Elmobayed v Woolworths Group Limited
[2025] NSWPICPD 65
•8 September 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Elmobayed v Woolworths Group Limited [2025] NSWPICPD 65 |
APPELLANT: | Rayanne Elmobayed |
RESPONDENT: | Woolworths Group Limited |
INSURER: | Woolworths Limited |
FILE NUMBER: | A1-W25690/24 |
PRESIDENTIAL MEMBER: | Acting Deputy President Paul Sweeney |
DATE OF APPEAL DECISION: | 8 September 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 17 December 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – s 60 of the Workers Compensation Act 1987 – whether need for surgery results from injury – scope of estoppel created by consent award for respondent in prior proceedings – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 and Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 considered – factual finding that need for surgery resulted from injury caught by the estoppel |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B McManamey, counsel | |
| Withstand Lawyers | |
| Respondent: | |
| Mr P Stockley, counsel | |
| Turks Legal | |
DECISION UNDER APPEAL: | Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706 |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 17 December 2024 |
INTRODUCTION
The issue on this appeal is whether an estoppel created by consent orders made on 25 March 2024 precluded the appellant recovering the cost of surgery undertaken by Dr Banzic and Dr Stewart on 30 July 2024.
Rayanne Elmobayed (the appellant) was formerly employed by Woolworths Group Limited (the respondent) as a picker and filler. On 9 June 2022, while lifting crates at the respondent’s premises at Eastlake, she experienced pain in her neck, left shoulder and chest.[1]
[1] Application to Resolve a Dispute (ARD), p 3.
As her symptoms persisted, the appellant sought treatment from doctors at the Excelsior Family Medical Centre at Guildford. On 22 June 2022, she was advised by Dr Rehman, a general practitioner, that a scan of her cervical spine was suggestive of a lesion in her left first rib area. A CT scan confirmed the presence of a tumour at the left rib. Accordingly, on 29 June 2022, the appellant consulted with a cardiothoracic surgeon, Dr Kal Perera, who undertook surgery to resection her first left rib at Westmead Private Hospital on 17 July 2022.[2] Dr Perera did not remove the entirety of the lesion in the appellant’s first left rib as he considered that more extensive intervention “could result in permanent neurological dysfunction”.[3]
[2] ARD, p 5.
[3] ARD, p 78.
As the appellant continued to suffer symptoms in her chest, neck, and left arm following surgery, she was referred to several specialists for further investigation. She saw Dr Sammons, a neurosurgeon, Dr Taylor, a pain specialist, and on 31 May 2023, Dr Hugh Winters, an interventional and vascular neurologist.
On 26 March 2024, the appellant saw Dr David Stewart, a plastic and reconstructive surgeon on referral from Dr Igor Banzic, a vascular surgeon. He diagnosed thoracic outlet syndrome secondary to first rib fibrous dysplasia and recommended that she undergo further surgery involving an excision of her first rib and a thoracic outlet decompression. That surgery was undertaken by Dr Stewart and Dr Banzic at North Shore Private Hospital on 30 July 2024.[4] Dr Banzic performed the excision of her first rib and Dr Stewart performed the thoracic outlet decompression.[5] The appellant’s left arm symptoms improved following that surgery.
[4] ARD, p 38.
[5] ARD, p 12.
CLAIM FOR COMPENSATION
In 2023, a dispute arose as to the appellant’s entitlement to compensation. On 8 December 2023, the appellant’s solicitor lodged an ARD with the Commission (W9322/23) claiming compensation in respect of her injuries. The matter was allocated to Member Whiffin who conducted a preliminary conference on 31 January 2024, at which time the matter was listed for a conciliation conference and arbitration hearing on 22 March 2024. Following the conciliation conference, the Member issued a Certificate of Determination – Consent Orders which recorded the following orders:
“1. There will be an award for the respondent in respect of an aggravation of the [appellant’s] left first rib tumour, as well as in respect of the surgical treatment carried out upon her by Dr Perera on 18 July 2022.
2. The proceedings will otherwise be discontinued and I dispense with the requirement to file an election to discontinue.”
The Member also noted an agreement between the parties by which the respondent agreed to pay the appellant weekly payments of compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
It is the effect of Order 1 on the appellant’s rights to compensation that gives rise to the dispute in these proceedings.
CLAIM FOR THE COST OF SURGERY – 30 JULY 2024
By a Notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 5 June 2024,[6] the respondent’s insurer denied liability to pay compensation in respect of the cost of the surgery performed by Dr Stewart and Dr Banzic on 30 July 2024. The s 78 Notice stated that the respondent had previously accepted liability in respect of injury to the appellant’s neck and left shoulder. However, the surgery undertaken by Dr Stewart related to a condition “which [the respondent] has previously disputed and has received an award in its favour”.[7] The Notice recorded the terms of the consent orders dated 25 March 2024.
[6] ARD, p 18.
[7] Reply to Application to Resolve a Dispute, p 8.
By a review notice issued pursuant to s 287A of the 1998 Act dated 5 August 2024,[8] the insurer considered further medical evidence furnished by the appellant’s solicitor and the medical report of Dr Howard de Torres, plastic surgeon, which it had obtained for the purpose of considering its liability to the appellant. It maintained its denial of liability to pay the costs of and incidental to the surgery.
[8] ARD, p 28.
THE ARBITRAL PROCEEDINGS
On 30 August 2024, the appellant’s solicitors lodged a further ARD with the Commission. It described the appellant’s injury as follows:
“Due to the nature and conditions of her employment and particularly the duties she was required to perform on 9 June 2022, being the repetitive lifting of crates from the ground to head height, the [appellant] developed a gradual onset of pain and symptoms in her neck and left shoulder. Furthermore, the [appellant] suffered an aggravation, acceleration or exacerbation or deterioration of the tumour in her left first rib with irritation of the lower brachial plexus nerves and as a result, developed neurological symptoms in her left upper limb.
Alternatively, the [appellant] aggravated her injuries.”
The appellant claimed compensation pursuant to s 60 of the 1987 Act for the cost of the left thoracic outlet decompression and excision of the first rib undertaken at North Shore Private Hospital on 30 July 2024. The ARD claimed the sum of $18,095.
When the matter came on for a conciliation conference and an arbitration hearing on 23 October 2024 before Member Wynyard, Mr McManamey, of counsel, appeared for the appellant and Ms Balendra, of counsel, appeared for the respondent. The matter could not be resolved. It proceeded on the written evidence. The Member recorded the sole issue remaining in dispute as follows:
“(a) Is Ms Elmobayed estopped from bringing this action as a result of a consent order made on 25 March 2024?”[9]
[9] Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706 (reasons), [3].
Unfortunately, there are omissions in the transcript of the hearing. However, the broad thrust of the arguments of counsel is tolerably clear and neither party submitted the omissions precluded a fair determination of the appeal.
After reviewing the medical evidence before the Commission, Mr McManamey submitted that the need for the surgery of 30 July 2024 was attributable to an aggravation or exacerbation of the appellant’s thoracic outlet syndrome caused by the work she performed for the respondent.[10] While the tumour at the first left rib may have played some background role, the evidence established that it was the “thoracic outlet syndrome which required the surgery”. The tumour was essentially benign. The thoracic outlet syndrome was a different condition to the first rib tumour and not subject to the estoppel created by the order of 25 March 2024.[11]
[10] Transcript of proceedings 23 October 2024 (transcript), p 13.
[11] Transcript, p 14.
Mr McManamey referred to the respondent’s failure to adduce evidence from Dr de Torres. He referred to the insurer’s statement in the review notice that Dr de Torres diagnosed a brachial plexus injury but that this condition was outside his area of expertise.
Ms Balendra, on the other hand, emphasised the aspects of the evidence which explained the perpetuation of the neuropathic symptoms in the appellant’s neck and left arm by the residual tumour.[12] In particular, Ms Balendra relied upon the opinion of Dr Granot. She emphasised that the doctor stated that the “residual tumour would be a plausible explanation for an ongoing symptomatology”.[13]
[12] Transcript, p 19.
[13] Transcript, p 25.
Ms Balendra also argued that the medical evidence supported a conclusion that “whatever is going on now is as a result of the [initial] surgery.”[14] (my inclusion)
[14] Transcript, p 26.
THE MEMBER’S REASONS
After considering the medical evidence, the Member reiterated the appellant’s argument, which:
“was based on the hypothesis that the purpose of the surgical treatment for which compensation is sought was to treat the work-place injury, whereas the purpose of the surgery for which the [appellant] had given an award for the respondent was solely to treat the tumour itself. I understood this submission to be a factual distinction, as Mr McManamey did not refer to any authority or legislative provision.”[15]
[15] Reasons, [61].
The Member referred to the reasoning of the President, Judge Phillips, in Etherton v ISS Property Services Pty Limited[16] where the President cited with approval the principles expounded by Roche DP in Bouchmouni v Bakhos Matta t/as Western Red Services[17] concerning estoppels arising from consent orders. The Member then disposed of the dispute as follows:[18]
“As indicated, the medical opinion, both treating and expert, prior to the entering of the consent order implicated the first rib tumour as being causative to Ms Elmobayed’s symptomatology. It also supported that finding in the post-30 July 2024 reports of Dr Stewart and Dr Banzic. The dichotomy relied on by the [appellant] does not resonate very far, as whilst the surgery of 18 July 2022 was concerned with the tumour itself, by the time the consent order was agreed on 24 March 2024, it was within the [appellant’s] knowledge that the tumour had contributed to her symptoms and an objective person would reasonably understand that the actions by Ms Elmobayed of lifting totes above shoulder height had not only caused a soft tissue strain injury, but had also, to employ the terms used by Dr Porteous, ‘resulted in irritation of the tumour in the lower trunk of the brachial plexus’ which had resulted in the aggravation, exacerbation or deterioration of the tumour and produced neurological symptoms in the left arm.”
[16] [2019] NSWWCCPD 53.
[17] [2013] NSWWCCPD 4 (Bouchmouni).
[18] Reasons, [67].
By his Certificate of Determination dated 17 December 2024 the Member made an award in favour of the respondent.
GROUNDS OF APPEAL
The appellant raises three grounds of appeal:
(a) The Member erred in fact and law when he failed to consider what the terms of the order of 24 March 2012 actually meant. (Ground 1)
(b) The Member erred in fact and law when he considered that the fact that there was evidence that the first rib tumour was causative of the appellant’s symptoms determined the meaning and effect of the consent orders. (Ground 2)
(c) The Member erred in fact and law when he failed to consider that there was evidence of injury other than aggravation of the tumour and did not consider whether the need for the surgery in July 2024 resulted from that injury. (Ground 3)
As Grounds 2 and 3 of the appeal largely turn on the medical evidence adduced by the appellant, it is necessary to compendiously review aspects of that evidence. What follows is not intended to be a survey of the entirety of the evidence or a substitute for the Member’s careful summary of the medicine. Rather, I set out the salient points of the evidence so that the parties can understand the way in which the Commission has determined this appeal.
Dr Kal Perera
Dr Perera, a cardiothoracic surgeon, saw the appellant on 29 June 2022[19] at the request of Dr Rehman. He noted that her most recent CT scan showed an “expansive left first rib tumour with cortical thinning”. He recorded that the appellant complained of paraesthesia and weakness in her left arm and hand. He recommended that she undergo a first rib resection “via an infraclavicular approach”.
[19] ARD, p 71.
Dr Perera’s operative findings, recorded in a report of 18 July 2022, included an enlarged first left rib with discolouration of the substance of the rib. The “brachial plexus [was] densely adherent to rib posteriorly”. Under the heading “Operative Details”, the doctor records that the “rib was resected posteriorly as far as was safely accessible”.[20]
[20] ARD, p 74.
On 17 August 2022, Dr Perera reported that the appellant had “ongoing pain and weakness in her left arm”. He stated that this was “unchanged from pre-operatively”.[21] He advised that there were risks associated with a further resection to remove the residual first rib. He treated the appellant with Lyrica for her neuropathic pain. He ordered a further MRI.
[21] ARD, p 76.
By a report of 16 November 2022, Dr Perera recorded that the appellant’s recent MRI scan demonstrated the continued presence of an expansile lesion in the first left rib causing mass effect on the inferior trunk of the left brachial plexus. He continued:
“It is likely that her symptoms are related to [t]his impingement caused by the residual rip [sic, rib]. I have explained to her and her mother that removing it could result in permanent neurological dysfunction.”[22]
[22] ARD, p 78.
By a letter to Dr Rehman dated 23 November 2022, Dr Perera stated that the appellant had “ongoing pain requiring analgesia”. He recommended referral to a pain specialist. On 8 February 2023, Dr Perera reported that the neurological symptoms in the appellant’s left arm were “stable”. He reported that a nerve conduction study did not demonstrate any abnormality. He did not advise “further intervention”.[23]
[23] ARD, p 81.
On 28 June 2023, Dr Perera reported that the appellant complained of ongoing symptoms in her left hand and neck together with migraines. He stated that she felt a further resection of the residual first rib “may be her only option”.[24]
[24] ARD, p 82.
Dr Vanessa Sammons
Dr Sammons, a neurosurgeon, wrote to Dr Taylor of the Northern Pain Centre on 24 July 2023[25] stating that she had examined the appellant, “who has what appears to me to be complex regional pain syndrome involving her left hand”. Dr Sammons noted that the appellant was “keen for her surgery”. However, the doctor was “less sure” of the efficacy of further surgery given the unrestricted function of the appellant’s hand and arm.
[25] ARD, p 95.
On 5 September 2023, Dr Sammons reported that the appellant continued to complain of severe neuropathic pain and discomfort on movement of her left arm. She thought that this might result from “traction to the brachial plexus”. However, she also thought that there was a “likely complex regional pain syndrome involving her left upper limb”. She noted that the appellant did not feel that she could “live with the symptoms” and that she was “desperately seeking some kind of improvement”. Dr Sammons recorded:
“I do quite clearly get from Rayanne that she has neuropathic sounding pain which she has had since her surgery.”[26]
[26] ARD, p 96.
On 31 October 2023,[27] Dr Sammons reported that the appellant had seen Dr Taylor:
“who could not identify any clear therapy that would provide Rayanne some benefit outside of surgical exploration of the plexus”.
Dr Sammons expressed concern that further surgical exploration may leave the appellant “functionally worse”. However, she was prepared to undertake surgery “where we could potentially divide the clavicle, resect the first rib and decompress the plexus” in association with Dr Bateman.
[27] ARD, p 91.
Dr Hugh Winters
Dr Winters first saw the appellant on 31 May 2023.[28] He advised that there should be further imaging of her clavicle region and brachial plexus to determine “if there has been radiological progression”. He continued:
“The big question will be whether the pain is because of continued mechanical compression of the nerve or pain arising from previous injury to the brachial plexus. Either way, we should treat her pain with a neuropathic agent such as gabapentin.”
If the imaging supported the need for further surgery, he suggested a referral to a peripheral nerve surgeon “such as Dr Vanessa Sammons”.
[28] ARD, p 93.
By a further report dated 19 October 2023,[29] Dr Winters stated that the appellant’s diagnosis was compression of the brachial plexus “secondary to [a] rib osteoma”. He stated that he agreed with the opinion of Dr Porteous that the appellant’s employment duties “were likely the main aggravating factor due to the temporal relationship between these activities and the onset of her symptoms.” He continued:
“(5) The persistence of symptoms after her surgery is not unexpected. I note the resection was not complete. Post-operative swelling, intra-operative irritation of the plexus, focal osteoma progression (despite resection) and further impingement are all factors which may have contributed to her symptoms post-operatively. Although this seems to be related but a separate issue to her initial work related aggravation.”
[29] ARD, p 68.
Dr Nathan Taylor
On 17 October 2023,[30] Dr Taylor reported to Dr Sammons that as the appellant continued to experience neuropathic pain down her left arm, further surgery was “a reasonable option”. He expressed the opinion that the appellant did not have “major allodynia or other stigmata of CRPS”.
[30] ARD, p 98.
Dr Andrew Porteous
Dr Porteous is an occupational physician, who saw the appellant on 7 March 2023 at the request of her solicitor and provided a series of reports commencing on 27 March 2023.[31] The doctor recorded that the appellant developed tightness in her left shoulder after lifting crates over an extended period on 9 June 2022. Shortly afterwards, she experienced neck and shoulder discomfort and weakness in the left hand. Following surgery, she had tingling pins and needles in the left arm and hand which she continued to experience.
[31] ARD, p 43.
Dr Porteous records that the appellant saw Dr McGroder, an occupational physician, possibly at the request of the respondent’s insurer. Dr McGroder thought that the appellant was unfit for work at that time by reason of the “surgery required for a lesion of the first rib”. Dr Porteous quoted Dr McGroder as stating:
“It is possible that the medical condition involving the lesion on the rib caused the onset of symptoms involving the left neck, shoulder and arm. Ms Elmobayed originally attributed this to the nature of her work. Either scenario was possible although the former is more likely.”
Dr Porteous reported that the appellant continued to have chronic left neck, shoulder, and arm pain with numbness and tingling down the posterior arm to the third and fourth fingers. She reported that she was socially and recreationally isolated and unable to work. The doctor diagnosed a soft tissue strain injury to the left mid musculature in the left shoulder. He accepted that at the time of this injury she “had a tumour in her left first rib” as a scan reported that the tumour was “impacting the lower trunk of the brachial plexus and nerves that supply the left arm”. The doctor continued:
“In my opinion, her repetitive lifting at or above chest height caused the soft tissue sprain injury but also more than likely than not resulted in irritation of the tumour in the lower trunk of the brachial plexus from the tumour resulting in detection earlier than otherwise expected and the repetitive use of the left arm above shoulder height with frequent looking and stretching out resulted in an aggravation or deterioration of the underlying condition and symptoms including neurological symptoms in the left arm, which have continued despite excision of the tumour.”[32]
[32] ARD, p 47.
Dr Porteous was asked to address whether employment was the main contributing factor in causing or aggravating the injury to the appellant’s neck and left shoulder. He stated:
“But for the lifting of the empty totes from ground to around head height, she would not have had the onset of the neck and shoulder musculoskeletal soft tissue injury but also not irritated the brachial plexus related to the left arm because of the tumour then irritating and she would not have developed neurological symptoms which continue to date.”[33]
[33] ARD, p 48.
The doctor expressed the opinion that there was no evidence that the tumour:
“on its own did or would cause neck and shoulder pain and there is no reason why the surgery would cause neck and shoulder pain.”[34]
[34] ARD, p 48.
Thus, the doctor concluded that the ongoing symptoms in the appellant’s left arm were:
“as a result of exacerbation or deterioration of the tumour size or shape by the subject accident, with subsequent earlier than expected irritation of the lower brachial plexus nerves and that has resulted in ongoing neurological symptoms and her ongoing neurological symptoms and pain in the left arm.”
The doctor provided a supplementary report of 15 December 2023, addressing the issue of whether the appellant’s treatment was reasonably necessary as a result of her work injury. Much of the report is not material to the issue in dispute. The doctor reiterated his opinion that:
“she had a left shoulder soft tissue sprain injury and also had an aggravation or exacerbation of the tumour that affected the lower trunk of the brachial plexus resulting in detection earlier than otherwise expected”.[35]
[35] ARD, p 53.
The doctor continued that:
“The resultant chronic pain from the aggravation or exacerbation of the underlying rib tumour that had more likely than not resulted from irritation of the lower trunk of the brachial plexus and that resulted in referred pain in the neck and restricted neck range as well as the symptoms through the left arm and to the hand, as previously noted.”[36]
[36] ARD, p 55.
Dr Rob Granot
Dr Granot, neurologist, saw the appellant on 7 August 2023[37] at the request of her solicitors. He took a consistent history. He expressed the following opinion:
“The repetitive overhead movements aggravated the neural contact (of the brachial plexus) with the underlying tumour. This precipitated the onset of her symptoms. These have persisted, despite the cessation of work (the original aggravation), at least in part related to the residual tumour (which may possibly be expanding since – the dimensions are highly variable in comparing report to report)”.
The doctor thought that “operative intervention seems to most likely [sic] path forward towards resolution.”
[37] ARD, p 56.
Doctor Granot’s working diagnosis was:
“Brachial plexus irritation and displacement related to first rib tumour, triggered by repetitive movement”.[38]
He expressed the opinion that he found it difficult to support the view of Dr Porteous that the appellant’s work changed the size or shape of the tumour.[39] He accepted that overuse could “inflame, irritate or aggravate a heretofore asymptomatic condition”. He continued:
“I would suggest that the mechanism of the initial exacerbation was due to repetitive upper limb movement, required to raise the carton to a pallet at head height. As is known, thoracic outlet syndrome (which this technically is, only secondary to the tumour rather than a first rib, for example) is often triggered by movements of the arms above shoulder height, so this is both plausible and supported by the literature.”
[38] ARD, p 60 (italics as in original).
[39] ARD, p 62.
Dr Granot thought that in the absence of ongoing work “it would appear that the residual tumour would be a plausible explanation for her ongoing symptomatology at this stage. If this is operated upon, that would potentially clarify the diagnostic and prognostic aspects.”[40]
[40] ARD, p 63.
Dr Igor Banzic
Dr Banzic provided a report to Dr Rehman post-operatively on 4 September 2024. He stated that the appellant’s symptoms had improved “in comparison to pre-operative clinical status”. Her histopathology revealed a benign tumour.[41] The doctor also stated that:
“The aetiology behind this Thoracic Outlet Syndrome and tumour/fibrous dysplasia is unknown but can be associated with some repetitive motion of the arm/shoulder at work, or trauma, as two most common reasons for thoracic outlet syndrome.”
[41] Application to Admit Late Documents (AALD) 24 September 2024, p 1.
Dr David Stewart
Dr Stewart, plastic and reconstructive surgeon, first saw the appellant on 26 March 2024.[42] He recorded a consistent history of the injury with worsening symptoms of thoracic outlet syndrome with irritation of the brachial plexus. By a further report of 13 August 2024 addressed to a physiotherapist, Dr Stewart expressed the opinion that the appellant was making “good early progress” but should undertake “range of motion exercises”.[43]
[42] ARD, p 33.
[43] ARD, p 101.
By a report dated 1 October 2024[44] Dr Stewart reiterated the diagnosis of neurogenic thoracic outlet syndrome “secondary to the tumour and exacerbated by the workplace injury and also by the subsequent surgery.” He continued:
“3) My prognosis was that Rayanne would continue to have significant discomfort unless the thoracic outlet syndrome was decompressed, with a supraclavicular approach and a decompression of the brachial plexus, as well as excision of the first rib tumour.
4) The exacerbation of the thoracic outlet syndrome caused by the work case [sic] injury materially contributed to the need for surgery. The rationale for this was that Rayanne was entirely asymptomatic prior to the injury, which exacerbated the condition. Fibrous dysplasia is a benign condition that can comfortably be watched and without the symptoms that may never have come to light without the workplace injury, the tumour could have comfortably observed without the need for major surgery.”
[44] AALD, 3 October 2024, p 1.
Dr Stewart continued:
“Given the underlying fibrous dysplasia as a precipitating cause of Rayanne’s thoracic outlet syndrome, there is no other surgical treatment other than the excision of the tumour. The co-existence of brachial plexus irritation and scarring from the previous surgery also mandates a supraclavicular decompression of the plexus to make it safe to proceed with the rib excision.”
The doctor thought that the appellant’s prognosis was reasonable.
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.
The decision of the Court of Appeal in State of New South Wales v Culhana,[45] overruling Raulston v Toll Pty Limited,[46] was published after the parties lodged their submissions. While I doubt that the reasoning in Culhana is of great significance in this case, I gave both parties the opportunity to address it. Only the appellant took the opportunity. After referring to Ferguson v Connemara Jack Pty Limited,[47] Mr McManamey submitted that as a proper consideration of the evidence led to the conclusion that the respondent had not established an estoppel, I should “substitute a finding that there is no estoppel as found by the Member”.[48] Other aspects of this submission, however, are relevant to the grounds of appeal and I will refer to these below.
[45] [2025] NSWCA 157 (Culhana).
[46] [2011] NSWWCCPD 25 (Raulston).
[47] [2025] NSWPICPD 55.
[48] Appellant’s further submission, [24].
By the same Direction, I sought to resolve inconsistencies between the submissions on appeal and the evidence before the Member as follows:
“2. Both the appellant’s chronology and the respondent’s submissions refer to the Application to Resolve a Dispute in Matter W9322/23. It does not appear to have been tendered in evidence before the Member. If it is intended that it should form part of the evidence on this appeal it should be forwarded under cover of an Application to Lodge Additional Documents by 5pm on Monday 4 August 2025.
3. The appellant also makes numerous references to the evidence in the prior proceedings in her chronology. As that evidence was not tendered before the Member, an amended chronology referring to the evidence before the Member should be lodged by 5pm on Monday 4 August 2025.”
The appellant lodged an amended chronology in accordance with clause 3 of the Direction. The respondent submitted documentary evidence tendered in the prior proceedings. As I was uncertain whether the appellant consented to the tender of this evidence, I have not considered it in determining the appeal.
Proposed Notice of Contention
AT [6] AND [7] OF THE RESPONDENT’S SUBMISSIONS, MR STOCKLEY SUBMITTED THAT:
“had Member Wynyard referred to allegation of injury disposed of by the consent order, he would have summarily dismissed the application. This submission is advanced as a notice of contention in this appeal.”
RULE 125 OF THE PERSONAL INJURY COMMISSION RULES 2021 (THE RULES) PROVIDES:
“(1) THe respondent must file a notice of contention if the respondent—
(a) wishes to contend that the decision to which a workers compensation dispute appeal relates should be affirmed on grounds other than those relied on by the non-presidential member, and
(b) does not seek a discharge or variation of any part of the decision.
(2) The notice of contention must—
(a) be lodged and a sealed copy served on the other parties to the proceedings at the same time as the notice of opposition in the proceedings is lodged and served, and
(b) state, briefly but specifically, the grounds relied on and submissions in support of the contention.
(3) The appellant may, within 14 days of service of the notice of opposition and notice of contention—
(a) lodge submissions in reply to the notice of opposition and the notice of contention, and
(b) serve a sealed copy of the submissions on the other parties.”
NO NOTICE OF CONTENTION WAS LODGED BY THE APPELLANT. BY ITS NOTICE OF OPPOSITION THE APPELLANT INDICATED THAT IT DID NOT WISH TO FILE A NOTICE OF CONTENTION. AS THE POINT WAS NOT TAKEN BELOW AND GIVEN THE FAILURE OF THE RESPONDENT TO COMPLY WITH THE RULES, I DO NOT INTEND TO FURTHER CONSIDER THIS ASPECT OF THE RESPONDENT’S SUBMISSION.
LEGISLATION
Section 60 of the 1987 Act insofar as is relevant is as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
DISCUSSION
The nature of an appeal under s 352 of the 1998 Act was recently considered by the Court of Appeal in Culhana. It is clear, as the appellant argues, that the approach to s 352 stated in Raulston and the cases which follow it, is wrong. The first “general principle” stated in Raulston at [19] is predicated on too narrow a view of the appellate function conferred by s 352. That approach is also inconsistent with the previous appellate caselaw.[49]
[49] Culhana, [58] per Leeming JA.
The proper approach to an appeal pursuant to s 352 can be found in the reasoning of the High Court in Warren v Coombs,[50] Lee v Lee,[51] and Fox v Percy.[52] In Culhana, Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following passage from Lee as illustrative of the proposition that, when an appellate court is in as good a position as the trial judge to determine the issue, a determination that a conclusion was “open” is erroneous.[53]
“Having rejected the essential planks of the trial judge’s reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this ‘very closely balanced’ case on the footing that the trial judge’s decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good.” (citations omitted; emphasis added)
[50] [1979] HCA 9; 142 CLR 531.
[51] [2019] HCA 28; 266 CLR 129 (Lee).
[52] [2003] HCA 22.
[53] Culhana, [62].
At [91] of Culhana, Leeming JA stated:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
Plainly, the advantage of the Member in this matter is constrained by the fact that it was determined on the papers. Nonetheless, it remains necessary for the appellant to prove error if it is to succeed on the appeal. It must also remain the case that the mere preference of a Presidential member for another outcome in a factual dispute does not inevitably establish error. That is particularly so in evaluative decisions, such as those arising under s 9A or s 4(b).[54] Culhana contemplates a rehearing on the basis of the errors asserted in the grounds of appeal and not a review, the statutory methodology for an appeal prior to the 2011 amendments to s 352.
[54] See the discussion of the applicability of the correctness standard in White v Redding [2019] NSWCA 152.
It was common ground at the arbitration hearing that the consent orders of 24 March 2024 created an estoppel between the parties. That is undoubtedly correct. In Habib v Radio 2UE Sydney Pty Limited,[55] McColl JA (Giles and Campbell JJA agreeing) at [186] stated:
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the Court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’.”
[55] [2009] NSWCA 231.
In Isaacs v Ocean Accident and Guarantee Corporation Ltd,[56] a case referred to by Justice McColl, the Court at [75] referred extensively to Spencer Bower on Res Judicata. Street CJ and Roper CJ in Eq stated:
“Again, at p 114, para 174, the learned author says: ‘In the case of judgments and orders by consent … it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent judgment or order was made.”
[56] (1957) 58 SR (NSW) 69.
Deputy President Roche referred to both cases in his extensive review of the caselaw in Bouchmouni. At [47] the Deputy President enumerated the principles that he extracted from his consideration of the authorities:
“(a) consent orders create res judicata estoppels, but only to the extent of what was ‘necessarily decided’ (Habib at [186]);
(b) to determine what was ‘necessarily decided’, the Commission will closely examine the pleadings and particulars, the s 74 notice, and the legislation, because that material forms part of the mutually known facts and assists in objectively determining the ‘genesis’ and ‘aim’ of the orders (Isaacs at 75; Spencer Bower at [39]; DTR Nominees at 429);
(c) consent orders should be construed by reference to what a reasonable person would understand by the language the parties have used in the orders, having regard to the context in which the words appear and the purpose and object of the transaction (Cordon Investments at [52]);
(d) where the words in the consent orders are ambiguous, or susceptible of more than one meaning, extrinsic evidence is admissible to show the facts which the negotiating parties had in their minds (Codelfa at 350), but such evidence is not admissible to contradict the language of the orders when it has a plain meaning and is not ambiguous or susceptible of more than one meaning (Codelfa at 352);
(e) prior negotiations that tend to establish objective background facts which were known to both parties and the subject matter of the consent orders will be admissible (Codelfa at 352);
(f) evidence of prior negotiations that are reflective of the parties’ actual (subjective) intentions is not receivable (Codelfa at 352), and
(g) the interpretation of consent orders is not governed by the parties’ subjective beliefs or understandings about their rights and liabilities. It is an objective test of what a reasonable person would understand by the language in which the parties have expressed their agreement (Toll at [40]; Cordon Investments at [52]).”
As it is convenient to address the grounds of appeal together, I recapitulate the parties’ submissions in respect of each ground below.
Ground 1 – Error in failing to consider what the orders of 24 March 2024 actually meant
Appellant’s submissions
The appellant asserts that the Member failed to consider the surrounding factual matrix, including the pleadings, to determine what had been “necessarily decided” by the orders of 24 March 2024 and, more importantly, failed to consider “the actual words of the orders”.[57]
[57] Appellant’s Submissions (AS), [18]–[22].
Nonetheless, the orders “are relatively clear”; “[t]he effect of the orders can only mean that there is no liability on the respondent for any allegation of an aggravation of the appellant’s left first rib tumour”.[58]
[58] AS, [24].
Further, the appellant asserts that the surgery of 30 July 2024 was “self-evidently to treat the thoracic outlet syndrome being the work-related injury.” The excision of the first rib was the “secondary component of the surgery”.[59] This was recognised by Dr Stewart in his report dated 26 March 2024.
[59] AS, [27].
If the Member had properly engaged with the language of the consent orders, he would have concluded that:
(a) whilst there was no liability for an allegation of aggravation of the tumour there could still be liability for an exacerbation, acceleration or deterioration of the tumour, and
(b) the orders did not relate to any other body part. In particular they did not relate to the brachial plexus or thoracic outlet syndrome.[60]
[60] AS, [31]–[32].
The Member further erred in considering the consent orders in the context of the medical evidence available to the parties at the time. The fact that there was evidence available to the appellant that work aggravated the tumour did not “assist in the interpretation of the consent orders”.[61]
[61] AS, [33].
Respondent’s submissions
The respondent submits that there can be “no real controversy about what the terms meant.” It refers to the appellant’s submission that “the orders are relevantly clear”.[62]
[62] Respondent’s Submissions (RS), [16].
The argument pressed by the appellant at the arbitration hearing was that the aggravation of the tumour “did not include whatever caused the need for surgery to the thoracic outlet”.[63]
[63] AS, [17].
The appellant’s suggestion that the Member failed to consider the distinction between aggravation, on the one hand, exacerbation, acceleration or deterioration of the tumour, on the other hand, was “unseemly and preposterous”. It was not clear that it was “rehearsed before Member [sic].”
As the Member considered the “true gravamen of the appellant’s argument”, failure to set out detailed reasons for matters “not truly in dispute” cannot support a finding of error.
Appellant’s further submissions
By its further submissions, the appellant submits that the consent orders do not extend to the current condition of thoracic outlet syndrome or injury to the brachial plexus. It submits that:
“The fact that [the] orders are expressly limited to the specific aggravation and make no mention of its consequences is a strong indication that the orders which had been agreed by the respondent were to be limited to their express and limited terms.”
Ground 2 – Error concluding that the medical evidence determined the meaning and effect of the consent orders
Appellant’s submissions
Ground 2 also criticises the Member for failure to properly construe the consent orders. The appellant criticises the Member’s use of extrinsic evidence to determine “the meaning of the consent orders”. The Member did not explain why it was necessary to address what “the objective person would conclude about the state of the evidence”.[64] The appellant submits that extrinsic evidence should only be considered when the consent orders are ambiguous. In this case they were not.
[64] AS, [37].
The appellant argues that “at most the medical evidence indicated a dispute about whether the tumour had been aggravated.” The submission continued:
“Because the Member did not engage in any consideration of the words of the consent orders, he did not reach any conclusion about whether the orders were ambiguous. If he had he would have concluded that the orders were clear in their terms and the only meaning to be subscribed to them was that the Respondent was not liable for an aggravation of the tumour. The orders were silent on any other allegation of injury or any other body part and therefore had no application to any allegation of injury to the thoracic outlet or the brachial plexus.”[65]
[65] AS, [45].
Respondent’s submissions
The respondent submits that the Member’s reasons at [67] addressed the “objective evidence which informed interpretation of the consent orders”.[66] While the Member’s conclusions in this paragraph were “correct”, “it was simply unnecessary.” The respondent submits that the “case ultimately turned on [the Member’s] rejection of the argument that there was a legitimate dichotomy between a thoracic outlet syndrome caused by the accepted injury or the presence or removal of the tumour.”[67]
Ground 3 – Error in failing to consider whether the need for surgery in July 2024 resulted from an injury other than the tumour
[66] RS, [21].
[67] RS, [21].
Appellant’s submissions
By this ground the appellant reiterates the argument that the estoppel created by the orders of 24 March 2024 was limited to an “aggravation” of the tumour. They did not extend to an exacerbation or deterioration of the tumour. Each of the words in s 4(b)(ii) of the 1987 Act are to be given “their separate meaning.”[68] There was no medical evidence “which explicitly describes or diagnoses an aggravation to a tumour”.[69]
[68] AS, [50].
[69] AS, [52].
Rather, the medical opinion, in particular that of Dr Granot, established that the appellant’s work, which “aggravated the neural contact (of the brachial plexus) with the underlying tumour”, “precipitated the onset” of her symptoms.[70]
[70] AS, [53].
The conclusion in the consent order that the tumour had not been “aggravated” did not repudiate the existence of other injuries for which the employer paid compensation.
Respondent’s submissions
The respondent submitted that an argument based on Dr Granot’s opinion that the appellant suffered injury by way of irritation of the tumour by the brachial plexus was not open on the pleadings. “The irritation of the brachial plexus was pleaded as a consequence of the aggravation of the tumour, not the other way around.”[71]
[71] RS, [23].
The respondent also asserts at [25] that the Member recorded the aspects of Dr Granot’s opinion on which the appellant relied. That “demonstrates the fact that he considered it.”[72] It might be inferred that he rejected it. “The evidence does not support the proposition advanced on behalf of the appellant.”[73] The appellant had not established error.
[72] RS, [24].
[73] RS, [25].
Consideration
I have set out above[74] aspects of the parties’ submissions at the arbitration hearing. It was not suggested, however, that the Member’s summary of the submissions commencing at [28] of his reasons was inaccurate. The Member recorded the argument put by the appellant as follows:
“the estoppel would lie if the sole purpose of the proposed surgery was to treat the tumour or the aggravation of the tumour. The evidence, he submitted, demonstrated that the dual surgical procedures carried out on 30 July 2024 were to treat the thoracic outlet syndrome, and that they were in fact successful in doing so.”[75]
[74] [13]–[17].
[75] Reasons, [28].
The Member recorded that Mr McManamey submitted that a review of the medical evidence established these propositions. Further, he recorded that in reply the appellant argued that the respondent had:
“failed to appreciate the difference between the two surgeries. The first surgery was a partial excision of the tumour and related solely to that issue, whereas the surgeries of 30 July 2024 related to the thoracic outlet syndrome and brachial plexus irritation.”[76]
[76] Reasons, [37].
At [40] the Member recorded that Mr McManamey submitted that:
“It was the exacerbation of the thoracic outlet syndrome caused by the workplace injury that materially contributed to the need for the July 2024 surgeries”.
At [30] the Member recorded that the respondent submitted that “anything resulting from the surgery which had been the subject of the consent award of 25 March 2024 was also caught by the estoppel raised by that award.” While the appellant argued that the surgery of 30 July was for “thoracic outlet syndrome and not the aggravation of the tumour, Dr Granot’s opinion and that of Dr Winter demonstrated that the two were not separable”.[77]
[77] Reasons, [36].
Thus, the submissions of the parties focused on the question of whether the need for the surgery of 30 July 2024 resulted from the left rib tumour or from an injury to the brachial plexus/thoracic outlet. Mr McManamey argued that if the latter materially contributed to the need for that surgery, the estoppel could not defeat his client’s claim. Conversely, the respondent argued that the need for surgery resulted solely from the tumour and/or the previous surgery. If there was a difference between the parties, it may be that the respondent asserted that the consent award caught the consequences of the tumour at sites adjacent to the first rib, whereas the appellant submitted that it should be limited to the tumour.
Exacerbation, acceleration or deterioration of the tumour
It is evident from the above review of the submissions that the argument that the consent orders did not exclude liability for “an exacerbation, acceleration or deterioration of the tumour” was never put to the Member. It is generally not permissible to raise a new point on appeal.[78] It is true, as the appellant argues, that the four words in s 4(b)(ii) are not “synonymous with each other” and have “differing shades of meaning”.[79] It is equally true that consent orders are to be construed:
“taking into account the circumstances in which they were made, at least to the extent that those circumstances were known to the parties”.[80]
[78] Water Board v Moustakas [1998] HCA 12; 180 CLR 491, 498; Whisprun Pty Limited v Dixon [2003] HCA 48, [53].
[79] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, [7], per Kitto J.
[80] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah), [22], per Meagher JA.
Consistently with the authorities discussed in Bouchmouni, Bindah is authority for the proposition that the “circumstances” include:
“the communications between the parties describing the essence of their dispute and the legal context relating to that dispute, as provided by the provisions of the 1987 Act and the [1998] Act.”[81]
[81] Bindah, [24].
That is not an exhaustive list of the evidence which may be adduced in construing the terms of the orders. Plainly, if the substance of this ground had been raised at the hearing, the respondent would have had the opportunity to address the issue and to adduce evidence on the point. In those circumstances, the appellant’s contention in Grounds 1 and 2 that the Member failed to consider or hold that the terms of the consent order did not exclude liability for acceleration, exacerbation, or deterioration of the tumour at the first left rib must fail. It was not raised or argued before the Member.
Consent orders only operate on circumstances at the time they are made
In a related argument which is found in Ground 3, the appellant submits that it was “open” to the appellant to argue that “whilst the tumour had not been aggravated by work as at 24 March 2024 there had been an aggravation after that date.”[82]
[82] AS, [57].
This submission is difficult to understand. The appellant did not work between the date of the consent orders and the date of surgery. It is, therefore, difficult to comprehend how further work caused an aggravation of the tumour. As this submission was not developed further, I do not intend to pursue it.
Error in interpreting the orders
The review of the submissions does not suggest that either party argued that the Member should construe the consent orders to ascertain the scope of the estoppel. The submissions are silent on both the legal principles and the evidence relevant to this task. It is not evident that there was any appreciable difference between the parties as to the meaning of the orders. At the commencement of the arbitration hearing, Mr McManamey submitted:
“There’s no dispute about .. (not transcribable) .. matters, it’s purely whether this surgery is brought [sic, caught] by that estoppel. It’s only caught by that estoppel if the surgery was the .. (not transcribable) .. for the purposes of treating a tumour or aggravation of the tumour.”[83]
[83] Transcript, p 5.
The entirety of the appellant’s submission is concerned with an analysis of the medical evidence for the purpose of establishing that the surgery on 30 July 2024 was not undertaken merely to treat the tumour the subject of the estoppel. This is consistent with the submission recorded by the Member that the estoppel would only lie if the sole purpose of the surgery on 30 July 2024 was to “treat the tumour or the aggravation of the tumour”.
It was not put that the Member was required to “interpret” the consent award to determine its meaning. The respondent did not tender the pleadings, particulars, or statutory notices served by the insurer in the previous proceedings (W9322/23). It is not evident that either party suggested the orders were capable of disparate interpretations. Rather, the dispute raised by the pleadings crystallised into a factual issue concerning the cause or causes of the surgery of 30 June 2024.
The Member recognised the ambit of the dispute at [61] when he stated:
“Mr McManamey’s argument was based on the hypothesis that the purpose of the surgical treatment for which compensation is sought was to treat the work-place injury, whereas the purpose of the surgery for which the [appellant] had given an award for the respondent was solely to treat the tumour itself. I understood this submission to be a factual distinction, as Mr McManamey did not refer to any authority or legislative provision.”
Nevertheless, the Member considered the meaning of the orders in the context of the medical evidence. The appellant argued that as the terms of the consent orders were not ambiguous, this approach was erroneous. The respondent submitted that it was “simply unnecessary”. But it did not cause the decision to miscarry.
I doubt that it was permissible to determine the meaning and operation of the consent orders by reference to the appellant’s knowledge of the medical evidence in this case. It was not argued that the consent orders were ambiguous. However, this conclusion may distract from the real issue between the parties, namely whether the Member failed to consider whether an injury other than the aggravation of the tumour contributed to the need for surgery.
Failure to consider whether injury other than the tumour resulted in the need for surgery
The appellant submits that it was incumbent on the Member to determine the principal argument she put at the arbitration. That argument was at the heart of the dispute between the parties. The respondent submitted that the Member dealt with this argument at [67] of his reasons. I doubt that submission is correct. To reiterate, the relevant portion of [67] is as follows:
“The dichotomy relied on by the [appellant] does not resonate very far, as whilst the surgery of 18 July 2022 was concerned with the tumour itself, by the time the consent order was agreed on 24 March 2024, it was within the [appellant’s] knowledge that the tumour had contributed to her symptoms and an objective person would reasonably understand that the actions by Ms Elmobayed of lifting totes above shoulder height had not only caused a soft tissue strain injury, but had also, to employ the terms used by Dr Porteous, ‘resulted in irritation of the tumour in the lower trunk of the brachial plexus’ which had resulted in the aggravation, exacerbation or deterioration of the tumour and produced neurological symptoms in the left arm.”
The Member’s reasoning in the above paragraph is concerned with the reasonable observer’s understanding of the meaning of the consent orders of 24 March 2024. It does not contain an explicit finding that the surgery of 30 July 2024 was not caused by an injury other than the aggravation of the tumour. However, the reasons must be read as a whole. Arguably, the Member accepted that the need for surgery resulted from the aggravation of the first left rib tumour. At [54] to [56] he refers to aspects of the medical evidence which “implicated” the aggravation of the tumour in the in “the symptom complex of her thoracic outlet syndrome.” But that conclusion does not answer the argument put by the appellant at the arbitration. In my opinion, the Member has not determined the essence of the dispute between the parties, namely whether the tumour was the sole cause of the surgery of 30 July 2024 or, alternatively, whether it resulted partly from injury to the brachial plexus as the appellant argued. Failure to address a prominent aspect of a party’s case constitutes error.[84] The issue was required to be resolved by a consideration of the evidence. Accordingly, I conclude that the appellant has proven error.
[84] State of New South Wales v Hunt [2014] NSWCA 47, per Leeming JA (Barrett JA and Tobias AJA agreeing), [46]–[47].
The estoppel
The appellant submits that the consent orders must mean that the respondent is not liable “for any allegation of an aggravation of the appellant’s left first rib tumour.” I accept that interpretation of the consent orders. As it cannot be suggested on the evidence that the tumour was caused by work, the award for the respondent in respect of the aggravation of the tumour must relieve the respondent of liability for the tumour under the 1987 Act.
The appellant particularised this aspect of her claim in these proceedings (and apparently in the earlier proceedings) on the basis that she had:
“suffered an aggravation, acceleration or exacerbation or deterioration of the tumour in her left first rib with irritation of the lower brachial plexus nerves and as a result, developed neurological symptoms in her left upper limb.”
This does not suggest a discrete injury to the brachial plexus caused by work. Rather, it suggests irritation of the brachial plexus resulting from the work caused aggravation of the left rib tumour. It is true that the appellant argued at the arbitration and on this appeal that there was a discrete injury to the brachial plexus which had given rise to thoracic outlet syndrome. It was put, on the basis of the opinion of Dr Granot, that the appellant’s work “aggravated the neural contact (of the brachial plexus) with the underlying tumour.” The appellant also argued that the medical evidence established that the left rib “tumour was not aggravated”.[85]
[85] AS, [52].
It is also true that the medical evidence which addresses the causes of the need for surgery is not always transparent. In my opinion, however, the balance of the medical evidence does not bear out the appellant’s argument. Clearly, there was considerable doubt in the medical evidence available to the parties prior to 24 March 2024 as to whether the appellant’s first left rib tumour was related to her employment. Dr Abdalla, one of the appellant’s general practitioners, noted on 30 June 2022 and 15 August 2022 that the tumour was an incidental finding: a “non related left rib injury”.[86]
[86] ARD, pp 199, 201.
Dr Perera, the surgeon who undertook the partial rib resection on 18 July 2022, did not suggest the appellant’s work caused or aggravated her tumour. He expressed the opinion that the appellant’s continuing symptoms after the surgery were “caused by the residual [rib]”[87] which scans had shown to be “causing mass effect on the inferior trunk of the left brachial plexus”. It is tolerably clear that the doctor thought that the appellant’s neurological symptoms were caused by the tumour impinging on the brachial plexus.
[87] ARD, p 78.
Ostensibly, Dr McGroder also expressed the opinion that the more likely explanation for the appellant’s symptom complex was the lesion at the left rib.[88]
[88]See [36] above.
Subsequently, in 2023, Dr Porteous expressed the opinion that the appellant’s work caused musculoskeletal injury to the neck and shoulder but also “irritated the brachial plexus related to the left arm because of the tumour then irritating.”[89] He contemplated there may have been some exacerbation or deterioration in the tumour size or shape by the nature of her work causing “earlier than expected” irritation of the lower brachial plexus nerves. This opinion is incompatible with the submission that the appellant’s work did not aggravate the tumour. It undoubtedly conveys the sense that it was the aggravation of the tumour by work that brought it into contact with the brachial plexus.
[89] ARD, p 48.
In her report of 31 October 2023, Dr Sammons stated that the appellant’s diagnosis was “fibrous dysplasia” and “pain secondary to surgery for rib dysplasia”.[90] Plainly, Dr Sammons attributes the appellant’s symptoms to the pathological effect of the tumour. As Dr Sammons also recorded that the appellant only developed neuropathic pain since her surgery, the history underlying her opinion may be inaccurate.
[90] ARD, p 88.
From the latter part of 2023, the medical opinion evidence coalesces around an acceptance of the opinion of Dr Porteous that the appellant’s work aggravated her tumour. The doctor’s report or opinion was provided to other specialist medical practitioners who were asked to comment on it. On 19 October 2023, Dr Winters wrote that he agreed with Dr Porteous’ assessment. He expressed the opinion that the appellant’s diagnosis was compression of the brachial plexus “secondary to rib osteoma”.[91] He accounted for the persistence of symptoms following the initial surgery by “[p]ost-operative swelling, intra-operative irritation of the plexus, focal osteoma progression (despite resection) and further impingement.” He acknowledged that these may be “a separate issue to [the appellant’s] initial work-related aggravation.”[92] Again, it seems clear that the doctor attributes the appellant’s symptoms to the pathological effect of the tumour.
[91] ARD, p 68.
[92] ARD, p 68.
Dr Granot opines that the appellant’s work “aggravated the neural contact of the brachial plexus with the underlying tumour.” He did not accept the opinion of Dr Porteous that the appellant’s work changed the size or shape of the tumour.[93] The doctor’s working diagnosis was “brachial plexus irritation and displacement related to her first rib tumour, triggered by repetitive movement”.
[93] ARD, p 62.
Dr Stewart also endorsed the view that the appellant’s work had “exacerbated” her condition. He stated that both an MRI scan and a CT scan demonstrated “a significant enlargement of the first left rib from fibrous dysplasia.”[94] He opined that the appellant’s thoracic outlet syndrome was secondary to this first rib dysplasia. For that reason there was “no other surgical treatment other than the excision of the tumour”. Dr Stewart thought that it was necessary to undertake concurrently a supraclavicular decompression of the plexus and further dissection of the rib that resulted from “brachial plexus irritation and scarring from the previous surgery”.[95]
[94] ARD, p 33.
[95] AALD, 3 October 2024, p 2.
Section 60 necessities a determination of whether the need for surgery results from a proven or accepted injury. There is an impressive body of medical evidence that the need for the surgery on 30 July 2024 resulted from the tumour at the left rib in conjunction with the previous surgery. The radiological evidence demonstrates a significant enlargement of the left rib caused by the dysplasia. The scans and the medical opinion demonstrate that it was compressing the brachial plexus and causing compression of the nerves within. As the respondent is not liable for the tumour, it is necessary to consider whether there is an injury that materially contributes to the need for surgery. While Dr Granot does suggest that the appellant’s work caused the brachial plexus to come into contact with the tumour, his evidence is ambiguous. Much of the other evidence is to the contrary. The nature of any injury to the brachial plexus and the mechanism by which it materially contributed to the need for surgery remains obscure.
Like the Member I conclude that, as the need for surgery results from the tumour, the appellant has not proven that it results from a compensable injury pursuant to s 60. While the appellant has proven error, an analysis of the evidence establishes that the determination of the Member was correct.
DECISION
The appeal is dismissed.
The Member’s Certificate dated 17 December 2024 is confirmed.
Paul Sweeney
ACTING DEPUTY PRESIDENT
8 September 2025
0
16
0