David Jones Pty Limited v Singh - [2024] NSWPICPD 29

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	David Jones Pty Limited v Singh [2024] NSWPICPD 29
APPELLANT:	David Jones Pty Limited
RESPONDENT:	Jayson Singh
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W1714/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	21 May 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 5 July 2023 is revoked. 2. The matter is remitted to another Member for re-determination in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – obligations of member to refer to arguments submitted – Wang v State of New South Wales [2019] NSWCA 263 considered and applied – whether a claim was made by a worker and disputed – Skates v Hills Industries Ltd [2021] NSWCA 142 applied
HEARING:	On the Papers
REPRESENTATION:	Appellant:
Mr D Stiles, counsel
Hicksons Lawyers
Respondent:
Mr P Perry, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Singh v David Jones Pty Ltd [2023] NSWPIC 319
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	5 July 2023

INTRODUCTION

The respondent, Mr Jayson Singh (respondent), was employed by the appellant, David Jones Pty Limited (appellant), as a warehouse assistant and forklift driver on a full-time basis since April 2017.[1]
[1] Respondent’s statement 28/2/2023, Application to Resolve a Dispute (ARD), p 1, [3].
The respondent states that he has sustained various injuries in the course of his employment with the appellant. The respondent has alleged that he has sustained physical injuries, which are the subject of the dispute in this matter, and a psychological injury, which has been accepted by the appellant. As the psychological injury is not in dispute, I do not need to consider it for the purposes of deciding this appeal.
The respondent describes an injury which occurred on 29 July 2019 while driving a forklift in the appellant’s warehouse. During the course of manoeuvring the forklift, the respondent felt a “popping” sensation in his lower back and sharp pain in his neck, which was immediately reported. Liability for the lower back injury of 29 July 2019 was accepted by the respondent. Additionally, the respondent alleges that he suffered injuries to his lumbar spine, cervical spine and both shoulders due to the nature and conditions of his employment.[2] The respondent says he worked on, experiencing pain and discomfort in his lower back, neck and both shoulders until 26 August 2019. On this date the respondent ceased work.[3]
[2] The description of his duties said to have caused these injuries is at ARD, p 1, [6].
[3] ARD, pp 1–2, [7]–[9].
The respondent subsequently made claims for lump sum compensation of 36% whole person impairment (WPI) for injury to his lumbar spine, cervical spine, TEMSKI scarring and bilateral shoulders.[4] The appellant, through its insurer icare, disputed the claims for lump sum impairments and rejected an application for review.[5] In these notices, the respondent disputed liability for injury to the bilateral shoulder and cervical spine injuries. I would note that while the lumbar injury has been accepted by the appellant, the appellant disputed that the WPI for said injury exceeded 10% for the purposes of s 66 of the Workers Compensation Act 1987 (1987 Act).[6]
[4] Letter from Messrs Turner Freeman Solicitors, 11 March 2022, ARD, p 35.
[5] Notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dated 19 July 2022, 15 October 2020 and 27 April 2020, ARD pp 20, 27 and 33 respectively; notice pursuant to s 287A of the 1998 Act dated 19 August 2022, ARD p 12.
[6] Section 78 notice, 15 October 2020, ARD, p 27.
As a consequence of the appellant’s decisions, an Application to Resolve a Dispute (ARD) with respect to lump sum compensation was filed in the Personal Injury Commission (Commission) on 7 March 2023. The dispute was heard before the Member, the late Mr P Young, on 9 May 2023. As the matter did not conclude on that date, written submissions were directed, the last submission being filed and served on 2 June 2023. The Member found in favour of the respondent in a decision dated 5 July 2023, finding that he had sustained injuries to his lumbar spine, cervical spine, shoulders and scarring in the course of his employment “up until and on 29 July 2019”. The Member referred all injuries claimed by the respondent to a Commission Medical Assessor to determine the extent of the respondent’s WPI. The appellant appeals from this decision.

THE MEMBER’S REASONS

The issues before the Member involved deciding which body parts were to be referred to a Commission Medical Assessor for an assessment of the extent of the respondent’s WPI. The Member correctly identified that this was the task before him, before embarking on a consideration of the evidence and the appellant’s argument that the respondent had not made a claim in relation to the injuries said to have been caused by the nature and conditions of his employment.
The Member’s decision was brief. The Member firstly dealt with the medical evidence. This involved a consideration of consultant orthopaedic surgeon Dr Powell’s opinions relied on by the appellant, and the medical opinions relied on by the respondent, principally the treating spine surgeon, Dr Khong, and consultant orthopaedic surgeon, Dr Gehr. The Member said:
“9.     The date of the [respondent’s] frank injury is 29 July 2019. The [respondent] refers to Dr Gehr’s report of 3 March 2022 who had before him a report dated 18 November 2019 from Dr Lim [treating GP] which confirmed that the [respondent] complained of neck, shoulder and back injuries ‘due to repetitive heavy lifting, carrying, bending and twisting at work’. As well as diagnosing cervical spine and lumbar spine radiculopathy, Dr Lim diagnosed bilateral shoulder strain.
10.    Dr Gehr also referred to the report of the [respondent’s] treating spinal surgeon Dr Khong of 31 January 2020. The history given to Dr Khong was heavy work for two to three years and then the ‘forklift incident’ about six months prior. In a report of 4 August 2022 Dr Lim attributes the injuries to the [respondent’s] work and confirms that the [respondent’] employment was the main contributing factor to these injuries.
11.    The [respondent] commenced work with the [appellant] in April 2017. A first aid report form completed by the [appellant’s] nurse on 29 July 2019 supports injury to the neck and lower back. Right shoulder pain had been identified by the [respondent’s] physiotherapist Mr Yang, on 24 September 2019.
…
14.    This Commission accepts, in relation to the [respondent’s] lumbar and cervical spines, the opinion of Dr Khong not only because he was the treating spinal surgeon but also because he saw the [respondent] 15 times and operated on the [respondent] on 28 January 2021. Dr Khong’s opinion on causation is supported by Dr Lim and Dr Gehr.
15.    At examination by Dr Khong on 28 February 2020 pain was recorded radiating into the [respondent’s] left shoulder with ‘sharp pain left periscapular’.
16.    The [respondent] was seen by Dr Soo on 24 February 2020. At that time, he was complaining of tenderness to the trapezius and posterior musculature of the right shoulder. Dr Soo recommended physiotherapy and conservative measures and his treatment seems to be concerned with the right shoulder which the [respondent] says exhibited ‘more significant symptoms’.
17.    The insurer relied upon Dr Powell’s report to say that Dr Powell:
‘… considered that there was insufficient evidence to establish a causal link between the lumbar spine injury and [the respondent’s] claimed neck and bilateral shoulder conditions’.
The [respondent] correctly points to the fact that he has never suggested that his neck and shoulder conditions are consequential upon his lumbar spine injury.
18.    Dr Powell in his first report does not list the reports of the [respondent] except that this Commission notes that there is mention of Dr Khong’s conclusion and Dr Gehr’s whole person impairment assessment on page seven of that same report.
19.    Dr Powell next saw the [respondent] on 20 April 2020 and again it is noted that apart from a reference to ‘… the documents provided’ and three radiological reports there is no reference to the reasoning of Dr Khong or Dr Gehr.
20.    It is, in my opinion, correct to say that Dr Powell’s lack of reference to the reasoning of Dr Khong or Dr Gehr makes his reports somewhat incomplete.”
The Member then turned to the appellant’s submission that a “nature and conditions“ claim had not been made and that as a result the proceedings should be struck out or dismissed. The Member reasoned as follows:
“23. The [appellant] claims that the claim form submitted by the [respondent] mentions only the frank incident of 29 July 2019 and in that document, as well as in the first aid report form of same date, reference is only made to the [respondent’s] neck and back. I have already discussed above the references to the [respondent’s] shoulders and although there may have been some delay in reporting those injuries or recording those injuries, that is not necessarily fatal to the [respondent’s] case.
24.    The [appellant] also points to a clinical note of Dr Grant, general practitioner, of 8 August 2019 in which the [respondent] complained that on 29 July 2019 he suffered neck and lower back pain.
25.    At paragraphs 8 to 19 of the [appellant’s] submissions the [appellant] goes into detail as to why the ‘nature and conditions’ (for want of a better expression) allegation should be struck out or dismissed. The [appellant’s] submissions go on to quite correctly concede injury to the [respondent’s] lumbar spine and cervical spine as having occurred in a frank incident on 29 July 2019 but says that the evidence does not establish any injury to the shoulders as a result of the incident on 29 July 2019. The [appellant] points out that Dr Khong in a report of 5 August 2022 refers to his review of the [respondent] on 28 February 2020 when he gave a history of left side neck pain radiating to the left shoulder (not a discrete injury). The same may be said of Dr Khong’s further report 20 May 2022. The [appellant] makes the point that whilst Dr Gehr diagnoses right shoulder and left shoulder pathology in his report of 3 March 2022, his earlier report of 28 July 2020 makes reference only to the [respondent’s] neck and back.
26.    There is in my view sufficient reference to the [respondent’s] left and right shoulder pathology together with the [respondent’s] statement dated 28 February 2023 and the opinion of Dr Gehr to support the view that on the balance of probabilities the [respondent] suffered injury to his cervical spine, lumbar spine and both shoulders by reason of his exposure to work up until and on 29 July 2019.”
The Member then proceeded to make the following finding, as recorded in the Certificate of Determination issued on 5 July 2023:
“1.     Up until and on 29 July 2019 the [respondent] in the course of his employment with the [appellant] suffered injury to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) as well as TEMSKI scarring.
2.      The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the [respondent’s] whole person impairment, if any, which results from the injuries described in 1. above.
3.     The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of the [Application to Admit Late Documents] and a copy of these Reasons for Decision.”

GROUNDS OF APPEAL

The appellant relies on seven grounds of appeal. In a commentary section of the appeal appearing immediately before the seven grounds, the appellant provides the following precis of the appeal:
“The Appellant Employer takes issue with two aspects of the Member’s decision. Firstly, the Appellant Employer says the Member erred in allowing the Respondent Worker to proceed with the ‘nature and conditions’ claim, and in making a referral to a Medical Assessor that included injury resulting from the nature and conditions of employment. Secondly, the Appellant Employer says the Member erred in his acceptance of the allegations of injury to the upper extremities (shoulders). The Appellant Employer will deal with those aspects of the Member’s decision separately.”[7]
[7] Appellant’s submissions 2 August 2023, “Background”, [g].
Seven grounds then prosecute the appeal within the themes outlined in the precis. The grounds are:
Ground One – That the Member erred in failing to determine the dispute raised by the appellant employer in relation to whether a claim had been made in relation to the alleged injuries resulting from the nature and conditions of employment.
Ground Two – That the Member erred in failing to give any, or any adequate, reasons in relation to the dispute raised by the appellant employer regarding the nature and conditions claim.
Ground Three – That the Member erred in finding the respondent worker was entitled to pursue a claim for injury resulting from the nature and conditions of employment where such a claim had not been made in accordance with the requirements of the legislation (including the notice and claim provisions contained in s 254 and/or s 261 of the 1998 Act).
Ground Four – That the Member failed to distinguish between the accepted frank injury on 29 July 2019, and the alleged injury resulting from the nature and conditions of employment, or make any findings in relation to the mechanism of injury and the body parts/systems injured as a result of those separate incidents/injuries.
Ground Five – That the Member erred in remitting the matter for referral to a Medical Assessor seeking an assessment of impairment which would combine impairments associated with the frank incident on 29 July 2019 and the alleged injuries resulting from the nature and conditions of employment.
Ground Six – That the Member erred in accepting the respondent worker suffered injury to either/both upper extremities (shoulders) on 29 July 2019, as distinct from the nature and conditions of employment, and failed to determine whether the injury to either shoulder was a discrete injury, a disease condition, or an aggravation of a disease condition within the meaning of s 4, or deal with the requirements of s 4.
Ground Seven – That the Member erred in finding there was evidence of any pathology in the left upper extremity (shoulder) such as to justify a finding of “injury” in respect of the incident on 29 July 2019 or, indeed, the nature and conditions of employment.

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.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. Both parties are content for the matter to be decided on the papers.

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 (1998 Act) have been met.

LEGISLATION

Section 4(b)(ii) of the 1987 Act provides:
“In this Act—
injury—
…
(b) includes a disease injury, which means—
…
(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 254 of the 1998 Act provides:
“254 Notice of injury must be given to employer
(1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.
…”
Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
....”

Section 319 of Part 7 of the 1998 Act defines a medical dispute as follows:
“319 Definitions
In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)     the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)     the worker’s fitness for employment,
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)     the nature and extent of loss of hearing suffered by a worker,
(f)      whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”

DISCUSSION

A few principles regarding the making of a valid claim

In this matter the appellant argues that the only claim made by the respondent was in relation to the 29 July 2019 injury[8] and that no claim had been made in relation to injuries to the neck and shoulders said to have been caused by the nature and conditions of the respondent’s employment.
[8] Worker’s Injury Claim Form, 15 October 2019, Application to Admit late Documents 4 May 2023, p 1.
In Yildiz v Fullview Plastics Pty Limited[9] I discussed the requirements for the making of a claim under the workers compensation legislation:
“A ‘claim’ is defined in s 4 of the 1998 Act. It means a ‘claim for compensation or work injury damages that a person has made or is entitled to make’. ‘Compensation’ is also defined in s 4 of the 1998 Act. It means ‘compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. The term ‘made’ is not defined in the Act.
As discussed in the Presidential decision in Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [[2013] NSWWCCPD 42], the provisions dealing with the manner of making a claim for compensation have had a long history of legislative amendment.The relevant claim provisions are those contained in Ch 7 of the 1998 Act, in particular ss 260 and 261 of the 1998 Act. Section 260 provides for how a claim is to be made and s 261 provides the time within which a claim for compensation must be made. Relevantly, s 261(1) provides that compensation cannot be recovered unless a claim for compensation has been made.”[10]
[9] [2019] NSWWCCPD 24 (Fullview Plastics).
[10] Fullview Plastics, [67]–[68].

A few principles in respect of a medical dispute

I have set out in the section entitled “Legislation” (above) the provisions contained in s 319 of the 1998 Act. The Court of Appeal in Skates v Hills Industries Ltd[11] had cause to review these provisions. Leeming JA said as follows:
“44. The starting point is a ‘medical dispute’. That term is defined in s 319 of the [1998 Act], reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.
45.    In the present case Mr Skates’ ‘Application to Resolve a Dispute’ was received by the Commission on 8 August 2017. It described his injury as ‘Injury to left wrist, ring finger and scarring’ and stated that he had a permanent impairment of 18% by reference to ‘Left upper extremity, joint ring finger and scarring’. A medical report accompanying Mr Skates’ application from Dr O’Keefe stated that the whole person impairment had been assessed according to the ‘new WorkCover 4 guidelines’, and that insofar as it was based on his ‘left upper extremity’ it comprised impairment to the wrist and ring finger by reference to particular figures in the AMA5 Guide. Mr Skates’ application also included a letter from the workers compensation insurer dated 11 July 2017. The letter referred to the claim and Dr O’Keefe’s assessment of whole person impairment of 18% based on ‘Left upper limb (wrist, ring finger) 15% WPI’, ‘Scarring 3% WPI’. The letter stated that it had arranged for Mr Skates to be examined by Dr Panjratan, whose assessment was ‘Left upper limb (wrist, ring finger) 11% WPI’ and ‘Scarring 1% WPI’ yielding a total of 12% WPI, and it made a settlement offer on that basis.
46.    The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
47.    Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
48.    The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
49.    The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
50.    The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.” (italicised emphasis in original, underlined emphasis added by me)
[11] [2021] NSWCA 142 (Skates).
As can be gleaned from His Honour’s remarks (above) that I have highlighted, the essence of the Commission’s power to entertain a medical dispute is the existence of a dispute.

DISCUSSION

As to Grounds One and Two

Grounds One and Two can conveniently be dealt with together as some of the arguments overlap and Ground Two is expressed as being contingent on Ground One, which submissions I will set out in brief below.
The appellant argues that no claim had ever been made in respect of the separate injuries to the respondent’s cervical spine and bilateral shoulders as a result of the nature and conditions of his employment.[12] The appellant says that in allowing the claims to proceed, the Member failed to give any, or any adequate reasons. The appellant frames the argument in the following way:
“Whilst the Appellant accepts the Member’s comments in paragraph 22 to the effect that the Commission is not bound by strict pleadings, and that the ARD made it clear that the Respondent Worker intended to rely on the nature and conditions of employment, that does not deal with the complaints raised in the Appellant Employer’s written submissions. It was the Appellant Employer’s position that the Respondent Worker should not be permitted to rely on the nature and conditions allegations in circumstances where a claim had not been lodged with the Appellant Employer in relation to any injury resulting from the nature and conditions of employment. The only claim the Appellant Employer had received was in relation to the frank incident that occurred on 29 July 2019. The fact that medical evidence relied upon by the Respondent Worker referred to an injury resulting from the nature and conditions of employment did not, in the Appellant Employer’s submission, cure the fact that a claim had not been made in respect of such an injury. Further, the Appellant Employer submitted that the Respondent Worker was alleging two separate mechanisms of injury which needed to be treated separately (in terms of findings in relation to injury and any referral for an assessment of permanent impairment).”[13]
And:
“In paragraphs 23 to 25, the Member made various references to the issues raised by the Appellant Employer in relation to the nature and conditions claim, but did not go on to make any determination, or give any reasons, for allowing the Respondent Worker to pursue the nature and conditions claim and refer that claim to a Medical Assessor for assessment of impermanent impairment.”[14]
[12] Appellant’s submissions 2 August 2023, [1(b)].
[13] Appellant’s submissions 2 August 2023, [1(k)].
[14] Appellant’s submissions 2 August 2023, [1(n)].
In respect of Ground Two the appellant submits:
“The Appellant Employer relies on the submissions set out in relation to Ground 1 above in relation to this Ground, and further submits that, despite the Member having acknowledged the issues raised by the Appellant Employer in relation to the nature and conditions claim, he did not go on to make any determination, or give any reasons, for allowing the Respondent Worker to pursue the nature and conditions claim and refer that claim to a Medical Assessor for assessment of impermanent impairment. The Appellant Employer says the Member failed to give any, or any adequate, reasons on this issue.”[15]
[15] Appellant’s submissions 2 August 2023, [2(a)].
In response the respondent argues that notice of the claim had been given, referring to the s 78 notice dated 27 April 2020.[16] The respondent says that a claim had been made and acknowledged by the insurer regarding the nature and conditions injury claim and that the Member was correct in rejecting the argument.[17]
[16] ARD, p 33.
[17] Respondent’s submissions 5 September 2023, [14]–[15], [18]–[19].
With respect to Ground Two, the respondent says that the Member’s reasons can be found at reasons [21]–[26] and as a consequence, the submission that the Member failed to give any reasons must fail. In terms of the submission that the Member failed to give adequate reasons, the respondent submits the following:
“The principles regarding adequacy of reasons were considered by the NSW Court of Appeal in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247. At 280, Justice Mahoney considered the extent of the duty to give reasons and noted that it was related to the function to be served by the giving of reasons. In dealing with disputes of the type that existed in Soulemezis and which exist in this case, where the decision-maker is subject to a party’s right of appeal, the duty is sufficiently satisfied by giving the grounds for findings, and not detailed reasoning in support of findings.
It is submitted that the duty is even less extensive when it is clear, as it is here, that the employer and the insurer were at all relevant times clearly aware that the worker was asserting that his neck and shoulders had been the subject of injury sustained in the course of his employment, including on 29 July 2019, the injury taking the form of the aggravation of a pre-existing condition in the worker’s neck back and both shoulders.”[18]
[18] Respondent’s submissions 5 September 2023, [21]–[22].

Consideration

For the reasons set out below, I do not accept the appellant’s contention that the respondent had failed to make a claim as alleged in Ground One.
The appellant’s insurer said this in its s 78 notice dated 19 July 2022.[19] Whilst the notice refers to “consequential bilateral shoulder and cervical spine injury” in its heading, later in the document it makes reference to “ … cervical spine and bilateral shoulders in addition to the lower back and these were attributed to the nature and conditions of your employment.”
[19] ARD, p 20.
The notice commences beneath a heading entitled “Reasons for the decision” by relating the following: “Your solicitors, Turner Freeman Lawyers, have served a notice of claim dated 11 March 2022 seeking lump sum compensation in respect [of] 36% whole person impairment based on an opinion of Dr Gehr dated 3 March 2022.” The notice then notes that in response to receiving this “claim for lump sum compensation”,[20] the insurer arranged for the respondent to be examined by Dr Powell on 6 May 2022. The reports from both doctors are refenced in the body of the s 78 notice (Dr Gehr at ARD, p 25, Dr Powell at ARD, p 26), as well as the insurer’s construction of these opinions so as to justify the decision to dispute the claim for lump sum compensation.
[20] ARD, p 22.
Dr Gehr, in his 3 March 2022 report[21] opines that: “In conclusion, Mr Singh has neck, shoulder and back injuries due to the nature of his work …”.[22]
[21] ARD, p 88.
[22] ARD, p 96.
In response, Dr Powell examined the respondent and in his report of 10 May 2022,[23] after taking a history of cervical and shoulder injuries attributed to the nature and conditions of the respondent’s work, did not believe that there was “sufficient evidence to conclude that he has sustained any specific injury or structural pathology involving the cervical spine or bilateral shoulders.”[24]
[23] Reply, p 30,
[24] Reply, p 34, [e].
In the s 278A notice dated 19 August 2022,[25] reference is made once again to the Turner Freeman letter and the “claim on your behalf for 36% whole person impairment”. The notice states: “You changed GPs to Workers Doctors [Dr Lim] and your diagnosis included your neck and shoulders as a result of the nature and conditions of your employment which is in contrast to your claim form”, and: “Based on the available evidence, we consider that the opinions from Workers Doctors, Dr Gehr and Dr Khong to be inconsistent. While Workers Doctor and Dr Gehr considered that your neck and shoulders developed as a result of the nature and conditions of your employment, they also considered that symptoms developed in the shoulders as a result of the work injury and you injured your neck on 29/07/2019. Dr Khong on the other hand addressed your neck only as a disease injury.”[26] This notice goes on to affirm that the insurer’s initial s 78 notice declined liability for the neck and shoulder injuries arising as a consequence of the accepted lumbar spine injury, and had not determined whether either injury was frank or disease; it said that such an allegation was to be determined.[27] The Member referred to Dr Powell’s opinion at reasons [17] arising from a consideration of this notice.[28]
[25] ARD, p 12.
[26] ARD, p 14.
[27] ARD, p 15.
[28] In particular at ARD, p 15.
The Turner Freeman letter dated 11 March 2022, claiming 36% WPI and attaching the report of Dr Gehr, pre-dated the commencement of these proceedings by 12 months and is a ‘claim’ in that sense that I have referred to in FullviewPlastics (at paragraph [20] above). The same too can be said about the letter of 5 August 2022, attaching medical reports of Drs Khong, Lim and Gehr in seeking the insurer’s review of the initial dispute, and which were reports considered in the section 287A review notice referred to above.
This Commission does not possess inherent jurisdiction, rather its authority to decide applications rests upon the concept of a dispute.[29] In this matter the appellant had received and acknowledged the respondent’s claims in relation to his neck and shoulders arising from the nature and conditions of his employment. The claim was the Turner Freeman correspondence I have referred to and which was disputed, in terms, in the notices based, inter alia, upon Dr Powell’s opinion. The notices acknowledged the letter from the solicitors as a “claim” made on behalf of the respondent. The dispute between the parties was thus crystalised. This is precisely the circumstance referred to by Leeming JA in Skates at [44].
[29] Skates, [48], [50].
The complaint in this ground has not been established. To the contrary, it apparent from a review of the pre-litigation exchange of material between the parties that a claim in relation to the respondent’s neck and shoulders, and the precise nature of these injuries, had been made and disputed. The Commission was then appropriately possessed of the authority to decide that dispute.
Ground One is dismissed.
With respect to Ground Two, I accept the respondent’s submission that reasons were given by the Member at reasons [21]–[26]. The allegation that the Member did not give any reasons fails.
The real question for determination is the adequacy of the reasons that were given. Reliance is placed upon the appellant’s submissions in Ground One, which for the reasons I have set out above was not established.
A Member’s obligation to give reasons was recently explained in Fisher v Nonconformist Pty Ltd.[30] His Honour noted that there is no common law duty on executive decision-makers to give reasons. Further, the duty upon such decision-makers is not the same as applies to judicial officers. The duty on Commission decision-makers arises from s 294 of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021. In particular, his Honour stated that the nature of the standard was as summarised in Ming v Director of Public Prosecutions (NSW)[31] where the following was said:
“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.” (emphasis added)
[30] [2024] NSWCA 32, [136]–[139], per Kirk JA.
[31] [2022] NSWCA 209 (Ming), [43].
The Member’s reasons were not lengthy, but they are not required to be so. The Member was concerned with resolving the discrete controversy about whether a claim had been made with respect to the asserted claim of injury to the respondent’s neck and shoulders as a result of the nature and conditions of his employment. The Member referenced the material that had been exchanged inter partes and authorities about practice and procedure in the Commission before reaching his ultimate decision at reasons [26].

I accept that the Member’s reasons have not engaged with the evidence in the detail that I have done in respect of Ground One. But the evidence, once examined, reveals that there is no substance to the appellant’s complaint about no claim being made. The Member was right to find as he did, particularly where he references Dr Gehr’s opinion,[32] which was reviewed by the appellant’s insurer before the particular claim was disputed. Even if the reasons were inadequate, any such inadequacy has not affected the result.[33] The underlying complaint about no claim being made was lacking in substance and the Member was right to not sustain it.
[32] Reasons, [26].
[33] Walshe v Prest [2005] NSWCA 333 (Walshe), [27].
Ground Two has not been established. Ground Two is dismissed.

As to Ground Three

The appellant relies upon its submissions in Ground One in support of this ground, namely that it is asserted that the respondent only made a claim in relation to the 29 July 2019 incident. For the reasons outlined above, this aspect of the submission has no merit.
The appellant referred the Member to ss 254 and 261 of the 1998 Act in respect of the nature and conditions claim with respect to the asserted neck and shoulder injuries. The written submissions squarely raised this issue before the Member. The appellant says the Member “failed to give any consideration to those matters and failed to give any, or any adequate, reasons dealing with those matters.”[34] This is the essence of the complaint in this ground.
[34] Appellant’s submissions 2 August 2023, [3(b)].
The respondent says that the s 78 notice failed to raise either s 254 or s 261 of the 1998 Act. The s 78 notice, the respondent states, did describe the nature and conditions claim. The respondent therefore asserts that it is entitled to pursue the claim that was made and denied.

Consideration

I accept that the Member did not refer to or in any way deal with the submission that was before him about the application of ss 254 and 261 of the 1998 Act.[35] Nowhere in his decision has the Member dealt with this argument.
[35] Appellant’s written submissions before the Member 25 May 2023, [9]. [15].
I have closely examined the notices issued by the appellant, both under s 78 and the review notice under s 278A. Nowhere in any of these notices was the respondent alerted to the fact that compliance with ss 254 and 261 was an issue in dispute in this matter. The notices were issued by icare, which is undoubtedly a frequent and sophisticated litigator in workers compensation matters in the Commission. Indeed, the Reply filed by the appellant was also silent on these two provisions. The Reply, beneath the heading “Matters in Dispute”[36] confirmed that the dispute was constituted by the matters set out in the dispute notices, which the appellant relied on.
[36] Reply, p 2 of 4.
The Member was in error in failing to deal with the argument that was raised in the written submissions regarding the application (or not) of ss 254 and 261 of the 1998 Act.
However, notwithstanding this error, this is not the end of the matter.
The argument referring to ss 254 and 261 was only raised for the first time in the written submission dated 25 May 2023, filed by the appellant in the proceedings before the Member, and asserted only to the extent that the respondent worker had failed to comply with those provisions. At no stage before then had the issue been raised that the dispute also encompassed reliance on these two statutory provisions. Neither in the various dispute notices, nor in the Reply, was the application of ss 254 and 261 to this matter raised. As I have referred to above, the Commission does not possess inherent jurisdiction. In this matter, the power to decide the matter depends upon the dispute and how it had been framed by the parties in the various documents exchanged pre-litigation.[37] The appellant is not entitled to raise these matters in the manner and at the time where it has done so.
[37] Skates.
Additionally I would note that the appellant does not articulate, either before the Member or on appeal, that it was prejudiced by any failure of the respondent to give notice of the injury under s 254 of the 1998 Act. I say this as the failure to notify injury is not a bar to the recovery of compensation if a special circumstance arises, one circumstance being that the employer has not been prejudiced due to this failure (s 254(3)). I appreciate no submissions have been made on this point by the respondent worker. I note that indeed the appellant had the respondent examined by its medico-legal specialist (Dr Powell) who was able to provide an opinion. This opinion was relied upon by the appellant to decline the claim. No specific prejudice has been alleged and it is apparent that the appellant was able to consider and deal with the claim on its merits. There is no merit in this complaint with respect to s 254. The Member’s failure to deal with this aspect of the submission does not affect the result.
In terms of the s 261 argument, the appellant, other than asserting that the section applied in this matter, provided no detail in its submission about how it was engaged. Rather, before the Member and on appeal it is presented as if it were an unarguable proposition and was not expanded upon. This argument was based upon the assertion that the respondent had made no claim, which as I have found in relation to Ground One, has no merit.
There is no submission by either party about the terms of s 261 and how it applies to this case. None of the constituent sub-sections of s 261 were the subject of even cursory attention by the appellant. In the circumstances, other than not dealing with a broad, inchoate submission made by the appellant on s 261, it is not possible to discern the argument that was before the Member on this discrete point.
I would remark that it is not the duty of a Member in a busy tribunal to deal with every argument that is wafted across the bar table. The argument needs to be articulated in a manner that is capable of being understood, is material to the matters in dispute and which is based upon established facts. In Wang v State of New South Wales[38] the Court of Appeal stated the following:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.
As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language (addressed above) and the submissions in relation to wrongful arrest (addressed below). Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.” (emphasis added)
[38] [2019] NSWCA 263 (Wang), [63]–[65].
The approach referred to in Wang and Ming defines the obligation to give reasons.
In this matter the submission about s 261 and its application to the facts of this case was not developed. The single fact that was relied upon by the appellant was the assertion that no claim had been made. This fact was not established (see Ground One above). It is hard to see what the Member was being called upon to decide as the appellant gave him little assistance. In my view, this is precisely the type of argument, namely an argument which was not decided by the Member, to which the passages from Wang and Ming (above) are directed.
As a result, even though the Member was in error not to deal with the arguments (such as they were) on ss 254 and 261, by definition – given that the appellant was not entitled to raise these matters as they had not been disputed – this error cannot affect the result. For intervention on appeal, the error must have affected the result.[39]
[39] Walshe.
I also do not consider that the Member was duty bound to decide the argument about whether s 261 was enlivened, given the manner in which that argument was advanced.[40]
[40] Wang.
Ground Three has not been established and as a consequence, it is dismissed.

As to Ground Four

The appellant frames the argument in this ground in the following manner:
“The Appellant Employer referred the Member to [the] distinction between the nature and conditions allegations and the accepted frank injury on 29 July 2019. Submissions were made to the effect that it was necessary to distinguish between the two different injuries as they would need to be assessed separately as the mechanisms of injury were different. Once again, the Member failed to deal with those submissions and, in the Appellant Employer’s submission, erred in referring those matters for assessment together.
The Appellant Employer submits that if it was accepted that the Respondent Worker had made a valid claim for compensation in respect of injury resulting from the nature and conditions of employment, a finding ought to have been made by the Member in relation to the date of injury in respect of that claim. The Member needed to determine whether it was a disease injury and, if so, the deemed date of injury. That deemed date would not, in the Appellant Employer’s submission, have necessarily been 29 July 2019 (particularly given the Respondent Worker returned to work for the Appellant Employer following the 29 July 2019 injury). In any event, the Member made no finding in relation to the nature of the injury, whether employment was a substantial contributing factor, whether employment was the main contributing factor (if it was a disease/aggravation of a disease), or in relation to the deemed date of injury (if it was a disease/aggravation of a disease). The Member did not distinguish or make findings in relation to the injuries resulting from the frank incident on 29 July 2019, and those resulting from the nature and conditions of employment.”[41]
[41] Appellant’s submissions 2 August 2023, [4(a)–(b)].
In response, the respondent says:
“The employer's submissions proceed on the basis that there was an accepted frank injury. This is not an accurate description of the claim that was made and accepted. The claim that was accepted, as described above with reference to the section 78 notice, namely, a claim for injury as a result of repetitive heavy, lifting, bending and twisting. While an injury date was, correctly, given as 29 July 2019, that being the date upon which the worker suffered severe and disabling symptoms, the injury remains injury of the type defined in sec 4(b)(ii).”[42] (emphasis in original)
[42] Respondent’s submissions 5 September 2023, [25].

Consideration

I do not accept the respondent’s submission in response to this ground about the effect of the s 78 notices. The first s 78 notice in the ARD is dated 19 July 2022[43] and it accepts that an injury occurred to the lumbar spine on 29 July 2019,[44] but then clearly disputes what is described as a “consequential injury to the cervical spine and shoulders.” The next s 78 notice in the ARD is dated 15 October 2020[45] which disputes that the respondent is entitled to permanent impairment lump sum compensation for his lumbar injury as his WPI does not exceed 10% as required by s 66(1) of the 1987 Act.
[43] ARD, p 20.
[44] ARD, p 23.
[45] ARD, p 27.
The third s 78 notice in the sequence is dated 27 April 2020[46] and this disputes that the respondent is entitled to compensation for “bilateral shoulder and cervical spine injury on 29/07/2019.”
[46] ARD, p 33.
The only injury that had been accepted in the s 78 notices was to the respondent’s lumbar spine on 29 July 2019. The fact that the respondent was pursuing an argument that s 4(b)(ii) of the 1987 Act was engaged with respect to the injuries to the cervical spine and shoulders is noted but it is not an answer to this appeal ground, rather it tends to support the appellant’s complaint.
The essential complaint in this ground is that the Member needed to determine, with respect to the cervical spine and shoulder injuries, “whether it was a disease injury and, if so, the deemed date of injury.”[47] Further the appellant submits, with justification, that the Member has not made any finding in relation to the nature of the injury and whether employment was a substantial contributing factor or if the disease provisions were engaged. These are concepts that the Member was obliged to grapple with in order for the referral to be based upon appropriate findings of injury.
[47] Appellant’s submissions 2 August 2023, [4(b)].
The Member was in error not to undertake this task and deliver findings relating to injury. I appreciate that there may be an argument that the Member’s decision could be construed as deeming 29 July 2019 as the date of injury,[48] but the finding made in this part of the reasons is insufficient for the particular decision with which the Member was tasked.
[48] See reasons [26] and the process of reasoning leading up to that paragraph.
Error has been established. Ground Four has been made out.

As to Grounds Five and Six

Grounds Five and Six are a corollary to that which was argued in Ground Four. As I am going to revoke the Certificate of Determination due to Ground Four being established, and remit the matter to another Member to rehear the matter, I do not need to decide these two grounds as the matters traversed therein will inevitably be argued on remitter.

As to Ground Seven

Ground Seven is argued in a different manner to the previous three grounds. The appellant asserts the following:
“In relation to the left shoulder, it is the Appellant Employer’s submission that the Member erred in concluding there was evidence of any left shoulder pathology, or injury to the left shoulder. The Member pointed to no actual evidence of any pathological change in the left shoulder such as to support any finding of injury. The Appellant Employer made clear submissions that there were no scans or investigations of the left shoulder, only references to radicular pain in the left shoulder flowing from the neck condition.
The Appellant Employer says there is no evidence to support the Member’s finding of pathology in the left shoulder, such as to have enabled the Member to conclude that the Respondent Worker suffered an ‘injury’ to the left shoulder as alleged (or at all).”[49]
[49] Appellant’s submissions 2 August 2023, [7(a)–(b)].
The respondent says that there was no error in respect of the finding of injury to the left shoulder, arguing:
“The [respondent], whose credit was the subject of particularly favorable comment by Dr Powell, as was noted by the member at [13], reported pain in his left shoulder and gave an account of very demanding work involving the left shoulder amongst other body parts. The left shoulder was not painful prior to the commencement of the worker’s duties for the employer. By 29 July 2019, however, the left shoulder had become painful. The appellant does not challenge the proposition that the rendering painful of an asymptomatic condition amounts to an injury. There was medical evidence supporting the proposition that the symptoms in the left shoulder were causally related to the work that [the] worker had performed, and the member accepted this evidence. The question of the existence and extent of permanent impairment will be a matter for the medical assessor.”[50]
[50] Respondent’s submissions 5 September 2023, [33].

Consideration

The appellant has not specified where in the decision the offending finding regarding injury to the left shoulder was made. Reading the decision, it appears that the Member’s findings of left shoulder pathology are the following passages:
“The [appellant] makes the point that whilst Dr Gehr diagnoses right shoulder and left shoulder pathology in his report of 3 March 2022, his earlier report of 28 July 2020 makes reference only to the [respondent’s] neck and back.
There is in my view sufficient reference to the [respondent’s] left and right shoulder pathology together with the [respondent’s] statement dated 28 February 2023 and the opinion of Dr Gehr to support the view that on the balance of probabilities the [respondent] suffered injury to his cervical spine, lumbar spine and both shoulders by reason of his exposure to work up until and on 29 July 2019.”[51]
[51] Reasons, [25]–[26], footnotes omitted.
Dr Gehr, in his extensive report of 3 March 2022,[52] records various findings in relation to the left shoulder including “positive impingement” and “rotator cuff muscle wasting”.[53] The doctor diagnoses “[l]eft shoulder pain with rotator cuff muscle wasting and onset of loss of range of motion since my previous examination.”[54]
[52] ARD, p 88.
[53] ARD, p 103.
[54] ARD, p 104.
I do not accept the appellant’s submission that the Member pointed to no actual evidence of pathological change in the left shoulder or that there was “no evidence to support the Member’s finding of pathology in the left shoulder”.[55] The criticism is that scans or investigations were required to substantiate such a finding.[56]
[55] Appellant’s submissions 2 August 2023, [7(b)].
[56] Appellant’s submissions 2 August 2023, [7(a)].
It is apparent that in coming to his decision that there was pathological change in the left shoulder, the Member relied upon Dr Gehr’s opinion as evidencing the required pathological change. There is no submission as to why the Member was wrong in relying upon Dr Gehr’s view. If one accepts Dr Gehr’s opinion, injury has been established in the sense as described by the High Court in Military Rehabilitation and Compensation Commission v May.[57]
[57] [2016] HCA 19 (May), [45]–[56].
However, and this is the problem with the Member’s decision generally, there is no precise finding of injury, whether injury in the ‘primary sense’ as referred to in May, or disease.
The precise error alleged by the appellant in Ground Seven has not been established. But as the Certificate of Determination is to be revoked, it was necessary to consider this ground for the purposes of drawing these issues to the attention of parties so that the argument about frank injury and disease, which is a live issue in this matter, might be fully ventilated on remitter.
Ground Seven is dismissed.

DECISION

The Certificate of Determination dated 5 July 2023 is revoked. The matter is remitted to another Member for re-determination in accordance with these reasons.

Judge Phillips

PRESIDENT

21 May 2024