Cayir v Woolworths Group Ltd; Woolworths Group Ltd v Cayir - [2024] NSWPICPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cayir v Woolworths Group Ltd; Woolworths Group Ltd v Cayir [2024] NSWPICPD 13
APPELLANT:	Umit Cayir (A1-W4121/22) Woolworths Group Ltd (A2-W4121/22)
RESPONDENT:	Woolworths Group Ltd (A1-W4121/22) Umit Cayir (A2-W4121/22)
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-W4121/22 A2-W4121/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	29 February 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination (as amended) dated 28 March 2023 is revoked. 2. The matter is remitted to a different member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – the ‘disease’ provisions – sections 15 and 16 of the Workers Compensation Act 1987 – the need to prove ‘injury’ within the meaning of section 4(b) of the 1987 Act, application of Crisp v Chapman (1994) 10 NSWCCR 492 and associated authorities
HEARING:	On the papers
REPRESENTATION:	Worker:
Mr L Robison, counsel
Coutts Lawyers and Conveyancers
Employer:
Ms N Compton, counsel
BBW Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Inglis
DATE OF MEMBER’S DECISION:	28 March 2023

INTRODUCTION AND BACKGROUND

Umit Cayir (the worker) worked with Coles Supermarkets Australia Pty Ltd (Coles), at its Figtree store, in its bakery operations, from August 2002. The worker developed left arm symptoms in his employment with Coles. He had surgical procedures carried out on his left wrist, for which Coles accepted liability under the workers compensation legislation. On 16 September 2018 he left Coles and began working with Woolworths Group Ltd (Woolworths), again working as a baker, but in duties he regarded as lighter than those at Coles. He worked in the employment at Woolworths for only a short period of time. After ceasing employment the worker made a claim on Coles for permanent impairment compensation, by letter dated 12 June 2019. He relied on a deemed date of injury of 1 August 2009, being when he first reported a gradual onset of left wrist pain to Coles. Coles rejected the claim, made in respect of the wrists, on the basis the worker was suffering from a disease of gradual onset and it, Coles, was not the last relevant employer (relying on ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act)). It was common ground that the injury was in the nature of a disease process.[1]
[1] Cayir v Woolworths Group Ltd [2023] NSWPIC 78 (the reasons), [2]–[10], [17].
Proceedings between the worker and Coles (No. 992/20) (the previous proceedings) were heard in the former Workers Compensation Commission of New South Wales and a Certificate of Determination was issued dated 26 May 2020.[2] The (different) Member in those proceedings, applying s 15 of the 1987 Act, found that the deemed date of injury was the date of claim which was 12 June 2019 (relating to both upper extremities). He found that as at that date the employer was Woolworths, which last employed the worker in “employment to the nature of which the disease was due”. The then Member said that he could not make findings against Woolworths, which was not a party to those proceedings. The worker’s proceedings failed, there was an award in favour of Coles.
[2] Cayir v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 170, Application to Resolve a Dispute (ARD), pp 18–22.
The current proceedings, filed in the Personal Injury Commission (the Commission), nominate Woolworths as the relevant employer. The matter was listed for hearing before a Commission Member on 4 October 2022. Mr L Robison, counsel, appeared for the worker. Ms N Compton, counsel, appeared for Woolworths. The worker relied on injury to his upper extremities, relying on allegations of ‘disease’ within the meaning of ss 15 and 16 of the 1987 Act. There was debate regarding the documentation before the Member. Woolworths did not ultimately pursue a mooted application to cross-examine the worker.[3] Woolworths’ counsel indicated she did not wish to proceed with a recusal application.[4]
[3] Transcript of hearing 4/10/22 (T), T 26.32–27.5.
[4] T 30.24–28.
There were difficulties with the time available for the hearing, after procedural matters and the admission of documents were dealt with. The Member made orders for written submissions, Woolworths by 14 October 2022, the worker by 28 October 2022, and Woolworths in reply by 11 November 2022.[5] A substantial body of material was produced by Coles pursuant to a Direction for Production. The Member issued a Direction dated 10 October 2022, providing for service by Woolworths of this material as Late Documents, the parties to indicate the particular documents relied on. There was also provision for lodgment by Woolworths of clinical notes from Dr Gupta. Woolworths subsequently lodged material produced, 228 pages from Dr Gupta[6] and 922 pages from Coles.[7]
[5] T 28.30–29.23.
[6] Application to Admit Late Documents (AALD) 28/9/22.
[7] AALD 7/10/22.
The worker lodged written submissions dated 28 October 2022 and 21 November 2022 (the latter in reply). Woolworths lodged undated submissions, submissions dated 16 November 2022 and submissions dated 14 December 2022.
The Commission issued a Certificate of Determination dated 3 March 2023 and an Amended Certificate of Determination dated 28 March 2023. References in this decision are to the amended document. The Member found that, in relation to the left wrist, the worker suffered “from a disease of gradual onset namely recurrent ganglion and de Quervain’s tenosynovitis”. He found that the disease process was aggravated, accelerated, exacerbated or deteriorated (“aggravated, etc”) in the course of the worker’s employment and that employment was the main contributing factor.[8] The Member found that the worker had not established he suffered “from a disease process in relation to his right wrist as claimed”. The Member was not satisfied that any condition that may exist in the right wrist was permanent. He referred the matter to the President for referral for medical assessment of permanent impairment of the left upper extremity. He ordered that the medical assessor was to be provided with the ARD, the Reply and the Applications to Admit Late Documents, including the attachments to these.
[8] Reasons, [112]–[113].

THE MEMBER’S REASONS

The Member set out the factual background in a fashion consistent with the above (which references the Member’s reasons). The Member referred to the original pleading of injury, which related to the left wrist. He referred to an assessment by Dr Anderson dated 12 January 2022. The Member noted the worker, at a preliminary conference on 2 August 2022, said the ARD was to be amended to include a claim pursuant to s 66 of the 1987 Act for the right upper extremity. On the morning of the hearing the worker’s counsel amended the allegation of injury to add a claim for permanent impairment in respect of the right upper extremity. The Member described the issues as:
“(a) has the [worker] sustained injuries to his left and right upper extremities as a result of a disease of gradual onset within the meaning of ss 15 and/or 16 of the 1987 Act whilst employed by [Woolworths]?
(b) should any body parts be referred to the President for referral to a Medical Assessor for assessment?”[9]
[9] Reasons, [24].
In summarising the documentary material, the Member noted that documents produced by Coles numbered 1,524 pages and said he would consider material from those documents that was referred to in either addresses or written submissions.[10] The Member summarised the worker’s statements. The worker said that, while working at Coles, he began to experience “symptoms of immense pain in his left wrist”. On 1 August 2009 he developed a large lump on his left wrist which caused “severe pain”. This ganglion was surgically excised by Dr Deshpande. He experienced continuing pain and worked restricted hours. There was “a history of continuing investigation and surgical intervention”. The Member said “[t]here is no doubt that the work which the [worker] performed at Coles involved repetitive and some times heavy use of each of his upper limbs, in particular the wrists.”[11]
[10] Reasons, [30].
[11] Reasons, [33]–[48].
The Member referred to the subsequent duties at Woolworths. It was a smaller and less busy store with significantly lower sales of bakery items. There were reduced repetitive tasks, reduced heavy lifting and longer breaks. The worker said he did not believe that the position at Woolworths had in any way contributed to his injury as he had all the symptoms prior to taking up the new employment with Woolworths. He said the position at Woolworths assisted him to continue work and manage the pain.[12]
[12] Reasons, [49].
The Member quoted at length from the reports of Dr Bodel, in the worker’s case.[13] Dr Bodel considered the short period of work at Woolworths caused only a temporary aggravation and no additional permanent aggravation. Dr Bodel said, “the lengthy period of work at Coles is the main substantial contributing factor to the injury as a result of the nature and conditions of work over that 17 years of employment”. The Member quoted from the report of Dr Haig,[14] qualified in Woolworths’ case. Dr Haig did not believe the worker’s “condition of ganglion and recurrence of ganglion and De Quervain’s, if indeed he had a De Quervain’s condition, were work-related”. He assessed whole person impairment of the worker’s left upper extremity at 25 per cent, which was “non-work-related”.
[13] Reasons, [52]–[58].
[14] Reasons, [60]–[61].
The Member quoted ss 4, 9A, 15 and 16 of the 1987 Act.[15] He referred to Ms Compton’s submissions. He described the crux of Woolworths’ case as a position that there was no injury to the worker’s left upper extremity due to employment with Woolworths, all the injuries claimed resulted from employment with Coles, which was not a party to the proceedings. Ms Compton submitted work with Woolworths caused “only a temporary aggravation at most”. She submitted the worker should make clear whether he relied on “a ‘frank’ injury simpliciter or … only on the disease provisions”. She referred to Kelly v Western Institute NSW TAFE Commission,[16] where Roche DP said that “aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms”. The Member described this as obiter to the Deputy President’s decision. Ms Compton submitted this decision supported the contention that “there must be evidence of symptoms and that employment with [Woolworths] was the main contributing factor to such an increase”.[17]
[15] Reasons, [62]–[66].
[16] [2010] NSWWCCPD 71.
[17] Reasons, [68]–[71].
The Member summarised the worker’s submissions. The worker relied on Dr Bodel’s opinion that the nature of the work over many years caused aggravation, etc of a disease process, the last period of time being the employment with Woolworths. He described the right upper extremity as “less severe” but submitted it should be included. Dr Bodel noted symptoms in the region of the right wrist. Mr Robison referred to the aggravation etc of “some underlying degenerative process which has not yet been formally identified”. He submitted the worker used both upper extremities when working and it stood to reason there was “an injury to both”. Mr Robison submitted Dr Haig’s view should be rejected. He submitted that Dr Haig rejected the concept of consequential pain, well recognised in the Commission as injury.[18]
[18] Reasons, [72]–[76].
The Member referred to Woolworths’ complaint that it was “at a disadvantage by being required to put on its submissions before the [worker]”. Woolworths submitted this placed it in “a precarious position as it is unclear as to the actual claim to which it must respond”. The Member observed (correctly) that it was “not uncommon for a respondent or defendant [to] be required to make the initial submissions where both parties have gone into evidence”. The Member referred both to the worker’s stated position that the case was “founded in the disease provisions”, and to the dispute notice dated 2 December 2021. The Member described Woolworths as being clearly “cognisant of the issues”.[19]
[19] Reasons, [77]–[82].
The Member referred to the definition of ‘injury’ in s 4(b)(ii) of the 1987 Act and to s 16 of the 1987 Act. He said it was necessary to examine the duties carried out at both workplaces, (Coles and Woolworths). He quoted from [37] of the worker’s initial statement and from the worker’s supplementary statement, which described his duties with Coles. He referred to the worker’s supplementary statement at [5], in which the duties at Coles were contrasted with those at Woolworths (see [9] above). The Member said that the worker’s opinion of the “impact of his work at Woolworths and the legal consequences” were not relevant to the matters requiring determination. The Member referred to the decisions of Hay v Commonwealth Steel Co Pty Ltd[20] and State Cover Mutual Ltd v Cameron.[21] The Member said that to approach causation of a ‘disease’ injury by reference to an enquiry as to actual causation, as opposed to that required by the statute, is “fundamentally wrong”.[22]
[20] [2018] NSWWCCPD 31 (Hay).
[21] [2014] NSWWCCPD 49 (Cameron).
[22] Reasons, [84]–[92].
The Member quoted the following from the reasons of Starke J in Smith v Mann:
“It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise ‘out of the particular service of the particular employer sued’: it is enough if the disease is ‘incidental to that class of employment so that it can be attributed to service therein’.”[23]
[23] [1932] HCA 30; 47 CLR 426 (Smith v Mann).
The Member quoted also from the reasons of Dixon CJ in Commonwealth v Bourne.[24]
[24] [1960] HCA 26; 104 CLR 32 (Bourne).
The Member reasoned:
“96. Applying the above line of authority, it is not necessary to delve into the specific work carried out by the [worker] with [Woolworths]. Rather, it is simply enough that the employment is to the nature of which the disease is due. After leaving Coles, the [worker] continued to carry out work as a baker with [Woolworths]. There is no basis upon which to draw sufficient distinction between the work with Coles and with [Woolworths]. Notwithstanding a reduction in heavy tasks and lifting, longer breaks and a less busy stall, the relevant enquiry for the Commission is whether the work with [Woolworths] is employment to the nature of which the disease is due.
97.    This is not a situation where the [worker] was transferred from work as a baker into a completely sedentary role or a role with completely different duties. Rather, he continued to carry out essentially the same duties, albeit they were somewhat less strenuous in nature.
98.    I am of the opinion that the employment with [Woolworths] was of the same nature to that which he carried out with Coles.
99.    Despite Dr Bodel’s opinion that ‘it is unlikely therefore that that short period of work has caused any additional permanent structural injury or aggravation, acceleration, exacerbation and deterioration but only a temporary aggravation at most’. It is not the test that I must apply and Dr Bodel does conclude that there was an aggravation et cetera, although he believed it to be temporary.”[25]
[25] Reasons, [96]–[99].
The Member referred to the views of Dr Bodel, who said that the pathology in the left upper extremity was “a constitutional-based abnormality, and it is a disease process of gradual onset”. The doctor said the “nature and conditions of his work over many years has caused the aggravation, acceleration, exacerbation and deterioration of that disease process as I have indicated”. The Member referred to the opinion of Dr Haig, in Woolworths’ case. Dr Haig said, “I do not believe his condition of ganglion and recurrent ganglion were due to his work, either at Coles or Woolworths.” The Member noted that Dr Haig expressed no opinion regarding “the additionally diagnosed condition of De Quervain’s tenosynovitis for which condition the [worker] underwent a De Quervain’s release”. The Member accepted that “the underlying conditions may have been constitutional”. He accepted Dr Bodel’s view that there was a disease of gradual onset in the left wrist, which had been aggravated etc by the work duties. He accepted that employment was the main contributing factor.[26]
[26] Reasons, [100]–[104].
The Member referred to Dr Bodel’s assessment of the right wrist. Dr Bodel said there was a gradual onset of right wrist and hand pain due to overuse. The doctor said there were symptoms in the region of the right wrist. He said there had “certainly been no specific injury on the right-hand side apart from the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative process which as yet has not been formally identified”. The Member was not satisfied the worker suffered from a disease process in the right wrist. He was not satisfied any condition that may exist in the right wrist was permanent. He referred the matter for assessment of the left upper extremity. He found the deemed date of injury was 12 June 2019.[27]
[27] Reasons, [105]–[110], [112]–[117].

THE APPEALS BEFORE ME

The worker lodged an appeal (A1-W4121/22) on 24 April 2023. That appeal challenges the finding against the worker on his allegation of injury to his right upper extremity and the adequacy of the associated reasons.
Woolworths lodged an appeal (A2-W4121/22) on 26 April 2023 at 5.01 pm. That appeal (in general terms) challenges the finding of ‘injury’ in the worker’s favour on the allegation of injury to the left upper extremity and the adequacy of the associated reasons. The President’s delegate issued a Direction dated 27 April 2023. It noted the last day when an appeal could be lodged in time was 26 April 2023. Woolworths’ appeal was lodged one minute late. Due to the operation of s 36(2) of the Interpretation Act 1987 and the Personal Injury Commission Rules it was taken to have been lodged on 27 April 2023. The Direction stated it was desirable that both appeals run with the same timetable. The President’s delegate dispensed with r 26(1)(b). Woolworths’ appeal was taken to have been received on 26 April 2023, within time.

GROUNDS OF APPEAL

The worker, in matter no. A1-W4121/22, raises the following Grounds of Appeal:
(a) The learned [M]ember erred in fact by finding that the [worker] had not established that he suffers from a disease of gradual onset in his right upper extremity. (Ground No. 1)
(b) The learned [M]ember failed to give adequate reasons. (Ground No. 2)
Woolworths, in matter no. A2-W4121/22, raises the following Grounds of Appeal:
(a)    Misdirection as to the identification [of] the issues in the matter to be determined before him. (Differently expressed by Woolworths at [11] of its submissions, which reads, “Failing to correctly identify the issues in the matter to be determined before him”.) (Ground No. 1)
(b)    Failing to correctly apply the test in s 4(b)(ii). (Ground No. 2)
(c)    Failing to properly and correct [sic] consider the construction of s 15/16 of the [1987] Act and apply accordingly. (Ground No. 3)
(d)    Failing to provide proper reasons considering the evidence. (Ground No. 4)

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”
The worker submits both appeals can be determined on the basis of the written material. He submits Woolworths’ appeal is simple.[28]
[28] Worker’s submissions , A2, [3].

Woolworths submits the “matter may be best dealt with by the assistance of oral submissions”. It refers to the “significant complexity of this matter and the voluminous information”.[29]
[29] Woolworths’ submissions, A2, [8.3].
The issue, the proof of injury pursuant to the ‘disease’ provisions, is relatively confined. The parties have had the opportunity to address the issue in writing, both at first instance and on appeal. The parties do not point to any specific issues on which oral submissions are submitted to be desirable. Much of the “voluminous material” was not raised in the parties’ submissions and consequently was not referred to in the reasons or the submissions on appeal. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me and the submissions by the parties, 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 time and quantum pursuant to ss 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. Neither party argues that the Member’s decision was interlocutory.

APPEALS PURSUANT TO SECTION 352(5) OF THE 1998 ACT

In Raulston v Toll Pty Ltd,[30] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[31](cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[32]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[33]
[30] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[31] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[32] [1996] HCA 140; 140 ALR 227.
[33] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[34]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[35]
[34] [2020] NSWCA 54 (Hill).
[35] Hill, [20].
In Northern NSW Local Health Network v Heggie[36] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[36] [2013] NSWCA 255; 12 DDCR 95, [72].

LEGISLATIVE PROVISIONS

The definition of ‘injury’ in s 4 of the 1987 Act relevantly provides:
“4      Definition of ‘injury’
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,”
Section 15 of the 1987 Act relevantly provides:
“15    Diseases of gradual process—employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
…
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.”
Section 16 of the 1987 Act relevantly provides:
“16    Aggravation etc of diseases—employer liable, date of injury etc
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”

WOOLWORTHS’ APPEAL – A2-W4121/22

Ground No. 1

Misdirection as to the identification [of] the issues in the matter to be determined before him. (Differently expressed by Woolworths at [11] of its submissions, which reads, “Failing to correctly identify the issues in the matter to be determined before him”.)

Ground No. 2

Failing to correctly apply the test in s 4(b)(ii).

Ground No. 3

Failing to properly and correct [sic] consider the construction of sections 15 and 16 of the [1987] Act and apply accordingly.

The worker succeeded at first instance in respect of the injury to the left arm, but not the right. His appeal relates to his right arm, on which his case failed. Woolworths’ appeal is of a more general nature, it challenges the findings of ‘injury’, on the basis the Member erred in that he did not deal with the issue of ‘injury’ within the meaning of s 4(b) of the 1987 Act, before dealing with ss 15 and 16 of the 1987 Act. It is appropriate to deal initially with the employer’s appeal.

Woolworths’ submissions – Grounds Nos. 1, 2 and 3

Grounds Nos. 1 and 2 of Woolworths’ appeal cover similar subject matter, whether there was an erroneous failure to determine the issue of ‘injury’ pursuant to s 4(b) of the 1987 Act. Ground No. 3 is related, it raises the potential interaction of ss 4, 15 and 16 of the 1987 Act. It is convenient to deal with these grounds together.
The Member’s reasons described the issues requiring determination as:
“(a) has the [worker] sustained injuries to his left and right upper extremities as a result of a disease of gradual onset within the meaning of ss 15 and/or 16 of the 1987 Act whilst employed by [Woolworths]?
(b) should any body parts be referred to the President for referral to a Medical Assessor for assessment?”[37]
[37] Reasons, [24].
Woolworths submits the above was incorrect. It submits that, in its oral and written submissions and the s 78 notice dated 2 December 2021,[38] it put the issue of ‘injury’ in issue, together with whether s 4(b)(ii) of the 1987 Act was satisfied. Woolworths submits the Member did not deal with whether ‘injury’ was sustained within the meaning of s 4(b)(ii). It submits this was appealable error.[39]
[38] ARD, p 23.
[39] Woolworths’ submissions, A2, [11.1]–[11.3].
Woolworths submits the Member’s role was to determine whether there was an injury simpliciter pursuant to s 4(a) of the 1987 Act or a ‘disease’ injury within s 4(b). The latter would require that employment with Woolworths was the main contributing factor to the aggravation, etc of the disease. It submits the Member “simply did not determine this issue”. It refers to Federal Broom Co Pty Ltd v Semlitch[40] in which Kitto J described an aggravation or exacerbation as occurring when the patient’s experience of the disease is intensified by increasing or more intense symptoms. It submits the Member failed to “consider any evidence with respect to injury”.[41]
[40] [1964] HCA 34; 110 CLR 626 (Semlitch), [7], per Kitto J.
[41] Woolworths’ submissions, A2, [12.1]–[12.6].
Woolworths submits ss 15 and 16 of the 1987 Act are “provisions to artificially affix a date of injury ... a worker would have to establish an injury under section 4(b)(ii) before the question of section 16 becomes relevant.”[42]
[42] Woolworths’ submissions, A2, [13.1].
Woolworths refers to the worker’s evidence. The worker stated that he did “not believe that the position at Woolworths has in any way contributed to my injury as I had all of the symptoms prior to taking up the new employment”. Woolworths submits it cannot be inferred that the roles were the same “simply because he was a ‘baker’ with both employers”. It submits the “only evidence regarding the nature of the employment is the [worker]”. It submits the worker makes it “very apparent that he had all the symptoms before he started at Woolworths”. Woolworths submits compensation is payable by the employer who “last employed the worker in employment to the nature to which the diseased [sic] was due”. It submits the evidence, including that of the of the worker, does not support this conclusion.[43]
[43] Woolworths’ submissions, A2, [13.2]–[13.4].

Worker’s submissions – Grounds Nos. 1, 2 and 3

The worker makes some general submissions about the ‘disease’ provisions.[44] The worker submits the “question is a simple one – was there any exposure to work which (even may have) contributed to the disease process and was this the last employment to so contribute (or possibly contribute)?” The worker submits the employer’s appeal is “fundamentally based on a misapprehension of principle”.[45]
[44] Worker’s submissions, A2, [8]–[12].
[45] Worker’s submissions, A2, [10]–[11].
The worker submits it was wrong for the employer to put s 4(b)(ii) in issue – “that could never have been in issue because this was a ss 15/16 case”. The worker submits “[s] 4(b)(ii) is aimed at injuries occurring within one course of employment”. He submits “[d]eeming the date is a totally separate issue”. The worker submits:
“The ‘main contributing factor’ test is a high bar (the s 4(b)(ii) test) but it does not apply where the injury was mainly caused [by] prior employment (as it was in this case) but where causation continued to the limited extent that it was ‘due’ to the employment with the subsequent employer (i.e. Woolworths)”.
The worker submits the test in s 4(b)(ii) “never arose”, notwithstanding Woolworths’ s 78 notice.[46] The worker submits:
“It was clear the nature of the claimed injury was not a s 4(b)(ii) injury (as against Woolworths). The main contributing factor was employment with Coles. Section 4(b)(ii) is made out, as against Coles and it does not need to be satisfied (again) as against Woolworths. If that were the case, ss 15/16 would have no purpose.” (emphasis in original)
[46] Worker’s submissions, A2, [13]–[16].
The worker submits the whole point of ss 15 and 16 is to “relieve a worker of the need to prove causation in multiple courses of employment.” The Member did not need to consider whether there was a worsening of symptoms in employment with Woolworths.[47]
[47] Worker’s submissions, A2, [16]–[17].
The worker’s evidence was that he was symptomatic when he commenced with Woolworths. The worker submits that, to succeed:
“… all he needed to demonstrate was that he continued to work as a baker because that necessarily meant that employment with Woolworths was employment to which the disease process was ‘due’. It is not [necessary] that the work be exactly the same. It is only necessary that the disease process be due to the later employment. It was therefore not necessary for the worker to demonstrate that his daily routine as a baker for one employer was exactly the same as with another.”
The worker submits working in the two supermarkets would not be radically different, the “deeming provisions” would be engaged.[48]

Consideration – Grounds Nos. 1, 2 and 3

[48] Worker’s submissions, A2, [18]–[19].

How the claim was alleged and the parties’ positions

The worker’s solicitors made a claim for lump sum compensation, in respect of 17 per cent whole person impairment, on Employers Mutual Ltd (the insurer) by letter dated 23 June 2021.[49] It relied on Dr Bodel’s report dated 29 April 2019 and the Certificate of Determination in the previous proceedings. It described the claim as being “pursuant to s 15” of the 1987 Act with a deemed date of injury of 12 June 2019. The Application to Resolve a Dispute dated 1 July 2022, like the Amended Application to Resolve a Dispute dated 21 November 2022, asserted the same deemed date of injury. Both of these documents described the “Injury Description/Cause of Injury” as follows:
“The injury was sustained as a result of the claimant’s employment. He developed a dorsal wrist ganglion on his left wrist, tenosynovitis with involvement of the compartments on the dorsum of the wrist. He also experienced median nerve compression of the left wrist, with the same symptoms occurring on the right wrist. Please see attached [Medical Assessment Certificate] dated 12 January 2022 as to further details of the injury.”
[49] ARD, p 14.
In opening the case, the worker’s counsel described it as “a disease case as a result of nature and conditions” and agreed it was “a disease case within sections 15 and 16”.[50]
[50] T 5.1–7.
The parties’ submissions were largely in writing. The worker’s submissions dated 28 October 2022 described the institution of the previous proceedings, against Coles, as “legally erroneous”. The worker referred to the award in favour of Coles in the previous proceedings, which his submissions described as “correctly” given. The worker accepted that Woolworths was not a party to the previous proceedings and was “not bound” by it. The worker submitted that the Commission, “as a matter of comity”, should follow the previous decision, which was “clearly right”, as a “legal precedent”.[51]
[51] Worker’s submissions at first instance, 28/10/22, [2]–[3].
Woolworths’ submissions dated 16 November 2022 said that “injury remains in dispute and the [worker’s] submissions do not deal with injury”. Woolworths submitted injury to the wrist was denied pursuant to ss 4(a) and (b) together with s 9A. It submitted: “The Member must be bound to accept the position that there was no injury suffered, thus it is submitted that s 15/16 of the Act are not required to be determined.” It also submitted there was “no election as to whether this matter is a disease of gradual process, or an aggravation of a disease”. It submitted the Member must determine if the worker sustained an actual injury pursuant to ss 4 and 9A before there is a determination as to ss 15 or 16. It submitted the worker did “not address this fundamental flaw in the case”. Woolworths repeated that it was not a party to the previous proceedings. It submitted the determination in the previous proceedings made it clear that injury pursuant to ss 4 and 9A was not in dispute in the previous proceedings. It submitted the evidence did not support a finding of ‘injury’ against Woolworths.[52]
[52] Woolworths’ submissions in reply, 16/11/22, [2]–[10].
The worker’s further written submissions at first instance, dated 21 November 2022, said that ss 4 and 9A of the 1987 Act had not been overlooked, rather those sections were “irrelevant”, those provisions “apply to Coles – not Woolworths”. The worker submitted the injury occurred “for the most part in the employ of Coles and that is where ss 4 and 9A apply”. It submitted:
“Once the disease injury process is in train, at that point in time (when the worker was working for Coles) ss 4 and 9A are engaged – [they] do not need to be engaged again and logically, they cannot be, because one could not have two ‘main’ contributing factors as required by s.4 for example.”
Woolworths lodged further submissions in reply dated 14 December 2022. It repeated its submission that ‘injury’ pursuant to s 4 must be proved, before ss 15 and 16 are engaged to determine a deemed date of injury and the employer which is liable to pay compensation. It submitted ss 15 and 16 were not determinative of injury.[53]
[53] Woolworths’ further submissions in reply, 14/12/22.
Woolworths’ submission, that the Member did not decide the question of whether the worker suffered ‘injury’ pursuant to s 4(b) of the 1987 Act, is correct. The worker argues it was unnecessary that he establish ‘injury’ within the meaning of s 4 of the 1987 Act, as the case involved ss 15 and 16 of the 1987 Act.
Woolworths, at first instance, referred to the running of the previous proceedings against Coles (No. 992/20). Woolworths submitted that Coles accepted the worker suffered a left wrist injury in its employ. The reasons in the previous proceedings at [2] said (in part):
“There is no issue between the parties that the injury is in the nature of a disease process caused by the nature and conditions of [the worker’s] employment, or alternatively an aggravation to that disease process. He later developed similar problems with his right wrist.”

Resolution of the ‘injury’ issue

Woolworths on appeal submits there was no accepted injury with respect to Woolworths.[54] Woolworths submits the previous proceedings did not involve it.[55] This is true; Woolworths was not a party to those proceedings. It is difficult to see how Woolworths can be bound by a finding of ‘injury’ in proceedings in which it was not a party. The situation would have been different if both Coles and Woolworths were joined as employers in the previous proceedings, but they were not.
[54] Woolworths’ submissions, [11.2].
[55] Woolworths’ submissions in reply, 16/12/22, [6].

In Crisp v Chapman[56] Mahoney AP said:
“It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom the compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred and accordingly that section 9(1) had been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4. However, section 15 applies essentially in the case of an injury of the second kind to which I have referred [a work-caused disease] and section 16 to an injury of the third kind [a work-aggravated disease]. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in section 4.”[57]
[56] (1994) 10 NSWCCR 492 (Crisp).
[57] Crisp, 495.
I note s 4(b)(ii) of the 1987 Act, since the commencement of the Workers Compensation Legislation Amendment Act 2012, requires that employment be the ‘main contributing factor’ to the aggravation, etc (see [32] above).
In Gales v Lovett, McCracken & Bray Pty Ltd,[58] Hodgson JA (Ipp JA and Hoeben J agreeing) said that Alto Ford Pty Ltd v Antaw[59] “does not support a proposition that s 15(1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date”.
[58] [2008] NSWCA 171, [32].
[59] [1999] NSWCA 234; 18 NSWCCR 246.
Consistent with the above, Roche DP in Department of Ageing, Disability and Home Care v Findlay (a ‘disease’ case) said: “The Commission determines whether a worker has received ‘an injury’ by applying s 4, not s 15 or s 16.”[60]
[60] [2011] NSWWCCPD 65, [56].
In Watts Peterson Automotive Pty Ltd v Peterson[61] Burke J said:
“Section 33 vests a right to compensation where a worker suffers incapacity as a result of injury. Section 4 defines the various categories of injury which might relevantly afflict a worker. Depending on which category of injury in section 4(b) is involved, sections 15 and 16 prescribe some of the formalities relevant to the liability arising under section 33. The latter sections do not provide the worker with a right to compensation but facilitate the implementation of the right arising from section 33.”[62]
[61] [1994] NSWCC 30; 10 NSWCCR 653 (Peterson).
[62] Peterson, 661B.
It follows that Woolworths’ point, that the statement of issues (quoted at [37] above) was erroneous, has merit. The requirement that ‘injury’ be proved was not simply a requirement under ss 15 and 16. The Member’s reasoning on ‘injury’ in the current matter is summarised at [14] to [19] above. The Member reviewed authorities that dealt with proof of a ‘disease’ injury by reference to ss 15 and 16.[63] The Member said it was made clear that the worker’s case was “founded in the disease provisions”, ss 15 and 16. The Member noted that injury pursuant to s 4(b)(ii) of the 1987 Act “includes the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, etc”.[64]
[63] Reasons, [91]–[95].
[64] Reasons, [84].
The Member at [96] and [98] of the reasons said:
“96. Applying the above line of authority, it is not necessary to delve into the specific work carried out by the [worker] with [Woolworths]. Rather, it is simply enough that the employment is to the nature of which the disease is due. After leaving Coles, the [worker] continued to carry out work as a baker with [Woolworths]. There is no basis upon which to draw sufficient distinction between the work with Coles and with [Woolworths]. Notwithstanding a reduction in heavy tasks and lifting, longer breaks and a less busy stall, the relevant enquiry for the Commission is whether the work with [Woolworths] is employment ‘to the nature of which’ the disease is due.
…
98. I am of the opinion that the employment with [Woolworths] was of the same nature to that which he carried out with Coles.”
The above analysis was undertaken in the context of ss 15 and 16 of the 1987 Act. It will be observed the reasoning goes to whether the requirements of section 15 are satisfied, injury “of such a nature as to be contracted by a gradual process”. The worker’s submissions on appeal do not argue that the issue of ‘injury’ within the meaning of s 4(b) was determined. The worker submits that the test in s 4(b)(ii) never arose.[65]
[65] Worker’s submissions, A2, [16].
The worker does not, on appeal, repeat his argument that the Member should have applied the decision of the Member who decided the previous proceedings, on the basis of the doctrine of comity. The finding on ‘injury’ in the previous proceedings was essentially one of fact. In Comino v Kremetis[66] Chen J said of the doctrine: “… the practice is limited to questions of law, and has no application to questions of fact” and “the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.” This decision was applied by Wood DP in Secretary, Department of Education v Dawking.[67]
[66] [2023] NSWSC 32.
[67] [2023] NSWPICPD 23.
Having regard to the decisions discussed above, I accept Woolworths’ submission that it was necessary, if the worker were to succeed in the matter, that he establish ‘injury’ within the meaning of s 4. Woolworths was not a party to the previous proceedings. The Member (correctly) did not approach the matter on the basis that any finding or concession of ‘injury’ in the previous proceedings had application in the current proceedings.[68] It was not sufficient to deal only with ss 15 and 16 in this regard. I accept Woolworths’ submission that the failure to decide the issue of ‘injury’ in accordance with s 4(b) of the 1987 Act constitutes appealable error. It vitiates the Member’s findings on ‘injury’.
[68] Reasons, [28].
This is sufficient to deal with Grounds Nos. 1 and 2 of Woolworths’ appeal, which succeeds. This is sufficient that the Certificate of Determination (as amended) dated 28 March 2023 should be set aside. I will deal with the remaining issues in the event that I should be wrong in this regard.

Resolution of the construction issue

Ground No. 3 refers to the construction and application of ss 15 and 16 of the 1987 Act. Woolworths does not raise any well-defined issue in this regard. It refers to the need to determine injury pursuant to s 4 before ss 15 and 16 become relevant. On a factual basis, it argues against the proposition that employment with Woolworths was employment to the nature of which the disease was due. This includes reference to the worker’s evidence regarding the nature and severity of his symptoms and whether the symptoms changed while the worker was employed by Woolworths.
The worker refers to the factual submissions made by Woolworths. It submits these matters would be relevant if the ‘main contributing factor’ test applied, but it did not. The worker submits it was not necessary that the two jobs (Coles and Woolworths) be “exactly the same. It is only necessary that the disease process be due to the later employment.” I note this submission misstates the test the worker was required to satisfy, if s 15 applied. He did not need to establish that the disease process was due to the later employment. In a passage from Smith v Mann, quoted by the Member in his reasons at [93], Starke J said:
“It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise ‘out of the particular service of the particular employer sued’. It is enough if the disease is ‘incidental to that class of employment so that it can be attributed to service therein’.”[69]
[69] Smith v Mann, 443.
The argument that s 4 needs to be satisfied, prior to ss 15 and 16 becoming relevant, is already raised and dealt with under Grounds Nos. 1 and 2 above. Woolworths’ factual arguments must be considered in the light of s 352(5) of the 1998 Act and the principles briefly summarised at [29] to [31] above. The Member set out the worker’s evidence in his statements, dealing with his duties while working with Coles, and contrasted this with his relatively lighter duties at Woolworths. The Member described the worker’s opinion of “his work at Woolworths, and the legal consequences”, as “not relevant” to the matters to be determined.[70]
[70] Reasons, [88]–[90].
The Member referred to a number of relevant authorities, in particular the judgment of Dixon CJ in Bourne, where his Honour said:
“… the purpose of using the words ‘due to the nature of the employment’ and not ‘due to the employment’ was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man.”[71] (emphasis added)
[71] Bourne, 38.
Woolworths’ submissions on this issue direct themselves to “employment to the nature of which the disease was due”. That phrase is employed in s 15 of the 1987 Act. The Member’s reasons referred to the same test and to the difference between the duties at Woolworths as opposed to Coles. The Member referred to “a reduction in heavy tasks and lifting, longer breaks and a less busy stall”. The Member’s reasons said the worker “continued to carry out essentially the same duties, albeit they were somewhat less strenuous in nature”. He made a factual finding that “employment with [Woolworths] was of the same nature to that which he carried out with Coles”. This conclusion was open on the evidence and consistent with authorities such as Bourne and Smith v Mann on which the Member relied. Woolworths has not, in Ground No. 3, identified error within the meaning of s 352(5) of the 1998 Act.
The error alleged in Ground No. 3 is not made out.

Ground No. 4

Failing to provide proper reasons considering the evidence.

Woolworths’ submissions

Woolworths submits the Member made “no mention of the volumes clinical regards regarding injury and diagnosis, located in the ARD and with the late documents [sic]”. It submits these supported a diagnosis of “doso-radio Ganglion (re current) since at least 19 August 201[sic]” and “De Quervain’s tenosynovitis left wrist since at least 17 February 2012”. It submits these injuries predate the employment with Woolworths. Woolworths submits the Member failed to consider “over 911 documents produced under a direction from the Coles group”. It describes the previous proceedings as “a previous claim, which was run by the [worker] regarding the same injury, and when injury specifically is in issue”. It submits the Member “ought to have at least noted his consideration of the evidence. He did not.”[72]
[72] Woolworths’ submissions, A2, [14.1]–[14.3].
Woolworths submits the Member failed to reconcile the differing opinions of Dr Bodel, who had “clearly stated that it was the 17 years of employment with Coles group which caused his injury”.[73]
[73] Woolworths’ submissions, A2, [14.4].
Woolworths submits there were entries in the handwritten clinical notes that referred to mental health difficulties. Woolworths submits caution was needed in accepting the worker’s versions of events and histories for this reason. It submits the Member did not deal with this.[74]
[74] Woolworths’ submissions, A2, [14.5].
Woolworths submits the deemed date of injury given by the Member was 12 August 2019, the same date pleaded by the worker and accepted in the previous proceedings. It submits the worker did not make a claim on Woolworths until 23 June 2021. It submits the date 12 August 2019, as against Woolworths, is not supported by evidence. It submits the Member fell into legal error in failing to consider this issue.[75]
[75] Woolworths’ submissions, A2, [14.6]–[14.7].

Worker’s submissions

The worker submits there was identifiable pathology before Woolworths’ period of employment. It was a disease process due to both Coles and Woolworths, with Woolworths being liable as the last in time. It submits s 4(b)(ii) did not require consideration for this reason, the injury already existed. It submits that if Woolworths did not make the concession here made, that the injury existed before Woolworths’ employment, “it may have been necessary to prove injury as such”. The worker submits Woolworths cannot on one hand complain that s 4 is not made out, and on the other hand submit “a pathological course had begun with a work nexus with a prior employer”.[76]
[76] Worker’s submissions, A2, [20]–[21].
The worker submits the psychological injury was of no possible relevance.[77]
[77] Worker’s submissions, A2, [22].
The worker refers to the submissions about the deemed date of injury. It submits this is a clerical error at its highest. A deemed date was alleged, the present proceedings are against Woolworths, the deemed date attaches liability to them. The worker submits Woolworths consented to the amended date, 12 June 2019, from the Amended Certificate of Determination.[78]
[78] Worker’s submissions, A2, [23]–[24].

Consideration – Ground No. 4

Section 294(2) of the 1998 Act provides that “[a] brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination”.
Subclauses (2) and (3) of r 78 of the Personal Injury Commission Rules 2021 provide:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In Secretary, Department of Education v Dawking,[79] Gleeson JA (Mitchelmore and Kirk JJA agreeing) said that the statutory obligation was to be considered in light of the issues raised for consideration by the parties, referring to Brambles Industries Ltd v Bell.[80] In Fisher v Noncomformist Pty Ltd,[81] the Court of Appeal (Kirk JA, Meagher JA and Simpson AJA agreeing) left open the question of whether a member of the Commission is also under the same duty as a judge to give reasons. The standard applicable to a judge was described as that summarised in the following passage from Ming v Director of Public Prosecutions (NSW):
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[82]
[79] [2024] NSWCA 4, [69]–[70].
[80] [2010] NSWCA 162.
[81] [2024] NSWCA 32 (Fisher).
[82] [2022] NSWCA 209; 109 NSWLR 604, [43], referred to in Fisher, [139].
Woolworths submits the Member erred in failing to consider “over 911 documents” produced by Coles pursuant to a direction. It essentially submits there was evidence in the documents of the conditions of De Quervain’s tenosynovitis and recurrent ganglion dating from before the employment with Woolworths. As the worker correctly submits, it is hardly surprising that these conditions were present before the employment with Woolworths. This was consistent with the case brought by the worker. Woolworths otherwise makes no meaningful submission of what relevant evidence the Member failed to deal with by not referring to these documents. The Member referred to these documents in his reasons at [30]. He acknowledged that documents, comprising 1,524 pages, were produced a few days prior to the hearing. The Member said he would consider these if they were referred to in addresses or written submissions. Woolworths’ submissions on this ground do not identify submissions before the Member that directed him to any specific part of this voluminous material. I note there was a Direction that parties indicate the particular documents, from the voluminous material produced, that was relied on (see [4] and [8] above). Woolworths’ submissions do not suggest there was any such specific material that was brought to the Member’s attention and was not dealt with. The Member did not, in those circumstances, err in failing to deal with the material.
The nominated deemed date of injury, in the Amended Certificate of Determination dated 28 March 2023, is 12 June 2019.[83] I note this was the date of claim against Coles.[84] It was also the pleaded date of injury in the ARD. The worker’s claim form dated 3 June 2021[85] described the deemed date as 12 June 2019 and said: “At the deemed date of injury being 12 June 2019, I was employed by Woolworths”.[86] Woolworths’ submissions on this point do not explain its significance (if any) to the issues between the parties. The worker submits the deemed date of 12 June 2019 was consented to by Woolworths. Woolworths has not lodged submissions in reply challenging that.
[83] Reasons, [117].
[84] Worker’s Appeal Application, A1, Chronology.
[85] ARD, pp 6–13.
[86] ARD, p 8.
Woolworths’ submissions in support of Ground No. 4 of its appeal fail to identify error involving the adequacy of the reasons. Ground No. 4 fails.
It follows from the outcome of Grounds Nos. 1 and 2 of Woolworths’ appeal that there was error in the fact-finding process, which vitiates the Member’s findings on ‘injury’. The consequence is that the matter requires re-determination. It is appropriate that I deal with the worker’s appeal, in the event that I am wrong in the view I formed regarding the success of Grounds Nos. 1 and 2 of Woolworths’ appeal.

THE WORKER’S APPEAL – A1-W4121/22

Ground No. 1

The learned [M]ember erred in fact by finding that the [worker] had not established that he suffers from a disease of gradual onset in his right upper extremity.

Worker’s submissions – Ground No. 1

The worker submits the left arm was the first to become symptomatic. Surgery to the left sided ganglion did not assist. The worker relied on his right hand at work due to the left-sided symptoms. The worker refers to Dr Bodel’s assessment of three per cent whole person impairment of the right arm and quotes from the doctor: “The nature and conditions of his work over many years has caused the aggravation, acceleration, exacerbation and deterioration of that disease process as I have indicated.” The worker submits this applied to both arms as Dr Bodel assessed rateable impairment in respect of both.[87]
[87] Worker’s submissions, A1, [13]–[14].
The worker refers to the Medical Assessment Certificate of Dr Anderson dated 12 January 2022. Dr Anderson said that the worker “cannot use his left hand to operate the control lever and has to reach across to do this with his right hand”. The worker’s submissions refer to Dr Haig’s report dated 28 October 2021. Dr Haig excluded work causation completely. The worker submits his opinion did not meaningfully counter Dr Bodel’s opinion. The worker submits that, on the probabilities there was a compensable injury to the right arm.[88]
[88] Worker’s submissions, A1, [15]–[18].

Woolworths’ submissions – Ground No. 1

Woolworths submits Dr Bodel did not deal with the legal test of injury to the right wrist. It was open to the Member to reject Dr Bodel’s opinion. It submits the evidence did not satisfy the test in s 4(b)(ii) of the 1987 Act.

Worker’s submissions in reply – Ground No. 1

The worker submits this ground challenges the Member’s factual conclusion on the right arm. It is necessary that Woolworths grapple with the evidence, which it has not done.

Consideration – Ground No. 1

The worker’s submissions on this ground essentially consist of an attempt to re-argue the issue of injury to the right arm, on which the worker failed at first instance. There is no meaningful attempt to identify error within the meaning of s 352(5) of the 1998 Act.
The worker’s statement dated 31 January 2019[89] was given at a time when he had left the employ of Coles and commenced with Woolworths.[90] It made no reference to injury or symptoms involving the right arm. The only reference to the right arm in that statement is at [53], where it refers to relying on the right hand to spare the left. The worker also relies on an undated statement in which he describes relatively onerous duties at Coles. He there describes the duties at Woolworths as “lighter work” and gives examples of this. The worker also states:
“I saw Dr Bodel on 29 April 2019. The symptoms I was experiencing at that time were the same symptoms that I had when I was employed at Coles.”[91]
[89] ARD, pp 1–4.
[90] Worker’s statement 31/1/19, [51].
[91] ARD, p 5.
The worker’s statement evidence did not suggest he suffered any injury or symptoms involving the right arm. Dr Bodel’s history on 29 April 2019 referred to “a lot of pain in the wrists”. The doctor’s summary of injuries referred to “[c]onsequential pain and stiffness in the region of the right wrist and hand”. Dr Bodel said the worker “did develop a gradual onset of right wrist and hand pain because he has overused that side to protect the injured left side”.[92] Dr Bodel’s diagnosis recorded “mild similar symptoms on the right hand side but they are not as florid as on the left side”.[93] Dealing with any causal relationship Dr Bodel said:
“There is a direct causal link between the nature and conditions of this gentleman’s work and his ongoing complaints.
There is no specific ‘accident’ as such but this claim is clearly a nature and conditions claim associated with the nature of work in general.”[94]
[92] ARD, pp 83–85.
[93] ARD, p 87.
[94] ARD, p 88.
In a supplementary report dated 27 May 2022 Dr Bodel referred to the opinion of Dr Haig that “this gentleman’s pathology in the wrists is all constitutionally based”. Dr Bodel said:
“… there has certainly been no specific injury on the right hand side apart from the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative process which as yet has not been formally identified. … I never saw an MRI scan of the right wrist to make a pathological diagnosis on the right side.”[95]
[95] ARD, pp 93–94.
Dr Haig, reporting to Woolworths on 28 October 2021, recorded that “[o]n the right side he complains of pain in the wrist if lifting something even if it is light. There is no pain otherwise.”[96] Dr Haig said of the left sided ganglion: “This ganglion I believe was a constitutional/degenerative matter and I do not believe it was work-related” and “I do not believe his condition of ganglion and recurrent ganglion were due to his work, either at Coles or Woolworths”. Dr Haig referred to a question regarding whether the right-sided problems were a consequence of those on the left: “I do not subscribe to the concept of ‘consequential pain …’ and I am unaware of any evidence that this is a recognised entity”.[97]
[96] Reply, p 4.
[97] Reply, p 6.
The worker’s case on injury to the right arm was not specifically dealt with in his statements. It was not supported by Dr Haig. The only medical support was from Dr Bodel who attributed the right-sided problem to the aggravation, etc of “some underlying degenerative process which as yet has not been formally identified”. The Member preferred Dr Bodel’s opinion to that of Dr Haig regarding injury to the left arm. He referred to the basis on which Dr Bodel supported the right-sided allegation of injury. The Member noted Dr Bodel had not identified pathology in the right wrist with any precision and had not seen an MRI of the right wrist to make a pathological diagnosis regarding the right side. The Member concluded that it would be speculative to decide the worker suffered from a disease of gradual onset in relation to the right wrist. For reasons discussed above, dealing with Grounds Nos. 1 and 2 of Woolworths’ appeal, it was necessary that the worker establish ‘injury’ to the right arm within the meaning of s 4 of the 1987 Act.
It would not assist the worker if I formed the view that a different result on this issue was preferable (see the authorities referred to at [29] to [31] above). The Member’s finding on this issue was open to him and was explained. The worker’s submissions have not identified relevant error within the meaning of s 352(5) of the 1998 Act. Ground No. 1 of the worker’s appeal grounds fails.

Ground No. 2

The learned [M]ember failed to give adequate reasons

Worker’s submissions – Ground No. 2

The worker submits “it is unclear how the factual conclusions were properly reached”. The worker submits “it is the same mix of constitutional predisposal and exposure to nature and conditions of work in relation to both upper extremities. The right, therefore, should not be treated different.”[98]
[98] Worker’s submissions, A1, [19]–[20].

Woolworths’ submissions – Ground No. 2

Woolworths submits the reasons clearly showed why the Member was not satisfied that injury to the right wrist was established. The Member referred to the worker’s reliance on Dr Bodel’s evidence.

Consideration

The worker seeks to re-argue the Member’s factual conclusion on ‘injury’ to the right arm more than to deal with the adequacy of the reasons. The worker submits it is “unclear how the factual conclusions were properly reached” (emphasis added). The worker challenges the reasoning on ‘injury’ to the right arm – the “right, therefore, should not be treated different [to the left]”. The Member identified points of distinction between the evidence supporting each of the two arms (see the reasons at [109]). The arguments the worker raises in this ground are factual, and subject to the limitations in s 352(5) of the 1998 Act.
The fundamental issue in the matter went to whether the worker had succeeded in establishing ‘injury’ to the arms pursuant to the ‘disease’ provisions. The Member set out ss 4, 15 and 16 of the 1987 Act. He quoted from Woolworths’ dispute notice dated 2 December 2021 which outlined the basis of its defence. The Member summarised the submissions and the worker’s statements at some length. He referred to the decisions of Roche DP in Cameron and of Wood DP in Hay, in which the Deputy Presidents summarised a number of authorities dealing with the ‘disease’ provisions. The Member quoted from the reasons of Dixon CJ in Bourne. He gave specific reasons for not accepting the worker’s case on ‘injury’ to the right arm. The Member’s approach on this issue was open to him. Ground No. 2 of the worker’s grounds fails.

DISPOSITION OF THE APPEAL

The Member’s findings on ‘injury’ were made in the context of ss 15 and 16, without specific reference to the test in s 4(b) of the 1987 Act. Consequently, the Member’s findings on ‘injury’, for reasons given above in upholding Grounds Nos. 1 and 2 of Woolworths’ appeal, were vitiated. The appropriate course is that the Certificate of Determination be revoked and the matter be remitted to another Member for re-determination.
In Kelly v Glenroc Pastoral Company Pty Ltd[99] Sheller JA referred to the operation of ss 15 and 16 of the 1987 Act:
“[Section 15] is concerned with an occupational or industrial disease contracted by a gradual process. Dr Eagleton, as I understand him, would accept that both lumbar spondylosis and disc protrusion are gradual process diseases. But they are degenerative diseases and as such not shown to be due to shearing although as Dr Eagleton acknowledged the appellant’s work as a shearer played a major role, over a long period of time, in causing the degenerative changes. The medical witnesses described an aggravation, acceleration, exacerbation or deterioration of degenerative disease such as is covered by s 16.
S 16 elucidates the language of s 15. S 15 is concerned not with the worsening of a degenerative disease but with diseases due to the nature of the employment in which the worker was employed. Fisher v Hebburn (1960) 105 CLR 188 stands for the proposition that to recover under s 15 against the last employer for a gradual process disease the worker must prove that the disease was contracted in the course of employment, though not necessarily by the last employer, and was one to which employment was a contributing factor, language taken from the definition of injury in s 6(1) of the 1926 Act which corresponds relevantly, with s 4(b)(i) of the 1987 Act.”
[99] [1994] NSWCA 162; 10 NSWCCR 178.
It follows that an alleged ‘injury’, within the meaning of the ‘disease’ provisions, will not simultaneously satisfy both ss 15 and 16 of the legislation. The decision in the previous proceedings was based on a finding that the worker’s injury fell within s 15 of the 1987 Act.[100] In the current proceedings, the Member expressed a view that employment with Woolworths “was of the same nature to that which he carried out with Coles”. The Member made the following findings at [103] to [104] of his reasons:
“103. … I prefer the opinion of Dr Bodel that insofar as the [worker’s] left wrist is concerned, he suffers from a disease of gradual onset, as diagnosed by Dr Bodel which has been aggravated, accelerated, exacerbated and resulted in deterioration as a result of the [worker’s] work duties.
104. I am also satisfied that, insofar as the left wrist is concerned, the [worker’s] employment was the main contributing factor to the contracting of the disease.”
[100] ARD, pp 17–22, [19]–[26].
On the face of it, these findings may suggest injury on the basis of both ss 15 and 16. The Member’s ultimate finding of injury appears to have been on the basis of a ‘disease’ of gradual onset which was aggravated.[101] This was not raised by the parties and is not determinative of this appeal. As the matter requires re-determination in any event, it is preferable that this be brought to the parties’ attention.
[101] Reasons, [112]–[113].

ORDERS ON DISPOSITION OF THE APPEALS

The Certificate of Determination (as amended) dated 28 March 2023 is revoked.
The matter is remitted to a different member for re-determination.

Michael Snell
DEPUTY PRESIDENT

29 February 2024