contributing factor to the injury, noting that it was “a matter of impression and degree to be decided following careful consideration of the factual and medical evidence admitted in these proceedings.”[41]
[41] Reasons, [80], referring to Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; McMahon v Lagana [2004] NSWCA 164.
The Member considered it significant that there was no contemporaneous evidence of the respondent suffering an injury to his neck on 11 February 2019. She observed, however, that the respondent explained in his statement dated 9 August 2022 why he did not mention his neck injury when making the earlier statement and described the pain as in fact radiating into his neck. The Member noted that the Notice of Injury form completed by the respondent did not mention the neck symptoms and Dr Cheong did not refer to any complaint of neck pain until 29 May 2019.
The Member observed that the respondent subsequently consulted Dr Sabir, who was sufficiently concerned about the neck symptoms on 28 August 2019 to refer the respondent for an MRI scan of the cervical spine. The Member considered it relevant that the referral mentioned neck pain, which was worse on the left, and queried whether there was left sided radiculopathy or nerve impingement. The Member also observed that it was only approximately two months after the respondent’s statement dated 26 June 2019 that Dr Sabir arranged the referral.
The Member referred to the clinical records of Sydney West Physio in which there was no reference to neck pain and recorded that on 6 March 2019 and 18 March 2019 there was a full range of motion of the cervical spine. The Member noted that the respondent subsequently came under the care of Mr Semaan, physiotherapist, who assessed the respondent on 24 June 2019 and recorded left arm pain but also noted the respondent’s complaint of cervical spine tenderness.
The Member further referred to Dr Singh’s evidence as to the history and mechanism of injury, which he considered was suggestive of a cervical spine strain occurring when the left shoulder was injured, and to Dr Singh’s observation that symptoms of a neck injury often overlap those of a shoulder injury. The Member remarked that Dr Singh was a specialist spinal surgeon with extensive experience in treating cervical spine issues. The Member concluded that she accepted that the respondent’s neck symptoms may have overlapped the symptoms referrable to the left shoulder injury.
The Member pointed out that Dr Lee and A/Prof Courtenay were of the view that the respondent did not injure his neck on 11 February 2019, but that Dr Gehr opined that the respondent did. The Member indicated that she preferred the opinion of Dr Gehr over that of Dr Lee because Dr Gehr had the benefit of the MRI scan reports from 2019 and 2021, as well as the respondent’s initial statement (which was silent in respect of reference to neck symptoms), whereas it was not apparent that Dr Lee had access to that evidence. The Member further indicated that she preferred the opinion of Dr Gehr to that of A/Prof Courtenay. She reasoned that A/Prof Courtenay’s opinion that the respondent did not suffer a neck injury in the incident pleaded appeared to be based upon his findings on examination, which were inconsistent to those of Dr Gehr, and his view that, while the respondent may have suffered an injury to his left arm, there was no reason why the neck would be symptomatic. The Member said that A/Prof Courtenay did not acknowledge the history provided by the respondent that he experienced a significant issue with his left arm, neck and shoulder on 11 February 2019, and A/Prof Courtenay did not refer to the findings in the diagnostic imaging.
The Member concluded:
“I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I am of the view [the respondent] has provided a consistent and credible history of injury occurring on 11 February 2019 in the course of his employment with [the appellant], including injury to his neck. I accept [the respondent] has discharged the onus of proof required of him and I am satisfied on the balance of probabilities [the respondent] sustained injury to his neck on 11 February 2019 in the course of his employment with [the appellant], and that [his] employment with [the appellant] is a substantial contributing factor to injury.”[42]
[42] Reasons, [86].
The Member turned to the question of whether the respondent suffered a condition in his right shoulder as a consequence of the left shoulder injury. The Member referred to the decision of Snell DP in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan,[43] in which it was confirmed that, in circumstances where it is alleged that a worker suffered from a condition as a consequence of an injury, it is not necessary to satisfy the elements of an “injury” and does not necessarily involve the identification of pathology.
[43] [2016] NSWWCCPD 23.
The Member observed that, in his statement dated 9 August 2022, the respondent provided an explanation as to why he did not mention his developing right shoulder symptoms in his earlier statement. The Member noted that, in the later statement, the respondent explained that despite the treatment for his left shoulder, the left shoulder remained significantly painful and, while focussing on his left shoulder symptoms, he relied heavily on his right shoulder because of the left shoulder symptoms and his right shoulder condition deteriorated to the stage where he had difficulties performing basic tasks with either arm.
The Member reasoned that although Dr Cheong did not record a complaint of right shoulder symptoms, on 5 May 2021 Dr Sabir recorded that the respondent was experiencing pain in the “right side” and attributed the pain to “overcompensation with RHS.” The Member added that on 16 June 2022, Dr Cheong reported that despite the surgery to the left shoulder, the respondent’s symptoms did not improve, and he subsequently observed that the right shoulder became symptomatic because of favouring the left shoulder and overusing the right shoulder. The Member further observed that although there was also no mention in the initial physiotherapy notes of right shoulder symptoms, the respondent subsequently attended Mr Semaan, physiotherapist, who, on specific questioning, said that because of the respondent’s continuing left shoulder symptoms, the respondent had habitually used his right shoulder to perform everyday tasks. The Member noted that Mr Semaan advised that the respondent had reported right shoulder pain to him on 24 April 2020 and complained to him on a number of occasions about right shoulder pain, prompting Mr Semaan to suggest to the respondent that he should report the right shoulder symptoms to Dr Sabir if they persisted.
The Member pointed to the evidence of Dr Lee, noting that the respondent attended Dr Lee wearing a sling on his right arm and that Dr Lee diagnosed a soft tissue injury of the right shoulder, but did not accept that the respondent suffered a consequential condition in his right shoulder.
The Member observed that A/Prof Courtenay did not accept that the respondent was favouring his right arm because the respondent was right-hand dominant. The Member reasoned that, despite the pathology evident on the diagnostic imaging, A/Prof Courtenay found on two occasions that, on examination, the respondent had a full range of movement. She noted that A/Prof Courtenay indicated that he did not observe anything abnormal in relation to the right shoulder, despite Dr Gehr’s findings on clinical examination.
The Member concluded that she preferred the evidence of Dr Gehr over that of Dr Lee and A/Prof Courtenay, particularly in the light of the evidence from the respondent’s treating doctor and treating physiotherapist who had reviewed the respondent on numerous occasions and supported Dr Gehr’s opinion. She noted that when Dr Gehr initially assessed the respondent approximately two and a half years after the left shoulder injury, Dr Gehr reported that despite the left shoulder arthroscopy, manipulation and steroid injections, the left shoulder pain persisted. The Member further noted that Dr Gehr recorded the history of the right shoulder becoming symptomatic following the left shoulder surgery, and on examination, Dr Gehr found reduced range of movement in the context of a clinical picture of right shoulder impingement.
The Member further concluded:
“I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I am of the view [the respondent] has provided a consistent and credible history of injury occurring on 11 February 2019 in the course of his employment with [the appellant] including the development of a consequential condition in his right shoulder. I accept [the respondent] has discharged the onus of proof required of him and I am satisfied on the balance of probabilities [the respondent] has suffered a consequential condition in his right shoulder following injury sustained on 11 February 2019 in the course of his employment with [the appellant].”[44]
[44] Reasons, [92].
The Member turned to the issue of the respondent’s capacity to work. The Member reproduced ss 33 and 38 of the 1987 Act, the definition of “current work capacity” set out in cl 9 of Sch 3 to the 1987 Act and the definition of suitable employment in s 32A of the 1987 Act. She noted that the respondent stated that he did not believe he could return to work in any capacity. The Member further noted that, in her report dated 16 June 2022, Dr Sabir expressed the view that the respondent was not fit for his pre-injury duties despite the surgery, and in the Certificate of Capacity dated 21 February 2023, she certified that the respondent had no current capacity for work.
The Member referred to the opinion expressed by Dr Gehr in his report dated 15 September 2022 that the respondent had no capacity for work from 13 August 2022. The Member observed that Dr Gehr had expressed that view on the basis of an assessment of the respondent undertaken on 2 November 2021 and maintained that view in his subsequent report dated 18 March 2023, following review of Dr Lee’s opinion that the respondent was capable of working full time with restrictions in place in respect of the left shoulder. The Member reasoned that, although Dr Lee was an occupational physician, his opinion took into account restrictions in the left shoulder only, when she had found that the neck injury and the right shoulder condition were compensable. She concluded that in those circumstances, she preferred the opinion of Dr Gehr, who had included the neck injury and the right shoulder condition in his assessment of the respondent’s capacity to work.
The Member referred to the opinion of A/Prof Courtenay that the respondent would, in his view, return to full driving duties in the long term. She observed that A/Prof Courtenay re-examined the respondent on 4 February 2022 but did not provide an opinion on the respondent’s capacity for work.
The Member noted the submission made by the appellant that Acting Deputy President Parker SC found in Morcos v Deosa Enterprises Pty Ltd[45] that “there would seem no reason why the application of the words ‘likely to continue indefinitely’ in s 38(2) of the 1987 Act should not be given their ordinary meaning” and “those words require the [worker] to establish that he is likely to continue to have no current work capacity for an unknown or indeterminate period into the future”.[46] The Member pointed out that the Acting Deputy President did not make that observation. She explained that he had remitted the determination of the weekly payments claim for re-determination and it was Arbitrator Isaksen (as he then was) who made that observation, after he considered the views provided by Arbitrator Harris (as he then was) in Roberts v University of Sydney[47] and President Keating in NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd.[48] The Member indicated that she agreed with that observation and said that she was satisfied that the respondent had discharged the onus of proof in that regard.
[45] [2020] NSWWCCPD 73.
[46] Reasons, [101].
[47] [2021] NSWWCC 25.
[48] [2016] NSWWCCPD 54.
The Member proceeded to consider the quantification of the respondent’s entitlement to weekly compensation.
The Certificate of Determination issued on 16 August 2023 records:
“The Commission determines:
1. The [respondent] sustained injury to his neck on 11 February 2019 in the course of his employment with the [appellant] and his employment was a substantial contributing factor to injury.
2. The [respondent] has sustained consequential condition in his right shoulder.
3. The [respondent] has had no current capacity for work since 13 August 2022 resulting from injury sustained on 11 February 2019 in the course of his employment with the [appellant] and is likely to continue to indefinitely have no current work capacity resulting from that injury.
4. The [respondent] has entitlement to weekly compensation payable under s 38(2) of the Workers Compensation Act 1987 from 13 August 2022 to date and continuing in accordance with the Workers Compensation Act 1987 at the rate of $1,056 per week (subject to indexation) with credit to the [appellant] for weekly compensation already paid to the [respondent] during that period.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal as follows:
(a) Ground A: The Member committed an error of law in failing to provide adequate reasons for her findings;
(b) Ground B: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on its behalf, and
(c) Ground C: The Member’s decision contains errors of fact in:
(i)accepting the respondent’s explanation for the lack of reporting the neck in the original statement, and
(ii)finding that the respondent provided a consistent history of injury.
SUBMISSIONS
As to Ground A
The appellant’s submissions
The appellant reproduces r 78 of the Personal Injury Commission Rules 2021 and submits that the Member failed to provide reasons for her conclusion and failed to provide sufficient reasoning in order for the parties to be aware of her view of the case put by each party. The appellant quotes from the decision of Deputy President Fleming in M & S Shipman Pty Ltd v Matters,[49] in which Fleming DP discussed what is required in order to succeed in a ground of appeal asserting that the decision-maker’s reasons were inadequate. The appellant submits that a failure to address inconsistencies in the evidence or to properly analyse the evidence can constitute a failure to properly and adequately consider all of the relevant evidence before determining which evidence is preferred and can amount to an error of law, relying on Symbion Health Limited v Ford,[50] and Charles Sturt University v Manning[51] as authorities for those propositions.
[49] [2003] NSWWCCPD 19.
[50] [2008] NSWWCCPD 13.
[51] [2016] NSWWCCPD 10.
The appellant submits that the Member failed to give reasons as to the appellant’s submission that the complaint of neck pain was not recorded until Dr Cheong included it in the Certificate of Capacity of 29 May 2019, which was after the respondent experienced the onset of neck pain on holidays in India and thus the neck condition was not work-related.
The appellant further asserts that the Member failed to provide reasons for rejecting the appellant’s submissions that the respondent had acquired transferable skills in previous employment and that the respondent had been able to work in sedentary duties after his injury so that he had some capacity for employment.
The respondent’s submissions
The respondent submits that the appellant’s submission is merely an argument that the Member should have found its submissions more persuasive. The respondent says that that is not sufficient to show error on the Member’s part. The respondent points out that the appellant only makes two submissions in respect of this ground of appeal.
The respondent identifies the submission that the Member failed to give reasons “as to” the neck symptoms having occurred when the respondent was in India, and asserts that the submission does not make sense, does not explain what reasoning should have been included and fails to articulate precisely what the error was.
The respondent submits that, in any event, the clinical entry made by the general practitioner refers to a “flare up”, and not the onset of symptoms, which is consistent with the respondent’s own unchallenged evidence that he had experienced neck pain from the outset. The respondent refers to the Member’s observation that:
“The first mention Dr Cheong made of any complaint of neck pain by [the respondent] is in the Certificate of Capacity issued on 29 May 2019 when Dr Cheong wrote ‘flare up whilst on holiday – neck pain and left arm numbness.’ However, in his clinical records relevant to [the respondent’s] consultation with him on 28 May 2019 Dr Cheong made no reference to [the respondent’s] neck pain coming on while on holiday in India in that he merely noted:
‘was in India for one month whilst on leave.
flare up of pain esp down left arm/shoulder.
can do office based duties for 2 weeks.
avoid driving until reviewed + physio.’”[52]
[52] Reasons, [31].
The respondent contends that no further reasoning by the Member was required.
The respondent points to the appellant’s assertion that the Member failed to give reasons “as to” why the respondent was unable to perform sedentary duties in the form of the work he performed post-injury and that was within his experience. The respondent asserts that the appellant has failed to acknowledge the significant reasoning provided by the Member at [93] to [103] of her decision, in which the Member identified the evidence that clearly supported the conclusion that the respondent had no capacity for any work from August 2022. The respondent points to the respondent’s own evidence, which was not challenged by cross-examination, together with the evidence provided by Dr Sabir and Dr Gehr.
The respondent says that the appellant failed to produce any compelling evidence to counter that evidence and submits that the conclusion that the respondent had no capacity for work was not only open to the Member, but on the available evidence was the only available finding. The respondent adds that it is immaterial that he performed some tasks, with difficulty, for a short time.
The respondent contends that the appellant has failed to disclose error on the part of the Member.
As to Ground B
The appellant’s submissions
The appellant cites passages from DNA 17 v Minister for Immigration and Border Protection,[53] CPE15 v Minister for Immigration and Border Protection[54] and Sarheed v C1 Formwork Group Pty Limited,[55] which are authorities relevant to the obligation of a tribunal to consider the submissions made, and the consequences of a failure to consider a clearly articulated argument which, if accepted, was capable of affecting the outcome.
[53] [2019] FCAFC 146.
[54] [2017] FCA 591.
[55] [2021] NSWPICPD 7.
The appellant submits that the Member failed to engage with the appellant’s submissions that:
(a) the first mention of neck pain was in Dr Cheong’s Certificate of Capacity dated 29 May 2019, after the respondent returned from overseas, thus the neck condition was non-compensable;
(b) the history recorded in the relatively contemporaneous report of Mr Semaan dated 25 June 2019 that did not record neck pain would be more accurate than his report dated 27 July 2022, which did include reference to neck symptoms, so that the history recorded in the earlier report should be preferred;
(c) there was no mention of right shoulder symptoms in the medical evidence from the treatment providers up to June 2019, which might have provided support for the respondent’s allegation;
(d) the respondent’s statement that at the time of making his statement about his injuries on 26 June 2019, he was developing pain in his right shoulder from overuse was contradicted in the same statement when he stated that he was relying more on his right shoulder throughout late 2020, and
(e) the respondent has demonstrated capacity for work and had transferable skills and experience in post injury employment performing sedentary duties.
The appellant submits that the only reference by the Member to those submissions was that she had “reviewed the evidence as a whole” and “carefully considered counsel’s submissions.”[56]
[56] Appellant’s appeal submissions, [23] and [30].
The appellant submits that by failing to respond to and engage with its submissions, the Member failed to engage with and respond to a substantial, clearly articulated argument that was material to the central issue in these proceedings.
The respondent’s submissions
The respondent submits that the appellant complains that the Member should have preferred the appellant’s submissions but gives no reason as to why that should be the case, which is insufficient to establish error on the part of the Member. The respondent asserts that the appellant’s criticism that the Member failed to engage with the appellant’s submissions once again shows that there is a critical failure by the appellant to acknowledge the reasons provided by the Member.
The respondent asserts that it is patently clear that the Member did consider the appellant’s submissions and determined that they were not persuasive, which was a conclusion open to her.
The respondent refers to the authorities relied on by the appellant and submits that the Member was not required to “articulate and directly address every one of the appellant’s submissions”[57] in circumstances where the Member noted the submissions, did not accept them and provided more than sufficient reasons for her contrary conclusions. The respondent provides examples of the Member’s consideration of whether the neck was injured. The respondent submits that the Member:
(a) acknowledged she had considered the appellant’s submissions;[58]
(b) correctly identified the legal task she was required to undertake;[59]
(c) summarised the relevant evidence,[60] and
(d) made her findings and gave reasons for those findings.[61]
[57] Respondent’s appeal submissions, [19].
[58] Reasons, [73], [86].
[59] Reasons, [74]–[80].
[60] Reasons, [12]–[72], [81]–[85].
[61] Reasons, [78]–[86].
The respondent submits that the Member was correct in her approach.
The respondent submits that, in respect of the allegation that the respondent suffered a neck injury in India, there is no medical evidence to support that notion. The respondent adds that the Member clearly addressed the issue of the right shoulder condition in her reasons at [87] to [92]. The respondent contends that the appellant has failed to identify error on the part of the Member in her reasons and findings for accepting the evidence, which the respondent describes as “compelling”.[62]
[62] Respondent’s submissions, [23].
The respondent refers to the appellant’s challenge to the Member’s conclusion as to the respondent’s capacity for work and submits that the appellant has failed to take into account the Member’s reasoning that the lay and medical evidence discloses that the respondent has no capacity for work. The respondent asserts that the appellant’s submission that the respondent could perform suitable work is unsupported by any expert opinion and the submission is therefore uncompelling.
The respondent concludes that the appellant has failed to establish the requisite error in respect of this ground of appeal.
As to Ground C
The appellant’s submissions
The appellant recites the passage from Raulston v Toll Pty Ltd,[63] in which Roche DP summarised the observations of Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[64] and by Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[65] as to what is required to disturb a primary decision-maker’s findings of fact.
[63] [2011] NSWWCCPD 25 (Raulston).
[64] (1966) 39 ALJR 505 (Whiteley Muir).
[65] [2001] FCA 1833.
The appellant submits that the Member’s acceptance of the respondent’s explanation for failing to mention the neck injury because the respondent was only questioned about his left shoulder injury was fundamentally wrong. The appellant submits that the respondent’s statement dated 26 June 2019 shows that he was making a statement about all injuries arising from the event on 11 February 2019, as follows:
(a) the respondent declared that the contents of the statement was true to the best of his knowledge;
(b) he had been asked to provide the statement in relation to his workers compensation claim for his physical injury;
(c) the respondent was having difficulties with assisting in the duties at home because of his left shoulder;
(d) on 11 February 2019, he suddenly felt a sharp stabbing pain in the left shoulder under the shoulder blade, the pain travelled down his arm, and he felt that he could not move his left arm;
(e) the respondent felt the same onset of pain while driving the bus on 19 June 2019;
(f) he believed that the injury to the left shoulder occurred over a period of time from driving buses;
(g) he described the pathology of the injury, which was only relevant to the shoulder, and
(h) he declared that he had read the statement, and it was true and correct to the best of his knowledge.
The appellant refers to the explanation provided by the respondent in his subsequent statement dated 9 August 2022 that at the time of making the earlier statement, he was in constant pain in his left shoulder, neck and was developing right shoulder symptoms, he was confused as to the purpose of the statement and was only asked about the left shoulder, so that he thought it was not important to mention the neck injury.
The appellant submits that the respondent’s excuse for omitting to mention his neck symptoms because he was in significant pain could not be accepted because in the earlier statement the respondent reported having been prescribed anti-inflammatory medication for one month and was at the time taking Nurofen when necessary, about two or three times per week. The appellant adds that, in the earlier statement, the respondent described his pain as bearable.
The appellant submits that the excuse provided by the respondent contradicted the earlier statement because of the matters set out in paragraphs [148] and [150] above. The appellant asserts that the Member thus erred by finding that the respondent provided a consistent and credible history of the injury.
In respect of the right shoulder, the appellant says it submitted that there was no evidence from a medical treatment provider that mentioned the right shoulder symptoms up to June 2019 and the evidence of the onset of right shoulder symptoms was contradictory in that the respondent described the onset as occurring in late 2020.
The respondent’s submissions
The respondent says that his evidence was not the subject of cross-examination and submits that his failure to mention his neck symptoms in his statement dated 26 June 2019 is not inconsistent with his explanation for not doing so. The respondent asserts that the statement was instigated by the appellant through an investigator and the respondent’s evidence was that he was only asked about his left shoulder. The respondent contends that the respondent’s explanation was not challenged and ought to be accepted, especially when he did not deny any other injuries or symptoms in that statement.
The respondent refers to the appellant’s criticism of the respondent’s evidence that his right shoulder symptoms were developing in June 2019 and his subsequent evidence that he had symptoms in both shoulders in late 2020. The respondent asserts that in the context of the elapsed time since the injury, together with the fact that the respondent’s evidence on this point was not challenged by cross-examination, the relevance of that evidence is immaterial. The respondent adds that it is immaterial particularly where four medical professionals including three treatment providers (Mr Semaan, Dr Sabir and Dr Gupta) and a medico-legal expert (Dr Gehr) were of the opinion that the respondent suffered a right shoulder condition as a consequence of the injury.
The respondent submits that the appellant has failed to establish error in the Member accepting the respondent’s unchallenged evidence.
THE RELIEF SOUGHT
The appellant seeks to have the Member’s Certificate of Determination overturned, and to have awards in its favour in respect of the allegation of injury to the neck and in respect of the alleged consequential condition in the right shoulder. The appellant also seeks an award in its favour in respect of the claim for weekly payments.
The respondent submits that the appellant has failed to establish error on the part of the Member and the Member’s Certificate of Determination should be confirmed.
CONSIDERATION
Ground A: The Member committed an error of law in failing to provide adequate reasons for her findings
The appellant submits that the Member failed to give reasons “as to” the appellant’s submissions that the respondent’s complaint of neck pain was not recorded until 29 May 2019, after the respondent’s trip to India, and was therefore not work-related. The appellant’s submission made to the Member was limited to the following:
“Dr [Cheong’s Certificate of Capacity] dated 29 May 2019 is the first mention of the neck in the treating medical evidence. Dr [Cheong] states ‘flare up whilst on holiday – neck pain and left arm numbness.’ The [appellant] submits that onset of neck pain while on holidays in India is unrelated to the alleged injury.”[66]
[66] Appellant’s written submissions to the Member dated 8 May 2023, [9(n)].
The Member referred to the Certificate of Capacity, which was the only medical evidence in respect of the respondent experiencing neck pain while in India, and observed as follows:
“The first mention Dr Cheong made of any complaint of neck pain by [the respondent] is in the Certificate of Capacity issued on 29 May 2019 when Dr Cheong wrote ‘flare up whilst on holiday – neck pain and left arm numbness.’ However, in his clinical records relevant to the [respondent’s] consultation with him on 28 May 2019 Dr [Cheong] made no reference to [the respondent’s] neck pain coming on while on holiday in India in that he merely noted:
‘was in India for one month whilst on leave.
flare up of pain esp down left arm/shoulder.
can do office based duties for 2 weeks.
avoid driving until reviewed + physio.’”[67]
[67] Reasons, [31].
The Member did consider that evidence as part of the matrix of factual evidence and it is plain that her conclusion about that evidence was that Dr Cheong did not record the respondent’s neck pain as having its onset in India. It is implicit from the Member’s observations that she was alive to the fact that there was no evidence to support an assertion that the neck pain first presented in India.
In fact, although she took into account the above evidence it appears that she did not overtly deal with the appellant’s submission in terms of making a specific finding in relation to it.
Having not “rejected” the submission, the Member cannot be said to have failed to provide reasons for doing so.
The appellant complains under Ground B of the appeal that it was denied procedural fairness by the Member failing to deal with the submission. I have discussed the lack of merit of this submission under Ground B of the appeal below. The submission has no evidentiary basis and was therefore not a substantial submission that could, if accepted, be material to the outcome of the proceedings.[68] That is sufficient to show that the Member was not in error by not dealing with the submission.
[68] Wang v State of New South Wales [2019] NSWCA 263 (Wang).
The appellant further asserts that the Member failed to provide reasons for rejecting the appellant’s submissions that the respondent had acquired transferable skills in previous employment and that the respondent had been able to work in sedentary duties after his injury so that he had some capacity for employment.
The only evidence of any post-injury “employment” was the evidence of the duties provided to the respondent by the appellant driving a bus for four hours per day and the unsuccessful work trial the respondent performed with Mr Joseph George in conjunction with the appellant’s rehabilitation provider.
The scant evidence about the work trial indicates that the respondent had difficulties performing tasks in both cleaning and administrative work. In those circumstances, and in the absence of any other compelling evidence, the work trial could hardly constitute evidence of an ability to perform that work. The post-injury duties of driving a bus were not considered acceptable by the respondent’s treatment providers and Dr Gehr and were performed prior to the worsening of the respondent’s symptoms. No other suitable duties were identified. The Member’s reasons for rejecting the submission that the respondent had some capacity for work are set out at [119] to [122] above. She provided an analysis of the available medical evidence relied on by the parties pertinent to the period claimed (that is, from 13 August 2022) and gave her reasons for preferring the respondent’s evidence over that relied upon by the appellant.
There is no failure to give reasons where the steps in the judge’s (or decision-maker’s) reasoning were readily apparent.[69] It cannot be said that the Member failed to give reasons for concluding that the respondent had no capacity for work.
[69] Musija v Kresa [2010] VSCA 163, [54]–[58].
It follows that the assertions made under this ground of appeal that the Member erred by failing to give reasons for finding that the respondent injured his neck and failed to give reasons for rejecting the appellant’s assertion that the respondent had some capacity for work are not made out and this ground of appeal fails.
Ground B: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on its behalf
The appellant asserts that the Member failed to engage with its substantial, clearly articulated submissions that:
(a) because the first mention of neck symptoms was recorded after the respondent returned from India, the neck condition was not compensable;
(b) Mr Semaan did not refer to neck symptoms in his report dated 25 June 2019, which was more contemporaneous than his subsequent report dated 27 July 2022, so the earlier report should be preferred;
(c) the right shoulder symptoms were not recorded until after June 2019;
(d) the respondent’s statement in which he claimed that the right shoulder symptoms were developing at the time of the first statement contradicted his subsequent allegation made in the same statement that he was more reliant upon his right shoulder throughout late 2020, and
(e) the respondent had a demonstrated capacity for work in post-injury sedentary duties.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[70] the Full Federal Court made the following observations:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived.
…
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[70] [2003] FCAFC 184, [46]–[47].
In short, not every failure to refer to an argument amounts to error, and it is necessary to engage with the nature and materiality of the argument, in the context of the proceedings.[71]
[71] Wang.
In respect of the first allegation, while the Member did not specifically refer to the submission made, she did take into account the evidence that the respondent experienced neck pain while in India.[72] The appellant’s submission was that this record indicated that the neck symptoms were not compensable. As the respondent points out, the symptoms were referred to as a “flare up”, which infers support for a notion that the symptoms pre-existed this occurrence, and in any event, there was no medical evidence to support the notion that the onset of the neck pain occurring in India was precipitated by some other non-work-related event. It merely establishes that, at a point after the injury on 11 February 2019 and before the respondent made his statement on 26 June 2019 (namely in April 2019 when the respondent was in India), the respondent experienced neck symptoms.
[72] Reasons, [31].
The appellant’s submission about the entry in the Certificate of Capacity does not have the benefit of any medical opinion that supports the notion put forward by the appellant and is, at best, a mere assertion. It is thus a submission that is immaterial to the outcome of these proceedings and there was no error in the Member not dealing with it.
The appellant submits that the Member failed to address its submission that the more contemporaneous report of Mr Semaan dated 25 June 2019 did not refer to neck symptoms, which contradicted Mr Semaan’s subsequent report dated 27 July 2022, so the earlier report should be preferred. It is well established that the mere passage of time between an injurious event and the record of complaints is not of itself determinative of the question of causation of the injury.[73] The Member conceded that there was no contemporaneous evidence of injury to the neck. The Member accepted the respondent’s explanation as to why he did not mention the neck symptoms in his statement dated 26 June 2019. She provided reasons for arriving at that conclusion, which included the evidence of Dr Sabir and that of Dr Singh, a specialist spinal surgeon, who observed that neck symptoms often overlap those of a shoulder injury. The Member determined the issue raised by the appellant that the neck condition was not compensable because of the lack of contemporaneous evidence. She took into account Mr Semaan’s evidence that the respondent reported neck symptoms to him and accepted that evidence, not in isolation but in the context of all of the surrounding evidence. That is sufficient to show that the Member dealt with the lack of contemporaneity in the reporting of symptoms, and in the process of doing so considered the evidence provided by Mr Semaan.
[73] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267.
The appellant further complains that the Member failed to deal with its submission that the right shoulder symptoms did not present until after June 2019. It is somewhat difficult to accept that this was a material argument that the Member was required to determine. The right shoulder symptoms were asserted to be consequential upon the left shoulder symptoms and had developed over time, so that the date of onset, having occurred some time after the frank injury, was not critical. In any event, the Member reviewed the evidence given by the respondent in his statement dated 9 August 2022 in which he stated that the symptoms in the right shoulder were “developing,” became symptomatic, and by late 2020 he relied heavily on his right shoulder to perform everyday tasks, causing the right shoulder to deteriorate. There is nothing in that evidence that could be considered conflicting or indeed “contradictory.” The submission that the respondent contradicted his own evidence in that statement is without basis and the Member dealt with that evidence in a satisfactory manner.
Lastly, the appellant asserts that the Member failed to deal with its submission that the respondent had demonstrated a capacity to work in post-injury employment. The Member clearly dealt with the question of whether the respondent had capacity for work during the relevant period. She took into account the evidence from A/Prof Courtenay in his initial report dated 28 June 2021, A/Prof Courtenay’s failure to address the respondent’s capacity for work following his re-assessment of the respondent on 22 February 2022, and Dr Lee’s opinion. She rejected the evidence from Dr Lee and from A/Prof Courtenay and provided reasons for doing so.
The appellant’s submission that the respondent had a demonstrated a capacity for work is not supported by medical opinion. The only post-injury employment the respondent pursued was administrative work or work as a cleaner, and reduced hours of bus driving. He reported experiencing difficulties with that work, which was not contradicted by other evidence. Without medical support for the assertion, the submission put by the appellant could not be considered a substantial submission material to the outcome.
In those circumstances, it cannot be said that the appellant has been denied procedural fairness in the manner in which the Member determined the respondent’s capacity for work, or in respect of the matters referred to in [169] above. This ground of appeal fails.
Ground C: The Member’s decision contains errors of fact in:
(i) accepting the respondent’s explanation for the lack of reporting the neck in the original statement, and
(ii) finding that the respondent provided a consistent history of injury
The appellant relies on the principles enunciated in Whiteley Muir, as summarised by Roche DP in Raulston, as to what is required in order to disturb the primary decision-maker’s findings of fact. In essence, the errors asserted by the appellant relate to factual determinations made by the Member and the principles identified in Whiteley Muir apply. Relevantly, in order for the appellant to succeed in this appeal, it must establish that the Member, in reaching her ultimate conclusion, overlooked material facts or afforded them too little weight, or that the available opposite inference was so preponderant to the inferences drawn by the Member that the decision must be wrong. It is not sufficient for the appellate tribunal to consider that a different result is preferable.
Firstly, the appellant asserts error of fact on the part of the Member in respect of her finding that she accepted the respondent’s explanation for omitting reference to his neck in his statement dated 26 June 2019. The appellant says that the respondent’s excuse for failing to mention the neck injury was implausible, and relies on parts of that statement where the respondent:
(a) advised that he was asked to make a statement about his compensation claim;
(b) made declarations that he had read the statement, and the contents of the statement were true and correct;
(c) described the injury to the left shoulder/arm, and
(d) complained of an inability to assist with home duties because of the left shoulder.
As the respondent submits, the declaration made was that the information recorded in the statement was true and correct, and the respondent did not deny any other injuries or symptoms. Had he done so, the appellant’s submission on that point might have carried some force.
It is not explained by the appellant and difficult to comprehend how the fact that the respondent described the occurrence of injury to the left arm and complained of difficulty around the home was relevant to the respondent’s explanation for omitting reference to the neck injury in his statement. In any event, the matters identified are not inconsistent with the respondent’s explanation that the investigator only asked him questions about his left arm.
The appellant submits that the excuse made by the respondent that he was in significant pain in his shoulder and neck and was developing right shoulder pain at the time of making the first statement could not be accepted. The appellant says that this is because in his statement dated 26 June 2019, the respondent indicated that his pain was bearable, and his medication was limited to Nurofen two or three times per week when the pain is worse.
The appellant did not make that submission to the Member, or the submission that the respondent’s explanation was implausible because of the matters referred to in [180] above. The legal position with respect to raising an argument on appeal in circumstances where that argument was not squarely raised before the primary decision-maker was summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace:[74]
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.”[75]
[74] [2014] NSWCA 58 (Mamo).
[75] Mamo, [75].
The Member cannot be seen to have fallen into error in circumstances where the argument now put forward by the appellant was not the subject of submissions at arbitration.[76]
[76] Brambles Industries Limited v Bell [2010] NSWCA 162, [30].
The appellant also asserts factual error on the part of the Member in determining that the respondent provided a consistent and credible history of the injury and the development of the right shoulder condition. The appellant submits that there was an inconsistency between the respondent’s evidence that the symptoms in right shoulder were developing in June 2019 and the respondent’s assertion that throughout late 2020, he was relying heavily on his right shoulder to perform tasks during which time he experienced right shoulder symptoms. The appellant says that the presence of pain on the date of making his statement in June 2019 cannot be consistent with the onset of right shoulder pain in late 2020.
The respondent’s evidence was that, at the time of making his first statement, he experienced “developing pain in his right shoulder.”[77] He stated that on 10 September 2020, he underwent surgery to the left shoulder and as a consequence, was relying more on his right arm and “began to wake up with stiffness and aches in [his] right shoulder.”[78] He advised that thereafter the pain in the right shoulder increased.[79] That evidence clearly describes the onset of continuing and worsening symptoms in the respondent’s right shoulder. There is nothing inconsistent in that evidence. I have already discussed the concept of a consequential condition at [175] above. The precise date of onset of a consequential condition after an injury is not usually critical and was not critical in this case.
[77] Respondent’s statement dated 9 August 2022, ARD, p 9, [7].
[78] Respondent’s statement dated 9 August 2022, ARD, p 14, [32].
[79] Respondent’s statement dated 9 August 2022, ARD, p 15, [36].
In any event, the Member determined the question of whether the right shoulder symptoms were referrable to left shoulder injury on the basis of the medical opinions provided. She provided sound reasons for rejecting the opinions of Dr Lee and A/Prof Courtenay and for accepting the evidence provided by the medical experts relied upon by the respondent. As the respondent submits, three treatment providers (Mr Semaan, Dr Sabir and Dr Gupta) and a medico-legal expert (Dr Gehr) were all of the view that the respondent suffered a right shoulder condition as a consequence of the injury.
Applying the principles enunciated in Whiteley Muir, the appellant has failed to establish error in the Member’s factual conclusions that she accepted the respondent’s explanation for not reporting his neck injury in the original statement and in finding that the respondent provided a consistent history of injury. It follows that Ground C of the appeal fails.
CONCLUSION
The appellant’s grounds of appeal have failed to establish error on the part of the Member, the appeal is dismissed and the Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 16 August 2023 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
21 August 2024
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