Dent v Coles Group Supply Chain Pty Ltd - [2024] NSWPICPD 81

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPICPD 81
APPELLANT:	Dean Jonathan Dent
RESPONDENT:	Coles Group Supply Chain Pty Ltd
INSURER:	Coles Group Limited
FILE NUMBER:	A1-W8542/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	11 December 2024
ORDERS MADE ON APPEAL:	1. The appellant’s application to adduce fresh evidence on appeal pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is rejected. 2. The Certificate of Determination dated 20 February 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Fresh evidence – s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 - CHEP Australia Ltd v Strickland [2013] NSWCA 351 considered and applied – jurisdiction of Personal Injury Commission dependant upon existence of a dispute – Skates v Hills Industries Ltd [2021] NSWCA 142 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Walker Law Group
Respondent:
Mr T Grimes, counsel
DECISION UNDER APPEAL:	Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	20 February 2024

INTRODUCTION

Dean Dent (the appellant) was employed by Coles Group Supply Chain Pty Limited (the respondent) and worked as an order selector from 11 November 1999 until 22 March 2005. He was made redundant from his employment in 2007.[1]
[1] Application to Resolve a Dispute (ARD), pp 1–3.
In 2002 and 2004, during the course of his employment, the appellant suffered injuries to his left shoulder. The respondent accepted liability for both injuries.
On 5 May 2023, the appellant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 32% whole person impairment (WPI) for the injury sustained to his left shoulder and also an injury to his right shoulder. The respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 October 2023 denying liability for both the left and right shoulder.[2]
[2] ARD, p 32.
On 14 November 2023 the appellant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) claiming lump sum compensation for the bilateral shoulder injuries, or in the alternative, the right shoulder condition as consequential to the left shoulder.
The matter was listed before Member Sweeney (as he then was), being heard on 1 February 2024, with both parties making oral submissions. The respondent accepted liability for the left shoulder injury however maintained its dispute in respect of the right shoulder. In a written decision dated 20 February 2024,[3] the Member found in favour of the respondent that there was no injury to the right shoulder or a consequential medical condition of the right shoulder.
[3] Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68 (reasons).
The appellant appeals from that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH EVIDENCE

I would note that the appellant seeks to rely on two statements which go to what transpired in the preliminary conference. At paragraph 2.5 of the appellant’s submissions the following is put:
“NEW EVIDENCE
The worker relies on the statements of Steve Walker and Ivica Covic, in order to address the Member’s version of the matters discussed at the preliminary conference.”
This application for fresh evidence is then developed in the following manner:
“20. Moreover, and regrettably, the Member’s version as to what occurred at the preliminary conference is improbable and at odds with the recollection, and record, of the worker’s representatives, Mr Walker and Mr Covic.
21. It will be noted that Mr Walker and Mr Covic confirm that Mr Walker did not proceed ‘on the basis both injury and consequential medical condition of the right shoulder were issues that required resolution or determination by the Commission at an arbitration hearing’.
22. As Mr Walker and Mr Covic confirm, the issue of whether the worker had developed a consequential medical condition of the right shoulder as a result of the left shoulder injury was not mentioned or considered. As Mr Walker notes further, he would have contested any suggestion that there was a dispute before the Commission regarding the consequential of the 1998 Act [sic], would have stated that the respondent would need to make an application pursuant to section 289A of the 1998 Act if it wished to raise a dispute as to the development of a consequential condition, and would recall discussion regarding such adversarial discussion had it occurred.”
The appellant in his submissions in reply dated 17 May 2024 at paragraphs [1]–[8], sets out in more detail why he says that the Member was wrong in his finding at reasons [40], which the appellant alleges misrepresents what occurred at the preliminary conference. I have read these paragraphs but do not repeat them.
The respondent opposes the appellant’s reliance on additional or fresh evidence, citing the provisions of s 352(7) of the 1998 Act. This reference I take to be to s 352(6) of the 1998 Act, which sets out the requirements to be satisfied for the Commission to receive fresh evidence on appeal.
I will deal with this application for fresh evidence below.

THE MEMBER’S REASONS

The appellant’s case was that the right shoulder injury occurred directly as a result of the nature and conditions of his employment with the respondent, or in the alternative, was consequential to the accepted left shoulder injury.
As part of his submissions, the appellant argued that the respondent was precluded from denying he developed a consequential condition in the right shoulder resulting from the left shoulder injury, as there was no explicit denial of it in the s 78 notice.[4]
[4] Reasons, [10].
The appellant also argued that the arduous physical nature of the appellant’s employment with the respondent should be accepted as to cause the right shoulder injury, and any treating doctors’ notes suggesting the contrary should be treated with caution as provided in Davis v Council of the City of Wagga Wagga and other authorities.[5]
[5] Reasons, [12].
The appellant submitted that the opinion of General Surgeon, Dr Endrey-Walder, who provided a report dated 1 May 2023 addressed to the appellant, should be accepted as his opinion provided a logical medical hypothesis as to the reason the right shoulder condition resulted from the injury, a theory which was not rebutted by Dr Powell who was engaged by the respondent. The appellant submitted that Dr Powell’s opinion on causation was no more than a mere ipse dixit. The appellant referred to evidence of treating doctors who expressed opinions consonant with that of Dr Endrey-Walder and also referred to other supporting factors of a causal connection between the injury and the right shoulder condition, including the arduous nature of the employment with the respondent and the otherwise lack of explanation for the development of gross osteoarthritis in the right shoulder of a young man.[6]
[6] Reasons, [14]–[15].
In its submissions in reply, the respondent argued it was not precluded from denying the consequential condition to the right shoulder as it was evident from the s 78 dispute notice that it denied all liability for the medical condition, whether it was a direct or consequential injury.[7]
[7] Reasons, [11].
The respondent submitted that the Member was not obliged to accept evidence inconsistent with the weight of other evidence and the contemporaneous medical evidence lacked any reference to the right shoulder injury whilst in the employ of the respondent.[8]
[8] Reasons, [11], [13], [16].
The Member first considered whether the respondent was precluded from disputing the causal nexus between the left shoulder injury and the right shoulder condition. The Member ultimately rejected the appellant’s submission that the respondent failed to explicitly deny the consequential right shoulder condition in the dispute notice. The Member highlighted the following passages in the dispute notice which the Member decided clearly conveyed the respondent had formed the view that the appellant did not have a consequential condition of his right shoulder:
“For the reasons outlined above, Dr Powell did not consider your employment with Coles to represent the main contributing factor in either the development or aggravation of the degenerative disease involving the right shoulder and is of the view there is no causal, temporal or consequential link between them …
… Dr Powell assessed 9% WPI for the left shoulder. He did not provide an assessment for the right shoulder as he did not believe there is sufficient evidence to conclude that your right shoulder condition is the result of any injury sustained in the course of your employment with Coles.”[9]
[9] Reasons, [36]–[40].
Once the Member had determined that the respondent was not precluded from disputing the consequential right shoulder condition, the remaining issue was whether the appellant had sustained an injury to his right shoulder or in the alternative, a consequential medical condition of his right shoulder resulting from the accepted left shoulder injury.
The Member considered the appellant’s statement dated 13 November 2023[10] and noted he had sustained a number of injuries to his left shoulder and upper arm throughout the course of his employment with the respondent. The Member noted the injury to the appellant’s left shoulder on 14 December 2001 required treatment from his general practitioner, Dr Kam and one month off work. The appellant sustained a further injury on 2 August 2004 while lifting crates of soft drink above shoulder height. On this occasion, the appellant came under the care of orthopaedic surgeon, Dr Goldberg where he received ultrasound-guided injections into the left shoulder.[11]
[10] ARD, pp 1–5.
[11] Reasons, [18]–[20].
The Member noted that in 2005 the appellant ceased working for the respondent as there were no light duties available consonant with the condition of his left shoulder. He was made redundant in 2007.[12]
[12] Reasons, [21].
The appellant stated that during the time he was having issues with his left shoulder, his right shoulder started becoming sore. He believed he reported, or at least discussed, the right shoulder injury with the respondent.[13]
[13] Reasons, [22].
The appellant provided information in relation to his subsequent employment between 2005–2017 including cutting timber for Easy Build, retail work for Bias Boating and finally general maintenance for the Royal Institute of Deaf and Blind Children. The appellant states that since ceasing employment with the respondent, he never performed work that involved lifting his arms above shoulder height or repetitive heavy lifting.[14]
[14] Reasons, [23]–[25].
The appellant stated that his right shoulder deteriorated over the years due to compensating for his left shoulder pain. He first consulted Dr Daoud in relation to his right shoulder in September 2018 when he underwent an x-ray and was referred to orthopaedic surgeon, Dr Burneikis. Dr Burneikis recommended a right shoulder replacement, which was also recommended by Dr Seung-Min Youn, an Orthopaedic Fellow of Dr Bateman. The appellant ultimately underwent right shoulder replacement surgery on 29 January 2020.[15]
[15] Reasons, [26]–[27].
The Member considered the expert reports of Dr Endrey-Walder and Dr Powell, both of whom recorded a similar history in relation to the left shoulder, however had competing opinions regarding the right shoulder. Dr Endrey-Walder was of the opinion that the nature of the appellant’s work with the respondent caused symptoms in both shoulders and the right shoulder was “at least in part being consequential injury following the multiple injuries recorded at the left shoulder.”[16]
[16] Reasons, [28].
Dr Powell who was engaged by the respondent, provided a report dated 29 September 2023 and believed there was unlikely to be any causal connection between the soft tissue injuries of the left shoulder in 2002 and 2004 and the subsequent development of advanced osteoarthritis in the right shoulder. The doctor noted there was no history of a frank injury to the right shoulder in the course of the appellant’s employment with the respondent and the first investigation to the right shoulder was not until 2019 where the x-ray and MRI scan demonstrated advanced glenohumeral joint osteoarthritis with almost complete loss of joint space which the doctor said was unusual in a gentleman of the appellant’s age. The doctor also noted that the appellant gained employment in a number of physically demanding roles after ceasing work for the respondent without any specific history of injury.[17]
[17] Reasons, [30]–[34].
The Member considered the treating medical evidence and noted that throughout the appellant’s treatment to his left shoulder, there was no reference of any complaint to the right shoulder, apart from a clinical note from the appellant’s treating GP, Dr Kam on 12 March 2003 and 15 March 2003 which recorded the appellant “… fell on his (R) shoulder 2 weeks ago, very painful and unable to abduct without pain.”[18] The appellant was referred for an x‑ray and ultrasound; the ultrasound may have shown a supraspinatus tear however the Member noted it was not possible to draw any inferences from the notes as to the nature of the injury suffered by the appellant at that time.[19]
[18] Reasons, [41].
[19] Reasons, [41]–[43].
The respondent submitted that the injury to the right shoulder recorded by Dr Kam was significant and occurred outside the appellant’s employment. The appellant did not make any submission in relation to the event and did not suggest the injury occurred at work.[20]
[20] Reasons, [44].
The Member analysed the treating doctors’ notes and noted the next reference to the right shoulder pain did not occur until 20 April 2018 when the appellant’s GP, Dr Tadros, recorded the appellant’s various complaints to the right shoulder including chronic pain for two years, restricted range of motion and tenderness.[21]
[21] Reasons, [45].
The Member noted the appellant was referred to orthopaedic surgeon, Dr Burneikis in February 2019 when Dr Burneikis noted a history of right shoulder stiffness for more than ten years, and severe pain in the last twelve months. There was no history of a single trauma event. The appellant complained to Dr Burneikis that he had worked for the respondent for six years and after four years, he started experiencing right shoulder pain and was unable to lift his arm above shoulder height. Dr Burneikis concluded the appellant had advanced osteoarthritis of the right shoulder which he noted was unusual for someone of his age and no history of prior surgery.[22]
[22] Reasons, [46]–[47].
The Member noted that apart from Dr Endrey-Walder, the only other opinion that provided support for the appellant’s right shoulder injury was from Dr Youn in his report dated 19 December 2019[23] who recorded that the appellant had been having right shoulder trouble over the last twelve years following an incident when he was lifting heavy objects and could not lift his shoulder at the time. Dr Youn recorded the severe arthritis could be related to the previous trauma. The Member was not persuaded by the history recorded by Dr Youn given the frank injury had not been referred to in any of the contemporaneous medical histories or the appellant’s own statement, nor was it pleaded or relied upon in the current proceedings.[24]
[23] ARD, p 71.
[24] Reasons, [54]–[55].
The Member noted the report of orthopaedic surgeon, Dr Limbers, who first examined the appellant in relation to his left shoulder symptoms in August 2004, at the request of the respondent, recorded full movements in the left shoulder with slight prominence of the left acromioclavicular joint. Dr Limbers concluded there was no permanent impairment of the left shoulder.[25]
[25] Reasons, [51]–[52].
Sport Physician, Dr Muratore examined the appellant in November 2005 at the request of the respondent after recurrent discomfort in the left shoulder. Dr Muratore examined the appellant’s right shoulder and recorded it as normal.[26]
[26] Reasons, [53].
After considering the treating medical evidence and not being persuaded by the history recorded by Dr Youn, the Member noted the only remaining opinion that supported the appellant’s right shoulder injury was Dr Endrey-Walder who concluded the right shoulder symptoms were due to the nature of the appellant’s work. The Member was not persuaded by Dr Endrey-Walder’s opinion given the lack of any right shoulder complaint within the treating medical evidence for a period of ten years after the appellant first complained of left shoulder symptoms. The Member also noted that in 2005, Dr Muratore did not record any right shoulder complaints and after examination found the right shoulder to be “normal”.[27]
[27] Reasons, [56].
The Member concluded the appellant had not established injury to the right shoulder in the course of his employment.[28]
[28] Reasons, [58].
In consideration of whether the appellant had suffered a consequential medical condition to the right shoulder, the Member applied Kooragang Cement Pty Limited v Bates[29] and noted:
“As the claim before the Commission is solely for permanent impairment, the jurisdiction of a member is to determine liability issues including, in this case, whether the [appellant’s] left shoulder injuries caused or materially aggravated the osteoarthritis in his right shoulder. Whether the injury or aggravation is transient or permanent, or whether a deduction is required to be made by reason of any prior or supervening event is solely within the prerogative of a medical assessor”.[30]
[29] (1994) 35 NSWLR 452 (Kooragang).
[30] Reasons, [61].
The Member reiterated Dr Endrey-Walder’s opinion, “[o]n the right side there would also be an element of overuse, secondary to the left shoulder problems over the previous years.” The Member noted that neither of the appellant’s treating surgeons, Dr Burneikis nor Dr Youn commented on the likelihood of a connection between the left arm injury and the development of osteoarthritis in the right arm. Dr Burneikis had hypothesised the right shoulder may relate to a vascular necrosis however the Member noted there was no radiological evidence consistent with that possibility. Dr Powell rejected a connection between the left shoulder injuries and the subsequent development of osteoarthritis in the right shoulder.[31]
[31] Reasons, [62]–[63].
The Member concluded that the histories recorded by Dr Youn and Dr Burneikis were inconsistent with the contemporaneous medical evidence. The Member again noted that the examination of the appellant’s right arm undertaken by Dr Muratore, in 2005, several months after the appellant ceased working for the respondent, revealed a normal range of movement in the right arm and Dr Mitchell in April 2006 recorded that the right arm (including shoulder, elbow, wrist and hand) were all normal. The Member also considered that Dr Kam examined the appellant’s left shoulder in May 2006 and recorded “no local tenderness, good range of movement” and in August 2008 recorded that the appellant was generally well, was working in a boating shop and there had been no further injury. The appellant consulted Dr Kam intermittently until September 2011 and during that time there was no reference to difficulties with the left shoulder, nor was there any reference to the right shoulder problem.[32]
[32] Reasons, [64]–[66].

The Member noted that although caution needs to be taken when considering treating medical evidence, the memory of a witness recounting events from a long time ago is often flawed.[33] The Member noted the histories recorded by Dr Burneikis and Dr Youn were recalling events thirteen years prior and were inconsistent with other treating specialists who had been treating the appellant throughout the duration.[34]
[33] Coote v Kelly; Northern v Kelly [2016] NSWSC 1447.
[34] Reasons, [67].
The Member concluded that Dr Endrey-Walder’s opinion of an “element of overuse” was vague and unsatisfactory and did not address the question of whether the medical condition of osteoarthritis results from injury.[35]
[35] Reasons, [69].
The Member ultimately found that the appellant did not establish on the balance of probabilities that he suffered an injury in the course of his employment to the right shoulder or that the relevant medical condition of the right shoulder results from the accepted employment injury to the left shoulder.[36]
[36] Reasons, [70].
The Certificate of Determination issued on 20 February 2024 records:
“1.     The [appellant] has not established that he suffered injury to his right shoulder or a consequential medical condition of his right shoulder as a result of employment injury.
2.     Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment as a result of injury to the [appellant’s] left upper extremity (shoulder) which is deemed to have occurred on 5 May 2023 (date of claim) as a result of his employment with the respondent on and before 22 March 2005.
3.     Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, the Application to Admit Late Documents dated 22 January 2024 and the documents attached to each.”

LEGISLATION

Section 78(1) of the 1998 Act provides:
“(1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.”
Section 79(2) of the 1998 Act provides:
“(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.”
Section 4(a) and (b) of the 1987 Act provides:
“injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”
Section 352(6) of the 1998 Act provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”

GROUNDS OF APPEAL

The appellant relies on two grounds of appeal. They are:
Ground One – The Member made an error of law in assuming that he had jurisdiction to determine whether the worker had a consequential condition affecting his right shoulder resulting from injury to his left shoulder.
Ground Two – The Member made an error of mixed fact and law, in having chosen to proceed beyond jurisdiction, and beyond matters he was entitled to determine, holding that the worker did not suffer a consequential medical condition of his right shoulder as a result of injury to his left shoulder.

A few principles in relation to the Jurisdiction of the Commission

The Commission’s jurisdiction (or perhaps more accurately, its authority to hear disputes) is not inherent. Rather, the Commission’s jurisdiction is derived from the statutes that enable various disputes to be filed in the Commission. In workers compensation matters, the Court of Appeal, in the context of a medical dispute much like the one in this matter, found that the fundamental legal concept is a dispute.[37] In Skates, Leeming JA noted that the “… dispute will have been identified by a written exchange of competing claims.”
[37] Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), [44]–[50] per Leeming JA.
In terms of the written exchange of competing claims, this refers to the process of an injured worker making a claim and the insurer responding by issuing a notice under s 78 of the 1998 Act. In relation to the contents of the notice, Deputy President Roche in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[38] stated in relation to the former s 74 notice, but the principle remains relevant to s 78 notices, “[a] section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.” These remarks are consistent with what now appears in s 79(2) of the 1998 Act as to what is required of the s 78 notice.
[38] [2007] NSWWCCPD 227 (Mateus), [45].
To the Deputy President’s remarks in Mateus I would add the following. Section 78 notices are not to be accorded the quality of a pleading normally found in a common law matter. It is a plain language document that is required to identify the dispute in concise, readily ascertainable terms and the issues that were relevant to that decision.

DISCUSSION

Appellant’s application to rely on fresh evidence

This application for fresh evidence is an adjunct to the allegations pursued in Ground One of the appeal. Ground One says that the issue pertaining to the consequential injury to the appellant’s right shoulder had never been disputed and thus the Commission did not have the authority to determine that issue. The fresh evidence sought to be relied upon challenges the Member’s statement at reasons [40] as to what transpired at the preliminary conference. This evidence from the appellant’s solicitor and paralegal take issue with the assertion that the matter of the consequential condition to the appellant’s right shoulder had been addressed at the preliminary conference.
At reasons [40] the Member said:
“While the reference to right shoulder injury in 2002 and 2004 in the first paragraph quoted above is obviously an error, in my opinion the notice clearly conveys that the respondent had formed the view that the [appellant] did not have a consequential condition of his right shoulder as a result of the left shoulder injuries. At the preliminary conference in the matter both parties proceeded on the basis that both injury and consequential medical condition of the right shoulder were issues that required resolution or determination by the Commission at an arbitration hearing. While it may not be incumbent on the [appellant] to specifically raise noncompliance with s 78 at the preliminary conference as an issue, the manner in which the conference was conducted is completely consistent with my view that the notice unambiguously puts in issue a consequential medical condition of the right shoulder.”
These remarks appear after reasons [37]–[39] where the Member had extracted passages from the s 78 notice which he then relied on to make the finding that he did at reasons [40].

Consideration

The ability for a party to adduce fresh evidence on appeal is found in s 352(6) of the 1998 Act. The appellant has not framed his argument with any reference to this provision. However, the provision is clear and as the Court of Appeal found in CHEP Australia Ltd v Strickland,[39] it provides two threshold questions which are expressed as alternatives. The Commission has a discretion to admit fresh evidence if one of the two alternatives is satisfied.
[39] [2013] NSWCA 351, [27].
In this matter, I do not accept that the first alternative has been established. This is not an issue about the availability of evidence, and I do not read the appellant’s submission as arguing this aspect of the section.
The appellant’s argument, it seems to me, is more directed to the second alternative, namely that to exclude the evidence “would cause a substantial injustice in the case”. This is the purport of the appellant’s submissions at paragraph [5] of his submission in reply dated 17 May 2024 which says:
“The Member’s statement [at reasons [40]] adversely affects the rights of the worker. The worker and his representatives are entitled to address the Member’s statement in the interests of procedural fairness and preservation of the worker’s rights to receive a substantively correct determination of the issues that were formally in dispute and which circumscribed the jurisdiction of the Commission.”
I have read the statements of Mr Walker, solicitor, and Mr Covic, paralegal in the employ of Mr Walker, both dated 19 March 2024. Attached to Mr Walker’s statement is a copy of the notes taken by Mr Covic at the preliminary conference on 13 December 2023. With respect to the author of the notes, they do not advance the appellant’s arguments. Clearly the notes do not purport to be a record of all that was said and the relevant line reads “Issues as per dispute, WPI only, both shoulders.” Dispute could be a reference to the s 78 notice, the claim as pleaded in the ARD or both. The reference to “both shoulders” is similarly opaque. There is no support in this document for the assertion that the issue of the consequential condition of the appellant’s right shoulder was not addressed.
Both statements suffer from failings as to content and form which affect their weight. I understand that they were drafted some four months after the preliminary conference, apparently based in part upon the note of the proceeding which is brief to the point of obscurity. I accept that the rules of evidence do not apply to Commission proceedings and that regard should not be had to technicalities or legal forms.[40] But such evidence has to provide the Commission with a satisfactory basis to make relevant findings. The balance of the statements are not evidence as such, rather they posit submissions as to what the solicitor or paralegal “would” have done had something occurred. I am not much assisted by these passages which are speculative in nature, the probative value of which is slight.
[40] Section 43 of the Personal Injury Commission Act 2020.
This fresh evidence is not required for me to determine whether the respondent had properly disputed the consequential condition to the right shoulder in the s 78 notice. The notice is in evidence and is available for my close examination. The essence of the Member’s finding at reasons [40] is based upon his construction of the notice. The reference to the preliminary conference in the second half of reasons [40] I accept is deployed to provide support for the finding that had already been made about the effect of the notice. But these remarks do not go to the correct construction of the notice. I am in as good a position as the Member to consider that document and to decide whether the Member was in error in construing it as he did.
The appellant’s application to adduce fresh evidence is rejected.

As to Ground One

The appellant submits that the s 78 notice issued by the respondent on 10 October 2023 “did not raise any issue contesting that the condition of the worker’s right shoulder was a consequential condition resulting from the worker’s left shoulder injury.”[41]
[41] Appellant’s submissions dated 19 March 2024 (appellant’s submissions), [1].
The appellant continues:
“As will be noted from the reasons recorded beneath the heading ‘Reason for disputing liability’, at page 34 of the Application to Resolve a Dispute, the dispute raised in relation to the right shoulder was confined to the second and third bullet points. The contents of those paragraphs were confined to disputing injury pursuant to section 4(a), and substantial contributing factor pursuant to section 9A.
The insurer’s case was confined to whether the worker had suffered a direct and compensable condition affecting the right shoulder, within the meaning of section 4. It considered that no direct and compensable injury had been suffered to the right shoulder.
The insurer had not considered the separate question of whether, distinct from any direct work-related injury to the appellant’s right shoulder, the worker had developed a consequential condition affecting his right shoulder, subsequently developed by the worker in responding to and endeavouring to overcome the weakness affecting his injured left shoulder.”[42]
[42] Appellant’s submissions, [2]–[4].
The appellant trenchantly maintains that the claim of a consequential injury to the right shoulder had not been disputed by the respondent.[43] The appellant says that Dr Powell for the respondent was not asked to consider whether the appellant had suffered a consequential injury to his right shoulder and this is consistent with the respondent not disputing this assertion.[44]
[43] Appellant’s submissions, [7]–[9]; [14]–[18].
[44] Appellant’s submissions, [19].
The appellant asserts that the Commission’s jurisdiction is circumscribed by the issues raised in the s 78 notice and in the absence of a matter being disputed, an application under s 289A needed to made, and no such application was pursued by the respondent.[45] As a result the appellant asserts that the respondent could not raise or rely on an unnotified matter.[46]
[45] Appellant’s submissions, [23]–[28].
[46] Appellant’s submissions, [28].
The appellant says that the Member thereby committed legal error.
In its Notice of Opposition, the respondent points to passages of Dr Powell’s report of 29 September 2023,[47] which it says clearly traverses the allegation that the appellant suffered a consequential injury to his right shoulder. The respondent points to passages where Dr Powell takes the history of the onset of right shoulder symptoms[48] before the doctor provided his opinion, disclaiming any consequential link.[49]
[47] Reply to Application to Resolve Dispute (Reply), p 8.
[48] Respondent’s submissions dated 24 April 2024 (respondent’s submissions), [2].
[49] Respondent’s submissions, [3]–[4].
The respondent notes that the ARD specifically alleged an injury to the right shoulder being consequential to the left shoulder.[50]
[50] Respondent’s submissions, [5].
The respondent thus argues that no s 289A application was required and that “the [appellant’s] submissions that consequential condition to the right shoulder was not in dispute [are] perverse and disingenuous.”[51]
[51] Respondent’s submissions, [15].
The respondent says that reasons [37]–[40] contain no errors and the decision should be affirmed.[52]
[52] Respondent’s submissions, [18].
In reply, the appellant maintains its position that while the s 78 notice disputed injury simpliciter to the right shoulder, it never disputed consequential injury. The appellant also says that a proper reading of Dr Powell’s report reveals that the doctor never considered the development of a consequential injury to the right shoulder.[53] The appellant points to various exchanges between the Member and counsel for the respondent as proving that consequential injury was not in issue.[54]
[53] Reply, pp 14–19.
[54] Appellant’s submissions in reply dated 17 May 2024 (appellant’s reply submissions), [39]–[63].

Consideration

The impugned sections of the Member’s decision appear at reasons [36]–[40], which I set out in full below:
“36. It is first necessary to consider Mr Tanner’s argument that the respondent was precluded from disputing the causal nexus between the [appellant’s] left shoulder injuries and his right shoulder condition.
37.    In accordance with the case law, it is necessary for these reasons to be explicit in the dispute notice given by the employer. In this case the notice only briefly addresses the issue of the consequential condition of the right shoulder. There is also a mistaken reference to the right shoulder in the notice. Nonetheless, I have concluded that the notice did clearly dispute a consequential link between the left arm injury [my emphasis]. The notice recorded the following:
‘Dr Powell considered there is no history of any specific injury to your right shoulder occurring in the course of your employment with Coles and there is unlikely to be any causal connection between soft tissue injuries of the right shoulder in 2002 and 2004 and the subsequent development of advanced osteoarthritis on the contralateral side 15 years later. Dr Powell also considers that in the intervening period you undertook a number of physically demanding roles for various other employers though without specific history of injury.
For the reasons outlined above, Dr Powell did not consider your employment with Coles to represent the main contributing factor in either the development or aggravation of the degenerative disease involving the right shoulder and is of the view there is no causal, temporal or consequential link between them.’ [emphasis by the Member]
38.    Subsequently, the notice states that:
‘Dr Powell assessed 9% WPI for the left shoulder. He did not provide an assessment for the right shoulder as he did not believe there is sufficient evidence to conclude that your right shoulder condition is the result of any injury sustained in the course of your employment with Coles.’ [emphasis by the Member]
39.    The notice continues:
‘You are not eligible for permanent impairment lump sum compensation because your compensable left shoulder injury has not resulted in at least 11% whole person impairment as required by s 66(1) of the Workers Compensation Act 1987.’
40.    While the reference to right shoulder injury in 2002 and 2004 in the first paragraph quoted above is obviously an error, in my opinion the notice clearly conveys that the respondent had formed the view that the [appellant] did not have a consequential condition of his right shoulder as a result of the left shoulder injuries [my emphasis]. At the preliminary conference in the matter both parties proceeded on the basis that both injury and consequential medical condition of the right shoulder were issues that required resolution or determination by the Commission at an arbitration hearing. While it may not be incumbent on the [appellant] to specifically raise noncompliance with s 78 at the preliminary conference as an issue, the manner in which the conference was conducted is completely consistent with my view that the notice unambiguously puts in issue a consequential medical condition of the right shoulder.”
Whether the Member had support for his findings depends upon a review of the dispute as it arose between the parties.
The dispute was raised by letter from the appellant’s solicitors dated 5 May 2023[55] claiming s 66 benefits of 32% WPI, based upon the opinion of Dr Endrey-Walder dated 1 May 2023.[56] Dr Endrey-Walder took a history “… he began experiencing pain on the right side as well, possibly from overuse given the chronic pain at the left shoulder.”[57] In his opinion section, the doctor is of the view that the right shoulder injury is consequential following multiple left shoulder injuries.[58] The doctor then says, “on the right side there would also be an element of overuse, secondary to the left shoulder problems over previous years.”[59] Dr Endrey-Walder gave a combined WPI assessment for both left and right shoulders of 32%.
[55] ARD, p 30.
[56] ARD, p 39.
[57] ARD, p 40.
[58] ARD, p 43.
[59] ARD, p 44.

This is the claim that the s 78 notice responded to.[60] The Member has quoted relevant extracts from the s 78 notice at reasons [37]–[39] which I have set above. I would remark that the notice disavows any liability under s 4(a) of the 1987 Act in respect of the asserted right shoulder injury and separately s 4(b) and s 9A of the 1987 Act with reference to the right shoulder disease injury.[61]
[60] ARD, p 32.
[61] See second and third bullet points at ARD, p 34, [2].
In response to the s 78 notice, the appellant filed an ARD claiming permanent impairment compensation. The injury is described as a “disease” and is pleaded in the following manner:
“As a result of the nature and conditions of his employment, the [appellant] sustained physical injuries to his bilateral shoulders. In the alternative, the right shoulder condition is consequential to the left shoulder. The [appellant] also sustained scarring/TEMSKI. In line with the disease provisions, the date of injury is 5 May 2023, being the date of the s 66 WPI claim.”[62] (emphasis added)
[62] ARD, p 6 of 7.
The first remark I would make is this. If the appellant truly believed that the consequential injury had not been placed in dispute by the s 78 notice, there was no need for the ARD to plead said consequential condition. If one reviews the claim and the s 78 notice in response, it is evident that the consequential right shoulder injury was in contest. This is the exchange of competing claims as was referenced in Skates at [44].
Secondly, a fair reading of the s 78 notice reveals that the notice was dealing with two claims with respect to the right shoulder, one being injury simpliciter (s 4(a)) and disease (s 4(b)). The notice quite clearly differentiated between the two and was not limited, as the appellant asserts, to the claim regarding injury simpliciter to the right shoulder. I reject that submission.
Thirdly, the Member has identified where the notice recounts Dr Powell’s opinion which rejects the assertion of a “consequential link.”[63] I do not accept the appellant’s submission that Dr Powell failed to deal with this question. Further, this is not an “obscure” reference to a document as was criticised in Mateus as not meeting the requirement for identifying issues in a notice. Rather, the reader’s attention is specifically drawn to this aspect of Dr Powell’s opinion in the body of the notice. This aspect of the reasoning in Mateus does not arise.
[63] Reasons, [37].
Fourthly, the appellant attempts to make much of what transpired between the parties during the hearing, referencing aspects of the transcript. This, with respect, fails to address the essential a priori question as to the existence of jurisdiction as described in Skates (see above). The essential question relates to the dispute, namely what was the dispute identified by the competing claims?
The Member made a finding that the respondent had disputed the consequential condition to the right shoulder.[64] This was an available finding based upon a dispassionate examination of the claim and the s 78 notice which was responding to it. As I said above, the s 78 notice does not possess the same quality of a common law pleading. It must identify the issues.[65] The Member was satisfied that the notice did identify the issue. The Member was not in error in terms of how he approached that task. While the Member noted some mistakes in the notice, the dispute about the right shoulder consequential condition claim is evident from a fair reading of the notice.
[64] Reasons, [37], [40].
[65] Mateus.
Error has not been established. Ground One is dismissed.

As to Ground Two

The appellant submits that the worker’s statement that he used his right shoulder more because of his accepted left shoulder injuries was not in dispute and should have been accepted. The appellant points to the radiological evidence, CT and MRI scans which reveal pathology in the worker’s right shoulder.[66] The appellant states:
“That accelerated and severe condition is consistent with the worker’s case of increased reliance on his right arm, as a result of his left shoulder condition.”[67]
[66] Appellant’s submissions, [34]–[38].
[67] Appellant’s submissions, [44].
The appellant states that Dr Endrey-Walder’s opinion regarding the consequential condition suffered in the appellant’s right shoulder is both consistent with the appellant’s evidence and unchallenged by the respondent’s evidence.[68]
[68] Appellant’s submissions, [45]–[52].
The appellant specifically submits that the respondent’s medico-legal expert, Dr Powell, failed to address the question of the existence of a consequential condition in the appellant’s right shoulder.[69] The appellant says that in the 12 paragraphs (reasons [59]–[70]) where the Member “purported” to evaluate the evidence about the consequential condition, nowhere did he reject the appellant’s evidence.[70]
[69] Appellant’s submissions, [51].
[70] Appellant’s submissions, [53].
The appellant says that the Member’s rejection of Dr Endrey-Walder’s opinion is “unsatisfactory” and that the doctor’s opinion is consistent with the history from the appellant. The appellant says that the evidence of overuse was ignored.[71]
[71] Appellant’s submissions, [54]–[58].
The appellant then proceeds to refer to a number of authorities that he relies on in support of this ground.[72] In summary the appellant submits that the Member ignored certain relevant evidence, contrary to these authorities.
[72] Appellant’s submissions, [59]–[63].
The appellant concludes by challenging the manner in which the Member approached the evidence of the appellant’s treating medical practitioners. The appellant says it is “… misdirected and unfair. It is not the task of a treater to provide opinions as to causation.”[73]
[73] Appellant’s submissions, [64].
After referring to a number of authorities about the task of a Presidential member on appeal, the respondent says that contrary to these authorities, the appellant has not identified error, either of fact or of law or that the Member’s decision was wrong. The respondent then goes through the Member’s decision, by reference to paragraph numbers from the decision, where the evidence has been assessed by the Member and a finding made.[74] This is in response to the appellant’s submission that relevant evidence was not referred to. The respondent also says that the appellant is wrong to assert that the appellant’s account had not been disputed.
[74] Respondent’s submissions, [25]–[29].
In reply, the appellant restates his initial appeal submissions on this ground, namely that the Member failed to address the worker’s evidence.[75] The appellant also says that since the consequential injury had not been disputed, there is no dispute about the merits of this condition. The appellant says that there was no countervailing case.
[75] Appellant’s reply submissions, [82]–[83].

Consideration

I commence this consideration by rejecting the appellant’s assertion in his reply submission that the consequential injury to the right shoulder had not been disputed, and that the Member was wrong to have so found. For the reasons I have expressed in Ground One, this submission has not been substantiated.
I would also record that this appeal ground is limited to disputing the Member’s rejection of the assertion that the appellant suffered a consequential injury to his right shoulder. The Member’s finding adverse to the appellant with respect to injury to the right shoulder[76] has not been challenged on appeal.
[76] Reasons, [58].
The appellant asserts that the evidence about his right shoulder “was not in dispute and should have been accepted.”[77] This submission immediately follows an extract from the appellant’s statement where the appellant relates how his right shoulder condition developed.[78]
[77] Appellant’s submissions, [34].
[78] Appellant’s submissions, [33].
Whilst the consequential injury had been disputed, I read this submission as being directed to the evidence given by the appellant as to these matters not being disputed, in a factual sense.
The Member summarised the salient aspects of the appellant’s evidence at reasons [18]–[27]. In particular, reasons [22] contains the relevant history regarding the development, in the appellant’s mind, of the consequential right shoulder injury. This evidence is from the appellant’s statement.[79] The Member then proceeds to deal with the consequential condition claim from reasons [59]. The Member, appropriately in my view, articulates the question that he must determine[80] and directs himself to the principles flowing from Kooragang as being the correct legal test to apply. The Member then reviewed the medical evidence which was contemporaneous to the employment with the respondent and found, in those treating records,[81] that there was no reference to any right shoulder problems.
[79] Appellant’s statement evidence, 13 November 2023, ARD p 3, [30].
[80] Reasons [59]–[60].
[81] Reasons, [64]–[67] regarding Drs Muratore, Kam and Mitchell.
The Member then says that “[w]hile one must view the medical evidence referred to above with some caution, it is equally true that the memory of witnesses when recounting events which occurred a long time ago is often flawed.”[82] This approach to medical records, which are created for reasons to do with treatment rather than legal proceedings, is a reference to Mason v Demasi[83] which is entirely an apt entirely approach for the Member to take to these medical records.
[82] Reasons, [67], citing Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 and the authorities referred to therein.
[83] [2009] NSWCA 227, per Basten JA.
The Member then says:
“In the absence of any recorded complaint, and in the context of two normal medical examinations of the [appellant’s] right shoulder by specialist medical practitioners, I find it difficult to accept his dramatic history of being unable to raise his right arm above shoulder level while he was employed by the respondent.”[84] (emphasis added)
[84] Reasons, [68].
I would remark that prima facie, a court or tribunal will accept unchallenged evidence, however this position is not absolute.[85] In Hamod the following was said:
“Thus, even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or upon unproven assumptions.”[86]
[85] Hamod v State of New South Wales [2011] NSWCA 375 (Hamod), [336]–[340].
[86] Hamod, [338].
It is apparent that the Member considered the evidence of the appellant to be unreliable in the Hamod sense.[87] The appellant’s main complaint is that his evidence was not challenged, it was ignored by the Member and in particular, the Member ignored the appellant’s evidence about the overuse of his right shoulder consequent upon his accepted left shoulder injury. I do not accept that this argument fairly reflects what the Member did. There was a significant gap between the alleged right shoulder injury and the first mention of it in medical records. The Member examined the medical records which were proximate to the asserted right shoulder injury, noting that the appellant had stated he was suffering pain and discomfort in that shoulder. There was no contemporaneous complaint recorded. Indeed, as the Member records,[88] Dr Mitchell examined the appellant and in particular his right shoulder and reported on 12 April 2006 that it was “normal”. Additionally, the Member examined the treating orthopaedic surgeons’ records (Drs Burneikis and Youn) and noted that neither made any connection between the left shoulder injury and the development of pain/arthritis in the right shoulder.
[87] Reasons, [68].
[88] Reasons, [65].
I would also note that the Member had set out the appellant’s evidence, considered it but was not persuaded by it. Principally due to the effluxion of time affecting its reliability,[89] and the unlikelihood of his “dramatic history” which has now been given and which did not appear in the contemporaneous medical records.[90]
[89] Reasons, [67].
[90] Reasons, [68].
The passage from Kooragang cited by the Member[91] was the proper approach. The question as to whether the injury resulted from the asserted injury is a question of fact. This involved the Member exercising an evaluative judgement regarding the evidence. In Australian Air Express Limited v Langford,[92] McColl JA (Ipp and Tobias JJA agreeing) made the following observations about the exercise of an evaluative judgement by a first instance decision maker;
“The first concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge.”
[91] Reasons, [59].
[92] [2005] NSWCA 96, [15].
Usually such first instance findings will stand uncorrected unless it can be shown that the decision maker has acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable”.[93] I should say that the appellant’s assertions with respect to his right shoulder have not been incontrovertibly established.
[93] DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472, 479–481.
I accept the respondent’s submission that the appellant has not identified error. The errors as submitted have not been made out. Rather, the Member was involved in an evaluative exercise in order to establish the facts. I do not accept the submission that the Member ignored the evidence of overuse,[94] this does not accurately reflect the Member’s approach. To the contrary, the Member found that those complaints were not made out. (See in particular the comments at reasons [67]–[68].)
[94] Appellant’s submissions, [58].
Next I turn to the appellant’s complaint about how the Member dealt with the opinion of Dr Endrey-Walder.[95] As I have stated above, the appellant criticises the Member’s assessment of the doctor’s opinion as “vague and unsatisfactory”[96] as being “gratuitous and misdirected”.[97] At reasons [69] the Member deals with the doctor’s opinion that the right side has an “element of overuse secondary to the left shoulder problems.”[98] The Member said that this opinion “hardly addresses the question of whether the medical condition of osteoarthritis results from injury. Dr Endrey-Walder’s opinion is based on a history that is incongruent with the contemporaneous medical evince [sic, evidence] in the period of his employment and for several years thereafter.”[99] In short, the Member was testing whether the passage he cited from Kooragang had been satisfied. There is no error in this approach.
[95] ARD, p 39.
[96] Reasons, [69].
[97] Appellant’s submissions, [56].
[98] ARD, p 44.
[99] Reasons, [69].
The problem for the appellant is manifest. It is apparent that the facts underlying this opinion, namely the appellant’s evidence about the nature of his work and his favouring of his left shoulder leading to the overuse of the right shoulder, have not been established. The facts underpinning the opinion have not been proven or accepted by the Member. Secondly, the history relied upon by the doctor, as found by the Member is “incongruent” with the contemporaneous medical evidence. Dr Endrey-Walder has provided no path of reasoning or explanation which resolves or deals with this issue. I agree with the Member’s assessment of the doctor’s evidence, which is very close to if not an unreasoned ipse dixit.[100] The Member was correct to accord little weight to the opinion.
[100] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.
The appellant also complains about Dr Powells’ opinion.[101] Dr Powell had been qualified by the respondent.[102] Even if I were to accept in full the appellant’s complaints about Dr Powell on the consequential injury question, I would remark that the Member has not placed any reliance on Dr Powell’s evidence in this aspect of his decision. The Member has not preferred Dr Powell’s opinion to appellant’s doctors, so any complaint about Dr Powell is not germane to the Member’s decision on this issue. I accept that this submission is deployed to support an argument that the appellant’s medico-legal evidence was not challenged. I do not entirely accept this assertion, Dr Powell does deal with the consequential injury.[103] Given the Member has not relied on Dr Powell on the question of consequential injury, I do not need to deal with the appellant’s submission insofar as it traverses this evidence.
[101] Appellant’s submissions, [49]–[51].
[102] Reply, p 8.
[103] Reply, p 13, [4(a)] and [4(a)(i)]; Reply, p 17, [8(c)(B)].
This ground is, in effect, an impermissible complaint about factual findings, rather than the identification of relevant error.
Error has not been established, Ground Two is dismissed.

DECISION

The appellant’s application to adduce fresh evidence on appeal pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is rejected.
The Certificate of Determination dated 20 February 2024 is confirmed.

Judge Phillips
PRESIDENT

11 December 2024