Corestaff Australia NSW Pty Ltd v Lashbrook - [2024] NSWPICPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Corestaff Australia NSW Pty Ltd v Lashbrook [2024] NSWPICPD 9
APPELLANT:	Corestaff Australia NSW Pty Ltd
RESPONDENT:	Jack Lashbrook
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W7942/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	9 February 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the Member’s decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The Member’s Certificate of Determination dated 17 March 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – it is not always necessary to precisely identify the pathological nature of the injury – Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 discussed – a delay in report of symptoms is not generally of itself determinative – Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 – appeal from a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Hall & Wilcox
Respondent:
Mr D Steiner, counsel
Main Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	17 March 2023

INTRODUCTION AND BACKGROUND

Mr Jack Lashbrook (the respondent) was employed by Corestaff Australia (NSW) Pty Ltd (the appellant) as an electrician. The respondent suffered injury in the course of his employment on 26 March 2020 in an electrical explosion that occurred while he was working on the exhaust jet fans located in the tunnel of Sydney’s West Connex road construction. The respondent claimed injuries to both eyes in the form of arc flashing, a right hip injury, and post-traumatic stress disorder. Liability for each injury was accepted by the appellant. The respondent subsequently asserted injury to his cervical spine, lumbar spine and right shoulder. The appellant denied liability for those injuries.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming lump sum compensation in respect of 21% whole person impairment, attributable to the accepted injuries together with the disputed injuries to his cervical spine, lumbar spine and right shoulder. The dispute came before a Member of the Commission and proceeded to arbitration. The Member determined that she was satisfied that the respondent suffered injuries to his cervical spine, lumbar spine and right shoulder as alleged and remitted the claim for whole person impairment to the President of the Commission for referral to a Medical Assessor.
The appellant appeals the Member’s determination that the respondent’s cervical spine, lumbar spine and right shoulder were injured in the accident.

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 have indicated that the appeal can be determined on the basis of the documents and the submissions made by the parties.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’, and WC3 – Presidential appeals and questions of law; the documents and submissions 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.

Whether the decision appealed against is interlocutory in nature

Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Both parties indicated that the decision of the Member was not interlocutory in nature and so leave to appeal was not required.
The Member’s Certificate of Determination recorded findings that the respondent suffered injury to his lumbar spine, cervical spine, and right shoulder and she remitted the matter to the President for referral to a Medical Assessor.
In DGL (Aust) Pty Ltd v Martino,[1] I reviewed a number of authorities relevant to a consideration of the question of whether a Member’s decision made in such circumstances was a final determination or interlocutory in nature. I determined that the decision was in fact an interlocutory decision and leave to appeal pursuant to s 352(3A) of the 1998 Act was required.
[1] [2023] NSWPICPD 30 (Martino).
In the present matter, neither party made submissions as to whether leave to appeal should be granted in the event that the decision was an interlocutory decision. I therefore issued a Direction, referring the parties to Martino and seeking submissions from the parties as to whether leave should be granted if the decision was determined to be an interlocutory decision.

The appellant’s submissions

The appellant submits that, firstly, in its view the decision in Martino was wrong and asserts that a decision in respect of injury in a claim for lump sum compensation is final. The appellant submits that in P & O Ports Limited v Hawkins,[2] Roche DP determined that a consideration of the deemed date of injury was interlocutory in nature. The appellant submits that Hawkins should be followed. In the alternative, the appellant submits that leave should be granted because it is necessary and desirable for the effective determination of the dispute.
[2] [2007] NSWWCCPD 87 (Hawkins).

The respondent’s submissions

The respondent submits that the decision in Martino is correct and points out that the same approach was followed by Phillips P in Secretary,New South Wales Department of Education v Connolly[3] and Nomchong SC ADP in Inner West Council v BFZ.[4] The respondent submits that the decision in this matter is clearly interlocutory because it does not finally dispose of the rights of the parties. The respondent opposes the application for a grant of leave to appeal the decision on the basis that the granting of leave is not necessary or desirable in order to effectively deal with the dispute in a timely manner. The respondent submits that a grant of leave would not be useful, it would be contrary to the Parliament’s purpose for restricting appeals, and it would further delay the determination of his entitlements.
[3] [2023] NSWPICPD 38.
[4] [2023] NSWPICPD 62.

Consideration

The appellant’s reliance upon Hawkins is misplaced. That appeal was determined in the context of a different statutory framework in which leave to appeal was required in every appeal. Roche DP determined that the relevant decisions were preliminary or interim decisions and the legislation did not allow for an appeal from a determination of an interlocutory nature.
The appellant offers no persuasive argument as to why the decision in Martino is wrong. As the respondent submits, the decision has been followed in other Presidential decisions. Additionally, the appellant’s position is contrary to the observations of McColl JA (with Tobias JA agreeing) in South Western Sydney Area Health Service v Edmonds,[5] which involved an appeal from a decision in favour of the worker that the worker had suffered lumbar and left knee symptoms as a result a right knee injury. McColl JA noted that the worker had not yet undergone an assessment of her permanent impairment. Her Honour determined that leave to appeal was required because the decision was interlocutory in nature.
[5] [2007] NSWCA 16.
I do not accept that Martino was wrongly decided. The appellant therefore needs leave to proceed with the appeal in accordance with s 352(3A) of the 1998 Act and, in order to grant leave, I must be of the opinion that determining the appeal from the interlocutory decision is necessary or desirable for the proper and effective determination of the dispute.
The referral to the Medical Assessor includes a request for the assessment of the disputed alleged injuries. If the appeal does not proceed at this interlocutory stage, those assessments will take place and a Medical Assessment Certificate will be issued. If the appeal is then lodged and succeeds, the Medical Assessment Certificate will require amendment which would involve further procedures taking place in the Commission. I am also mindful that there has already been some delay in the progress of the respondent’s claim occasioned by the filing of the appeal.
I am of the view that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined.
Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act is therefore granted.

THE EVIDENCE

The respondent’s statement evidence

The respondent completed a witness statement form on the day of the injury.[6] The respondent described in detail the incident on 26 March 2020. Relevantly, the respondent was asked to indicate the nature of his injury on a diagram of the human body. He indicated by drawing an arrow to the head, circling the eyes, and wrote “Arc flash.”
[6] Reply to Application to Resolve a Dispute (reply), pp 6–12.
The respondent completed a worker’s injury claim form on 13 October 2020.[7] He described what had occurred in the incident as follows:
“While switching the Jet fan into reverse direction the switchboard exploded in front of my face and blew me back into the row of switchboards behind me. The industrial busbar also melted above me and molten metal burnt my head.
I’ve had extensive UV exposure due to the size of the explosion and significant damage to my upper right leg due to the impact of hitting the switchboard behind. Also suffering from PTSD”.[8]
[7] Reply, pp 13–19.
[8] Reply, p 15.
The respondent made a statement dated 23 November 2020.[9] He provided a background of his experience as an electrician and the circumstances in which he became employed by the appellant. He described his prior health as very good and denied any major illnesses or injuries. He said that, on the day of the injury, he was asked to run the exhaust jet fans that were located inside the tunnel and were designed to extract the fumes from the tunnel when they were in operation. He said he was required to test the fans in the forward motion and in reverse. The respondent advised that when he put the third fan into reverse mode a loud bang and a very bright flash came from the switchboard which was about 20 centimetres directly in front of him. He said that melting metal dripped onto his face and neck and the force of the explosion sent him a metre backwards onto a row of switchboards, hitting his right hip on the switchboards and causing immediate right hip pain and painful headache.
[9] Application to Resolve a Dispute (ARD), pp 1–7.
The respondent reported that his eyes were damaged, and he went into shock. He said there was a lot of smoke and an electrical fire, so he needed to get out of the area and managed to crawl to another room. He said he went to the lunchroom and began to write down what had occurred, but he went into a state of shock, so he was taken to hospital.
The respondent indicated that he was at the hospital for some hours, no damage to his eyes was detected and he was given eye drops and antibiotics before being sent home. He stated that he continued to experience sensitivity to light causing severe headaches and he stayed at home for a few days in darkness.
The respondent said he returned to work and completed an incident report but was unable to work because of the condition of his eyes and pain in the right hip, so, after a few weeks, he flew home to his parents’ place in Queensland. He complained of continuing problems with his eyes and described his ongoing psychological symptoms. He said he was being treated by Dr N Ameer Hamza, general practitioner and Mr Cobus Kleynhans, psychologist and was also receiving physiotherapy. He stated:
“I continue spending my time at home and have been able to do some work related study including my contractors licence. My eyesight is ok though I continue to feel a lot of irritation and pain in my eyes. My hip that was very badly bruised continues to cause me pain with tingling in my leg and up to my neck due to some nerve damage.”[10]
[10] Respondent’s statement dated 23 November 2020, [47], ARD, p 7.

Statement of Ms Karen Ann Kenney, Safety Adviser

Ms Karen Kenney gave a statement dated 14 December 2020.[11] She advised that she was called to the site on the day of injury and met with the respondent, who she said was a little shaken, but otherwise appeared fine. She said that she proceeded to take a statement from the respondent, but he appeared vague and suffering from shock, so she drove him to St George hospital. She said that during treatment he disclosed at the hospital that he had been exposed to an arc flash and that he suffered from pterygium, which caused red eyes. Ms Kenney confirmed that the respondent’s eyes appeared red. She said that when he was discharged, she drove him back to the site and took a statement from him.
[11] Reply, pp 31–37.
Ms Kenney stated that the respondent did not complain of any symptoms other than injury to his eyes as a consequence of the arc flash. She said that after the respondent made his statement, she drove the respondent home as it was almost the end of the working day. She indicated that on the following day the respondent rang and advised that his eyes were troubling him and he would not work that day. She said that he did not attend work the next day either and he was unable to be contacted.
Ms Kenney stated that the respondent eventually sent her a text at 3.30 pm that day advising that he had been in bed all day but denied to her that he required medical treatment. Ms Kenney further stated that the respondent’s supervisor reported to her that he had seen the respondent drinking and partying with a group of people the evening before.
Ms Kenney indicated that the respondent did not attend work on 30 March 2020, which was his next scheduled workday, but did attend on 31 March 2020 and was able to perform his normal work duties. She said that on 2 April 2020, the respondent sent her two photographs showing a bruise to his right hip, which he said was injured in the incident on 26 March 2020.
Ms Kenney advised that the contract to perform the work that the respondent was doing came to an end on 12 April 2020, he finished work that day, and the appellant had not heard from him since then.

The medical evidence

No issue arose before the Member or arises in the appeal as to the evidence pertaining to the respondent’s accepted psychiatric condition, right hip or eye injuries. It is thus not necessary to summarise that evidence, other than to mention the history recorded by Dr Alan Hilton, ophthalmologist, that the respondent did not seek treatment for his eye injuries earlier than September 2020 because he thought that his eyes would get better.[12] That history was a matter taken into account by the Member.
[12] Report dated 13 January 2021, p 2, ARD, p 18.

Clinical notes, Ormeau Family Practice

The clinical notes from the Ormeau Family Practice for the period 6 May 2020 to 6 November 2020 were in evidence.[13] Various entries recorded eye symptoms, headaches and psychological issues, as well as other complaints which were not relevant to the injury. On 1 June 2020, the respondent complained of headaches associated with increased head movement. The first reference to the injury was on 3 September 2020, when Dr Shimaa Aref noted that the respondent had been involved in an accident at work “a few months ago” and complained of difficulty sleeping, flash backs, and nightmares about the incident. On 10 September 2020, Dr Hamza described the injury as an arc flash from a blast at work and noted that the respondent injured his right leg when he fell, had developed post-traumatic stress disorder and continued to suffer from a painful and red eye.[14] On 15 October 2020, the respondent attended Dr Shafi Khan, who recorded the injury as an arc flash from a blast at work causing the respondent to be blown back onto a switchboard behind him, hitting his right leg and hip.[15] On 6 November 2020, Mr Enzzio Spruyt, physiotherapist, recorded “work injury, LBP, R hip.”[16]
[13] Application to Admit Late Documents (AALD), pp 17–24.
[14] AALD, p 21.
[15] AALD, p 22.
[16] AALD, p 23.

The Certificates of Capacity

A number of Certificates of Capacity provided by Dr Hamza were in evidence, dating from 15 October 2020 to 21 November 2022.[17] Relevantly, the Certificate dated 15 October 2020 recorded that the arc flash caused the respondent’s PTSD and damaged his eyes.[18] The next Certificate, which was dated 3 November 2020, noted arc flash to both eyes, right hip strain and bruising.[19] In a Certificate dated 6 August 2021, Dr Hamza recorded “Arc flash both eye, PTSD. Nerve Damage to S1/C8.”[20]
[17] Reply, pp 67–96.
[18] Reply, p 70.
[19] Reply, p 73.
[20] Reply, p 76.

Dr James Bodel, orthopaedic surgeon

Dr James Bodel examined the respondent on 4 April 2022 and provided an opinion dated 20 June 2022 at the request of the respondent.[21] He noted that the respondent suffered an injury to his eyes (pterygia), injury to the neck and both shoulders and psychiatric symptoms. He took a brief history of the injury, noting that the respondent was thrown backwards, landing heavily, which caused pain in the back, right hip and buttock, as well as visual disturbance from an arc flash.
[21] ARD, pp 77–81.
Dr Bodel recorded that the respondent was taken to St George hospital complaining of back and right buttock and hip pain, as well as neck pain and injury to the eyes. Dr Bodel indicated that an assessment of the respondent’s eye condition was outside his area of expertise. He noted that neck pain, right shoulder and arm pain persisted, and the low back and hip symptoms were also continuing to affect the respondent. He recorded that the respondent had difficulty sitting and bending, twisting and lifting, particularly when trying to flex forward. Dr Bodel said that the respondent had consulted a psychiatrist in respect of psychological issues and a neurologist for his musculoskeletal injuries.
Dr Bodel performed a physical examination of the respondent. He noted that the respondent was uncomfortable sitting in a chair and rose slowly, there was right sided tenderness in the trapezius muscle at the base of the neck as well as reduced range of movement, mostly on rotation to the left. Dr Bodel also noted restricted range of right shoulder movement with right shoulder impingement and tenderness of the rotator cuff. He recorded tenderness at the right lumbosacral junction, muscle guarding and backache on forward flexion and reduced range of movement when bending. He observed that there was no impairment when straight leg raising and there was no nerve root irritability or signs of radiculopathy in the lower limbs.
Dr Bodel described the respondent’s injury as “serious”, causing injury to the neck, right shoulder and lower back. He said that the other remaining injuries were not in his area of expertise. He considered that the orthopaedic injuries were directly related to the mechanism of injury occurring on 26 March 2020. He recommended continuing conservative care in respect of the orthopaedic injuries.

Dr Bodel provided a supplementary report of the same date in which he assessed the respondent’s whole person impairment resulting from the injury.[22] He assessed the respondent as having 7% whole person impairment of his cervical spine (including an allowance of 2% for the effect of the cervical condition on the respondent’s activities of daily living). He assessed the respondent as suffering 5% whole person impairment of the lumbar spine and 6% of the right upper extremity (right shoulder), arriving at a total whole person impairment of 17%. He indicated that there was no pre-existing impairment and therefore no basis to make any deduction from the 17% whole person impairment.
[22] ARD, pp 82–84.

Dr Paul Robinson, orthopaedic surgeon

The appellant qualified Dr Paul Robinson to examine the respondent and provide an opinion in respect of the respondent’s orthopaedic injuries. He provided a report dated 27 July 2022.[23] He briefly described the mechanism of injury, which involved the respondent being thrown backwards and thrust into a control handle which struck him in the right hip, piercing his shirt and breaking his skin. He noted that the respondent also suffered a flash injury to his eyes. Dr Robinson said that the respondent complained of pain in his lower back and down his right leg into the toes of the right foot, as well as pain from the back into the neck and eye and down the right arm. Dr Robinson noted that the respondent had developed serious psychiatric problems.
[23] Reply, pp 39–48.
Dr Robinson referred to information from Dr Ameer Hamza, general practitioner and Mr Spruyt, physiotherapist, which he said had been provided to him by the appellant. He noted that the treatment provided to the respondent was in the form of soft tissue physiotherapy, joint mobilisation and an exercise program, with only minimal improvement. Dr Robinson also noted that the respondent had attended a Dr Sheikh, neurologist, whose reports had been provided by the appellant to him for review. He indicated that Dr Sheikh had performed nerve conduction studies, which were reported as normal, and no pathology was identified following tests involving the C7 and lumbar nerve roots. He referred to arrangements being made for the respondent to obtain further psychological and psychiatric treatment, as well as pain management with Dr N Chiang. Dr Robinson reviewed the clinical notes from the Ormeau Family Practice, relevantly noting that the first mention of the work-related accident was not until 3 September 2020 and that an injection into the right S1 nerve root on 7 May 2021 did not offer any relief of symptoms.
Dr Robinson recorded the respondent’s current complaints, which included symptoms in the hip, legs, right foot, shoulder and right arm, cervical pain extending to the right trapezius, the ear and the front of the right eye, photosensitivity to bright light and migraine headaches.
Dr Robinson performed a physical examination of the respondent and reviewed the results of a CT scan dated 24 February 2021 and MRI scans of the skull and spine dated 18 August 2021. He remarked that an assessment of the work-related injury to the eyes should be performed by an ophthalmologist. He formed the view that the respondent’s physical symptoms did not conform to any definite pathology, and, at that stage, the pathological cause of his symptoms was unknown. He observed that there was no evidence of abnormal illness behaviour and that it was difficult to provide further details of the treatment the respondent received because he had not received full reports of that treatment.
Dr Robinson diagnosed eye injuries and soft tissue injuries to the symptomatic areas with no evidence of radiculopathy, and attributed the injuries to the incident on 26 March 2020. He observed that the history of injury was consistent with the respondent’s presentation and there were no other factors affecting the respondent’s presentation. He was of the opinion that the cause of the symptoms was unknown and the respondent’s prognosis was guarded, given the length of time since the incident. Dr Robinson proceeded to assess the respondent’s capacity for work and necessity for treatment as a consequence of the injuries.
Dr Robinson provided a supplementary report on the same date as his substantive report.[24] He was of the view that the respondent’s condition had reached maximum medical improvement, save that the level of the respondent’s pain could improve with treatment, as indicated by his pain specialist. Dr Robinson assessed the respondent as having 5% permanent impairment of the lumbar spine, 5% of the cervical spine and 5% of the right upper extremity. He made no deduction from those impairments because there was no evidence of any pre-existing conditions or subsequent injuries. He confirmed that the respondent’s total whole person impairment was 15%.
[24] AALD, pp 9–12.
At the request of the appellant, Dr Robinson commented on the assessment made by DrBodel. He noted that Dr Bodel assessed 17% whole person impairment, that included 7% whole person impairment of the cervical spine, 2% of which was allowed because of the effect of the cervical condition on the respondent’s activities of daily living. Dr Robinson disputed that the activities of daily living were attributable to the cervical spine condition but considered that an allowance of 2% to account for the limitation on the respondent’s activities should be added to the assessment of the respondent’s right hip condition, which he was not asked to assess.
Dr Robinson provided a further report dated 3 January 2023, without having re-examined the respondent.[25] He confirmed that, in the incident on 26 March 2020, the respondent suffered injuries to his cervical spine causing ongoing pain but without causing radiculopathy, right shoulder injury, which was yet to be investigated, and lumbar symptoms. He further confirmed that the respondent’s employment was a substantial contributing factor to the injury, the respondent’s whole person impairment was 15% and there was no pre-existing condition and thus no deduction from that assessment.
[25] AALD, pp 13–16.

THE MEMBER’S REASONS

The Member noted that the respondent claimed 21% whole person impairment as a result of injuries to the cervical spine, lumbar spine, right shoulder, right hip, and both eyes, as well as psychological injury, all resulting from the incident on 26 March 2020. The Member referred to the notice issued by the appellant on 25 October 2022 pursuant to s 78 of the 1998 Act, in which the appellant disputed liability for the asserted injuries to the lumbar spine, cervical spine and right shoulder and accepted liability for injuries to the eyes, right hip and post-traumatic stress disorder. The Member noted that the only issues for determination by her were whether the respondent suffered the disputed injuries and whether his employment was a substantial contributing factor to those injuries.
The Member provided a detailed summary of the evidence before her, including the histories of injury recorded by Dr Alan Hilton, Dr Michael Steiner and Dr Wechsler, ophthalmologists. She referred to and summarised the submissions of the parties.
The Member proceeded to consider the issue of whether the respondent suffered the injuries alleged. She reproduced s 4 of the Workers Compensation Act 1987 (the 1987 Act) (the definition of “injury”) and s 9A of the 1987 Act (the requirement that the employment was a substantial contributing factor to the injury). The Member referred to the observations of Kirby P (as his Honour then was) in the Court of Appeal decision in Kooragang Cement Pty Ltd v Bates[26] in relation to the question of causation of injury, the consideration given by the High Court in Comcare v Martin[27] to Kirby P’s observations in Kooragang, and the principles considered by President Keating in Department of Education & Training v Ireland.[28]
[26] (1994) 35 NSWLR 452 (Kooragang).
[27] [2016] HCA 43 (Martin), [42].
[28] [2008] NSWWCCPD 134 (Ireland).
The Member observed that it was not in dispute and was clearly apparent from the evidence that the respondent was “impacted by an explosion at work on 26 March 2020”.[29] She compared the various histories recorded in the documentary material and the medical evidence and concluded that the various descriptions of the mechanism of injury were:
“broadly consistent with [the respondent’s] evidence that the explosion on 26 March 2020 occurred in front of his face and the force of the explosion was so significant that it caused him to be bodily thrown backwards, a distance of approximately 1m, against the row of switchboards which had been situated behind him.”[30]
[29] Lashbrook v Corestaff NSW Pty Ltd [2023] NSWPIC 112 (reasons), [82].
[30] Reasons, [84].
The Member noted that there was no evidence that contradicted the respondent’s description of events. She observed that the respondent’s evidence was that it was either his right leg or hip that impacted significantly on the row of switchboards, which was consistent with Ms Kenney’s evidence that the respondent sent her photographs of bruising to his right thigh. The Member remarked that the respondent’s history to the various treating doctors was also largely consistent with that description of injury and that the appellant had accepted that the right hip was injured. The Member referred to the respondent’s statement evidence that his right hip had been severely bruised and caused tingling into his leg and up to his neck, which the Member considered clearly encompassed symptoms in the respondent’s back.
The Member accepted that there were no contemporaneous complaints of the injuries disputed by the appellant. She described the delay in reporting the symptoms referrable to the disputed injuries as considerable and accepted that there were various opportunities during 2020 when the respondent was being treated for the accepted injuries when the respondent could have mentioned those complaints. The Member said, however, that the respondent did complain about those injuries after some time. The Member pointed to the evidence that Ms Kenney was given a photograph which showed bruising to the respondent’s right thigh, together with the entries in the general practitioner’s clinical records that recorded that:
(a)    on 1 June 2020, the respondent reported headache when movement of the head was increased;
(b)    on 3 September 2020, the respondent was diagnosed with post-traumatic stress disorder after an accident at work a few months previously;
(c)    on 10 September 2020, the respondent reported the injuries to his right leg, bruising over his right thigh, injury to the eye and post-traumatic stress disorder following an arc flash injury on 26 March 2020;
(d)    on 15 October 2020 the respondent described being blown backwards onto a switchboard behind him, hitting his right upper leg and hip and suffering an eye injury;
(e)    on 3 November 2020, the respondent complained of ongoing right hip pain, and
(f)    on 6 November 2020, the respondent complained of right hip and lower back pain as a result of injury on 26 March 2020.
The Member further referred to Certificates of Capacity dated 3 November 2020, in which injuries to both eyes and right hip strain with bruising were noted, and 6 August 2021 which noted “nerve damage to S1/C8”, both certificates nominating 26 March 2020 as the date of injury.
The Member referred to the histories, observations and opinions recorded by Dr Bodel and Dr Robinson. She quoted the evidence from both of those medico-legal specialists pertaining to the allegation of injury to the lumbar spine, right shoulder and cervical spine. The Member observed that the gradual report of injuries that the respondent had given over time was “broadly consistent”. She acknowledged that the first complaint of right shoulder symptoms was made to Dr Bodel in June 2022.
The Member referred to the submission made that the respondent’s tardiness in reporting the injuries was as a result of him suffering from shock. She noted the appellant maintained that the presence of shock ought to be discredited because the respondent:
(a)    was “partying” on the night after the injury;
(b)    carried out his normal work duties on 31 March 2020, and
(c)    was sufficiently lucid to send Ms Kenney photographs of his bruising to the right thigh.
The Member observed that it was not in dispute that the respondent suffered an immediate acute shock and arc flash to the eye in the incident which required hospital treatment, after which the respondent was discharged from hospital and he returned to work, where he completed a statement. She noted that the hospital records were not adduced in evidence by either party. The Member referred to the evidence of Ms Kenney that the respondent returned to work on 31 March 2020 and carried out his duties without restrictions. The Member said that there was no evidence that the respondent performed work for the appellant after that time, and the respondent’s evidence was that he was unable to return to work because of the eye injury and pain in his hip.
The Member indicated that she afforded little weight to the fact that the respondent was “partying” because that fact, if accepted, was of little relevance to the disputed injuries. She added:
“Further, having regard to the evidence as a whole, and considering it in the context of the [respondent’s] shock and psychological condition, I do not consider that it is persuasive evidence that the [respondent] should have had the presence of mind to report the disputed injuries at an earlier time.
There is consistent medical evidence that the [respondent] experienced significant ongoing psychological injury, in the nature of post-traumatic stress disorder, in addition to ongoing eye injury. Indeed, the insurer has accepted post-traumatic stress disorder and bilateral eye injury (arc flash).
Considering the evidence as a whole, I am satisfied that the absence of contemporaneous complaints of injury to the [respondent’s] lumbar spine, cervical spine or right shoulder and the delay in reporting relevant symptoms can be explained by evidence that:
(a)the [respondent] was initially seriously impacted by shock and acute eye injury which were a primary focus of treatment, and
(b)the [respondent] was subsequently significantly affected by post-traumatic stress disorder caused by the explosion.”[31]
[31] Reasons, [103]–[105].
The Member observed that the delay in the respondent reporting and seeking treatment for the disputed injuries should be considered in the context of the evidence from Dr Hilton, ophthalmologist, in his report dated 13 January 2021,[32] that the respondent did not seek treatment for his eye injuries until September 2020 because he “thought his eyes would get better.”[33] The Member considered the mechanism of injury, which she described as “an explosion which caused the [respondent] to be thrown backwards about 1m into an immovable object, with the [respondent’s] right hip being the significant point of contact.”[34] The Member pointed out that Dr Bodel and Dr Robinson, who were both of the view that the disputed injuries resulted from the incident on 26 March 2020, accepted that description of injury.
[32] ARD, pp 17–21.
[33] Report, p 2, ARD, p 18.
[34] Reasons, [107].
The Member added that, on the basis of an overall consideration of the evidence in the context of the respondent having reported various symptoms over a period of time, it was likely that the symptoms in relation to the disputed injuries developed and took on greater significance as time progressed. The Member pointed out that there was no evidence of any pre-existing condition or other mechanism of injury. She described the available evidence as presenting some difficulties but concluded that it was, overall, compelling. She said she was satisfied that the respondent suffered injury to his cervical spine, lumbar spine and right shoulder on 26 March 2020 when the respondent was thrown backwards approximately one metre against a switchboard following the explosion. She also accepted that the histories recorded by Dr Robinson and Dr Bodel were accurate. She said that those experts did not simply accept the respondent’s assertion of injury but took into account the material provided to them and their findings on examination, when accepting the injuries and opining that the respondent’s employment was a substantial contributing factor to those injuries. She accepted the opinions of both experts and determined that she was satisfied that the respondent suffered injuries to his lumbar spine, cervical spine and right shoulder on 26 March 2020 and that his employment was a substantial contributing factor to those injuries. She remitted the matter to the President for referral to a Medical Assessor for assessment of the respondent’s whole person impairment as a consequence of his physical injuries.
The Certificate of Determination issued on 17 March 2023 records:
“The Commission determines:
1. The [respondent] sustained injury to his lumbar spine, cervical spine and right shoulder on 26 March 2020 arising out of and in the course of his employment with the [appellant] pursuant to s 4(a) of the Workers Compensation Act 1987 and his employment was a substantial contributing factor pursuant to s 9A(1) of the Workers Compensation Act 1987.
2.     The matter is remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment in respect of the cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system in respect of injury on 26 March 2020.
The Commission orders:
3.     The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows:
Date of injury:    26 March 2020.
Body parts:cervical spine;
lumbar spine;
right upper extremity (shoulder);
right lower extremity (hip), and
visual system.
Method:whole person impairment.
4.     The materials to be referred to the Medical Assessor are to include:
(a)Application to Resolve a Dispute and all attachments;
(b)Reply and all attachments, and
(c)Application to Admit Late Documents dated 18 January 2023 and all attachments.”

GROUND OF APPEAL

The appellant asserts that:
“The Member erred in law and fact, in finding that the respondent had suffered injuries to his low back, neck and right shoulder.”

SUBMISSIONS

The appellant’s submissions

The appellant submits that there is no contemporaneous evidence of any complaints made by the respondent of symptoms in his low back, neck or right shoulder. The appellant points out that the first record of low back symptoms was noted in the clinical notes of the Ormeau Family Practice on 6 November 2020, which was some eight months after the injury, and the first complaint of symptoms in the neck was not recorded until August 2021, some 17 months after the injury. The appellant says that the respondent did not complain of right shoulder symptoms until the consultation with Dr Bodel on 4 April 2022 (wrongly stated by the appellant as June 2022). The appellant asserts that the respondent did not provide a history of having injured the right shoulder in the incident on 26 March 2020 and the symptoms were merely revealed when Dr Bodel performed his physical examination of the respondent.
The appellant indicates that both the Member and the respondent’s counsel acknowledged that the respondent failed to make any complaint of symptoms in the disputed areas despite having had the opportunity to do so, including in:
(a)    the accident report completed on the day of injury;
(b)    the claim from dated 13 October 2020, or
(c)    his statement dated 23 November 2020.
The appellant says that the respondent referred in his statement to tingling in his right hip, which travelled up his spine to his neck, and submits that there was no complaint that the symptoms involved the right shoulder.

The appellant refers to Kennedy Cleaning Services Pty Ltd v Petkoska[35] and Military Rehabilitation and Compensation Commission v May[36] and submits that what is required is a precise consideration of the evidence concerning the nature of the injury and the physiological change occurring as a result of the injury. The appellant submits that, without a correct history of absence of contemporaneous complaints being recorded by the medical experts and an explanation from the medical experts to explain the delay in reporting those symptoms, the Member would be in error to conclude that there had been a physiological change in the disputed areas, particularly the right shoulder.
[35] [2000] HCA 45 (Petkoska).
[36] [2016] HCA 19 (May No. 2).
The appellant refers to the Member’s reasons at [79]–[81], where the Member acknowledged that a common sense approach to the evaluation of the evidence was required in order to draw a causal link between the event and the alleged injury. The appellant says that it is necessary to examine how the Member approached that task given that she had recognised the lack of contemporaneous complaint. The appellant submits that contemporaneous evidence of the injury has always been considered by the courts as persuasive evidence of the occurrence of the event. The appellant cites a passage from Lord Pearce’s judgment in Onassis and Calogeropoulos v Vergottis[37] that “a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance …”.
[37] [1968] Lloyd’s Law Reports 403, 431.
The appellant submits that, in the light of the contemporaneous evidence, some of which was recorded by the respondent himself, there was no “strong reason” for the Member to draw the necessary causal link and, in finding a causal link, the Member fell into error of law. The appellant says that it is even more difficult to draw the necessary link when the symptoms could have and should have been reported but were not reported until after some delay.
The appellant observes that the Member’s approach was to place significant weight on the opinions of Dr Bodel and Dr Robinson, who did not examine the respondent until some two years after the event and relied upon a history of the symptoms in the lumbar spine, cervical spine and right shoulder being present from the time of the injury. The appellant submits that that history was not consistent with contemporaneous evidence and as a consequence, those opinions were flawed, and the Member fell into error by relying on those opinions in determining causation.
The appellant refers to the Member’s observation that “[the respondent’s] evidence is broadly consistent, although additional symptoms and injuries were reported over time.”[38] The appellant asserts that this reasoning is illogical because it cannot be said that the evidence was consistent with the contemporaneous evidence, even in a broad sense, and the lack of contemporaneous complaint is equally consistent with the complaints not being related to the injury.
[38] Reasons, [98].
The appellant further refers to the Member’s explanation for the delay being occasioned by the respondent suffering from shock and the effects of his post-traumatic stress disorder. The appellant asserts that “shock” may be an explanation for failing to report the symptoms initially, but it does not explain the delay of several months before reporting the symptoms to the general practitioner or the lack of details of symptoms in the neck, lumbar spine and right shoulder in the respondent’s statement and in the claim form completed in October 2020. The appellant points out that Dr Hodgson, the respondent’s treating psychiatrist, did not record memory loss as a symptom of the respondent’s post-traumatic stress disorder. The appellant submits that the explanation relied upon by the Member required an opinion to that effect from a medical expert and, absent such opinion, the Member’s reasoning was flawed.
The appellant maintains that the respondent failed to offer any explanation at all as to why the contemporaneous records were silent in respect of his complaints and he gave no evidence that he was in shock or that his post-traumatic stress disorder impaired his ability to report his symptoms. The appellant refers to the Member’s conclusion that the injuries alleged were consistent with the incident on 26 March 2020 and submits that the Member’s conclusion was again flawed because it required support from an expert. The appellant observes that “a simple injury can have serious consequences whereas a serious injury such as the one the [r]espondent suffered may not.”[39]
[39] Appellant’s appeal submissions, [38].
The appellant further refers to the Member’s observation that the respondent’s symptoms may have developed and become of greater importance with the progression of time. The appellant points out that there is no evidence to support that observation so that it also is flawed. The appellant says that a delay in reporting might be capable of medical explanation, or it might not. The appellant maintains that the delay is not explained medically, and it is apparent that the medical experts in this case were not appraised of the significant delay in the respondent reporting his symptoms.
The appellant submits that it is not apparent as to why the respondent’s delay in seeking treatment for his eyes led the Member to the conclusion that this fact explained the lack of contemporaneous complaint of symptoms in the lumbar spine, neck and right shoulder. The appellant again asserts that the Member’s conclusion was illogical and thus flawed and constitutes an error of law. The appellant submits that a sensible approach to the question of causation would have resulted in an outcome against the Member’s decision.

The respondent’s submissions

The respondent asserts that the appellant has failed to identify any error of fact, law or discretion, as required by s 352(5) of the 1998 Act. The respondent submits that the appellant is simply reciting the same submissions and arguments made to the Member, that is, that there was no corroboration of the assertions of injury contained in the contemporaneous evidence.
The respondent points to the Member’s reasons at [78]–[81] and asserts that the Member correctly identified the applicable principles. The respondent submits that the authorities of May No. 2 (relied on by the appellant) and Martin (referred to by the Member in her reasons at [80]) concerned Commonwealth legislation and do not apply to determinations involving the New South Wales legislation. The respondent asserts that the common sense approach remains applicable to this case. The respondent further asserts that the appellant’s submissions as to “a sensible approach to causation” are wrong at law and do not properly or fully articulate the “common sense” test.
The respondent submits that from paragraphs [13] to [70] of her reasons, the Member carefully summarised the statement evidence, the contemporaneous medical and other documentary evidence, as well as the experts’ opinions. The respondent asserts that the appellant does not identify any material or relevant evidence that was overlooked, or that the Member failed to take into account, and does not identify any immaterial or irrelevant evidence that the Member considered or took into account. The respondent submits that the appellant is simply adopting a different interpretation of the evidence to that taken by the Member, which does not establish the requisite error on the part of the Member.
The respondent contends that the Member clearly evaluated all of the evidence, indicated what evidence was accepted or rejected and what weight was to be placed on the accepted evidence. The respondent says that the Member’s approach did not lack logic or reason. The respondent submits that the Member’s conclusions were open to her on the available evidence and did not disclose error. The respondent cites the principles enunciated in House v The King,[40] in which the High Court considered the circumstances in which an appellate court could interfere with a discretionary decision made in the court below.
[40] [1936] HCA 40.
The respondent further submits that the appellant did not seek to cross-examine the respondent and did not challenge the respondent’s credibility and so the appellant should not be permitted to attempt to undermine his credit on appeal.

The appellant’s submissions in reply

The appellant submits that a sensible approach, which means rational or reasoned, on the part of the Member would have resulted in the Member concluding that there was no link between the right shoulder condition and the incident on 26 March 2020. The appellant further submits that the respondent was aware of the issues raised so he would not be aggrieved by a failure to cross-examine him and that the lack of evidence in favour of the respondent was so preponderant that the available inference opposite to that chosen by the Member should have been drawn. The appellant adds that the Member placed too little weight on the lack of contemporaneous evidence.

THE RELIEF SOUGHT

The appellant seeks to have the appeal allowed and an award made in its favour in relation to the allegations of injuries to the lumbar spine, neck and right shoulder.
The respondent seeks to have the Certificate of Determination dated 17 March 2023 confirmed. The respondent also asks for a costs order in his favour.

CONSIDERATION

The right to pursue an appeal from a decision of a Member is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Member, where such error is of fact, law or discretion.
The Member’s determinations that the respondent suffered injuries to his lumbar spine, cervical spine and right shoulder are conclusions of fact. In determining whether the Member has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[41] and by Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[42] have been consistently applied in the Commission. The principles established in Whiteley Muir were summarised by Deputy President Roche in Raulston v Toll Pty Ltd[43] as follows:
“…
(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.”[44]
[41] (1966) 39 ALJR 505 (Whiteley Muir).
[42] [2001] FCA 1833 (Branir).
[43] [2011] NSWWCCPD 25 (Raulston), [19]–[20].
[44] Raulston, [19].
In Raulston, Roche DP cited the relevant passage from Branir, in which Allsop J observed:
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[45]
[45] Branir, [28].
The appellant’s case was firstly reliant upon the absence of contemporaneous evidence that the disputed body parts were injured in the incident. Secondly, there was an unexplained delay on the part of the respondent in reporting his respective symptoms in the context of the respondent having had the opportunity to complain, particularly to treatment providers, about his symptoms. The appellant contends that:
(a)    there was no evidence of a physiological change that would support a finding of injury;
(b)    the medical opinions accepted by the Member were not based on a correct history of a lack of contemporaneous complaints and were thus flawed;
(c)    there was no “strong” reason for the Member to accept the allegations of injury, and
(d)    there was no evidence-based explanation to explain the delay in reporting.
The appellant’s submission in relation to [86(a)] above is that:
“To establish injury, it is well understood that a consideration of the precise evidence concerning the nature of an incident leading to the injury and the physiological change caused by the injury should occur.”[46]
[46] Appellant’s submissions, [24].
The appellant refers to Petkoska and May No. 2 as authorities for that proposition. Petkoska and May No. 2 concerned consideration of the difference between an injury in the context of a disease a personal injury and are of little assistance in this case. In any event, the observations in Petkoska were discussed by the Full Court of the Federal Court in May v Military Rehabilitation and Compensation,[47] in which the Court said:
“With respect, the Tribunal’s expression of what Gleeson CJ and Kirby J said in [Petkoska] at [35] in [6] of its reasons was wrong. Their Honours (the Chief Justice and Kirby J) did not say that a long line of decisions recognised that for there to be an injury requires that a ‘sudden or identifiable physiological change’ be established. They said the following at [34]–[35]:
‘There are differences in the approaches adopted in the majority comprised of the joint reasons of Toohey, McHugh and Gummow JJ, and the reasons of Kirby J in Zickar. But less important than the differences are the points in common which all members of the majority recognised and emphasised.
These included the reminder that a long line of decisions in Australia had recognised that an ‘injury’, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of ‘injury’ in s 6(1) of the Act of ‘mental injury’ makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker.’
We do not read their Honours’ use of the word ‘being’ on the second line of [35] as definitional. They used other phrases in their reasons, and they referred with approval to Hume Steel.”[48]
[47] [2015] FCAFC 93 (May No. 1).
[48] May No. 1, [205]–[206].
Those observations were not disturbed by the High Court in May No. 2, although the Court confirmed that a physiological change was required in order to establish a personal injury. In the present case, the incident said to have caused the injury was consistently described, the medical experts and the Member were appraised of the mechanism of injury and there was clear evidence from the medical experts that the respondent had suffered injury to the various areas. Dr Robinson diagnosed soft tissue injuries, which evidence was uncontested and satisfies the requirement for there to be a physiological alteration of the respondent’s physical state. Even so, as Roche DP observed in Kempsey Shire Council v Kirkman,[49] “[t]hough it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker.” Causation can be established although the precise diagnosis is not known.
[49] [2010] NSWWCCPD 104, [82].
The respondent clearly displayed symptoms in his low back, cervical spine and right shoulder when examined by Dr Bodel and by Dr Robinson, symptoms related to his neck were recorded in the clinical notes of Ormeau Family Practice on 1 June 2020 and he was treated for low back pain by his physiotherapist on 6 November 2020. There is no suggestion that the respondent was feigning those symptoms, or the right shoulder symptoms which eventually came to light. Dr Robinson had specifically excluded an abnormal illness behaviour. Dr Robinson diagnosed the injuries as soft tissue injuries resulting from the incident on 26 March 2020.
The proposition that the Member was in error because there was no evidence of a physiological change that would support a finding of injury is rejected.
The appellant submits that the medical opinions accepted by the Member were not based on a correct history of a lack of contemporaneous complaints and were thus flawed. 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.[50]
[50] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267.
Dr Bodel recorded the mechanism of the injury as involving the respondent being thrown backwards and landing heavily, causing pain in the back, buttocks and right hip. The history taken by Dr Bodel was that the respondent’s complaints when he attended the St George hospital included back pain and neck pain. While that history is not mirrored in any contemporaneous evidence, the respondent was not challenged about that history and, as the Member noted, the clinical notes from the St George hospital were not in evidence. It is difficult to see how that history could be construed as an incorrect history when it was not challenged by any evidence.
In any event, the appellant provided the clinical notes from the Ormeau Family Practice to Dr Robinson, which he clearly considered, as well as the reports of Dr Sheikh, neurologist. The appellant did not rely on the reports of Dr Sheikh in the proceedings in the Commission. Dr Robinson particularly noted that the first mention of the work injury was not made until 3 September 2020. Dr Robinson was thus well appraised of the fact that there was a delay of some months before the respondent discussed his injuries with his treatment providers and, having reviewed the clinical notes, he was aware of the absence of complaints in respect of the disputed injuries. It would be reasonable to assume that, in those circumstances, Dr Robinson would have voiced any concerns he may have had about the connection between the injurious event as described, which could only fairly be described as a significant bodily impact, and the disputed injuries. Further, there is no evidence that Dr Robinson was asked to address the question of the lack of causal connection put forward by the appellant.
The opinions of Dr Bodel and Dr Robinson draw some support from the certificates of capacity issued by Dr Hamza, in which Dr Hamza attributed all of the respondent’s complaints to the work related injury and from the note of a work injury and low back pain recorded by the physiotherapist, Mr Spruyt. There was no medical expert who queried the connection between the respondent’s belated complaints and the injury.
In those circumstances, it cannot be concluded that the medical opinions of Dr Bodel and Dr Robinson were flawed and the Member was not in error in accepting those opinions.
The appellant asserts that there was no “strong” reason for accepting the disputed allegations of injury. The Member was required to determine the dispute on the balance of probabilities and not on any higher basis. She acknowledged that there was a delay in the respondent complaining of the disputed injuries despite having the opportunity to do so. The Member’s reasons for accepting the injuries were that:
(a)    the uncontradicted evidence as to the mechanism of injury was that the respondent was thrown backwards for about one metre with some force, hitting the switchboards behind him, which would be consistent with a cause of such injuries;
(b)    in his statement evidence, the respondent described pain in his hip that caused tingling in his leg and up to his neck, which the Member observed plainly encompassed the respondent’s back;
(c)    in the context of the impact of the respondent’s shock, ongoing eye injury, and significant psychological condition subsequently diagnosed as post-traumatic stress disorder, she did not accept that the respondent should have “had the presence of mind to report the disputed injuries at an earlier time”;[51]
(d)    Dr Hilton, ophthalmologist, explained that the respondent did not seek treatment for his eye injuries until September 2020 because he thought that his eye symptoms would resolve;
(e)    the uncontradicted mechanism of injury was accepted by Dr Bodel and Dr Robinson as having caused the disputed injuries;
(f)    it was a likely possibility that the symptoms in relation to the disputed body parts may have developed and become of greater significance over time;
(g)    there was no evidence of any pre-existing condition or other explanation for the symptoms, and
(h)    Dr Bodel and Dr Robinson did not simply accept the injuries but considered such matters as to whether the employment was a substantial contributing factor to the injuries and whether there should be any deduction from the assessment of the whole person impairment because of any other cause.[52]
[51] Reasons, [103]–[104].
[52] Reasons, [104]–[112].

The Member’s reasoning followed a comprehensive path through the whole of the available evidence and involved an evaluative and a commonsense assessment of that evidence. The approach taken by the Member was open to her and supported her conclusion that the respondent suffered the injuries alleged. While direct evidence from the respondent as to his explanation for the delay would have been of great assistance, in the circumstances of this case the Member did not require a medical explanation for the delay and the matters taken into account by her could readily be inferred from the factual evidence upon which she relied. The appellant’s assertion that there was no evidence-based explanation to explain the delay in reporting the disputed injuries is not made out.
Appling Whiteley Muir and Branir, it cannot be said that there were other probabilities that outweighed those chosen by the Member, or the facts upon which the Member relied in drawing her inferences were wrong, or that the Member overlooked or gave undue weight to any of the evidence. It cannot be said that there was as an opposite inference that was so preponderant that it shows that the Member was wrong.
It follows that the appellant has failed to establish that the Member erred in the manner required and the Member’s Certificate of Determination is confirmed.
I note that the respondent seeks a costs order in his favour. Section 341 of the 1998 Act provides that the Commission has no power to order costs.

DECISION

The Member’s Certificate of Determination dated 17 March 2023 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

9 February 2024