Elmobayed v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706
APPLICANT:	Rayanne Elmobayed
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Wynyard
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim that consent order giving award to respondent was capable of more than one meaning and did not raise an estoppel to payment of compensation for surgery related to the aggravation of a previously asymptomatic first rib tumour; Held – claimant estopped, observations on objective nature of interpretation of language used; Etherton v ISS Property Services Pty Ltd considered and applied; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Rayanne Elmobayed, the applicant, brings an action for a declaration that the surgical procedures undertaken on 30 July 2024 were reasonably necessary as a result of an injury she sustained by doing repetitive work for the respondent.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is Ms Elmobayed estopped from bringing this action as a result of a consent order made on 25 March 2024?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 23 October 2024. Mr Bruce McManamey appeared for Ms Elmobayed instructed by Mr Nayven Taouk. The respondent was represented by Ms Kavita Belandra instructed by Ms Ashleigh Harvey. Ms Ailaboumi appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 24 September 2024;
(c)    ALD dated 3 October 2024, and
(d)    Reply and attached documents.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

The scope of this dispute is limited to the question of the effect of the Consent Order issued by Member Gaius Whiffin on 24 March 2024 in an earlier matter between the parties, W9322/23. The pleadings and particulars relating to this matter were not before the Commission.
Relevantly the terms of the order were:
“1. There will be an award for the respondent in respect of an aggravation of the applicant’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.”
Ms Elmobayed was employed as a picker and filler. To summarise her statements,[1] she commenced at the respondent’s Chullora store in February 2017. She moved to Wolli Creek at the end of 2019 and then to the East Lake store in May 2022. The work involved repetitive lifting, and on 9 June 2022 she noticed a gradual onset of pain and symptoms in her neck, left shoulder and chest whilst stacking crates on a hoist at above head height – a task she had not hitherto performed without the assistance of a tall male member. She had two scheduled days off and thought her symptoms would subside, but over those two days her condition worsened, to the extent that she took another two days off. She returned on 14 June 2022, but had to cease work on that day due to her continuing symptoms. She consulted her general practitioner (GP), Dr Shina Dayan the day before, on 13 June 2022.[2]
[1] Statements dated 6 December 2023, ARD page 3, and 30 August 2024, ARD page 12.
[2] ARD page 148.
A CT scan of the cervical spine was taken on 14 June 2022, as a result of which a CT scan of Ms Elmobayed’s chest was performed on 22 June 2022. This revealed an extensive left rib tumour. She consulted Dr Kal Perera, cardiothoracic surgeon on 29 June 2022, who reported on that day that she had “an expansile first rib lesion,” and presented with “paraesthesia and weakness in her left arm and hand.” Dr Perera said:[3]
“Her most recent CT scan shows an expansive left first rib tumour with cortical thinning. I have explained in detail the rationale for undergoing surgery which is both diagnostic and potentially therapeutic….. [Ms Elmobayed and her mother] are happy to proceed with a first rib resection via an infraclavicular approach…”
[3] ARD page 71.
Ms Elmobayed came to surgery on 17 July 2022, at Westmead Private Hospital. She paid for this treatment herself, and was in hospital for about two weeks. Dr Perera reported that the first rib resection was partial, due to safety concerns. He said in his operation report of 18 July 2022:[4]
“….The rib was resected posteriorly as far as was safely accessible. This was beyond the level of the subclavian vessels…The rib itself was removed piecemeal.”
[4] ARD page 74 and 76.
Ms Elmobayed brought an action in matter W9322/23 in which Member Gaius Whiffin issued Consent Orders on 24 March 2024, as noted above. In addition to the award for the respondent, the proceedings were otherwise discontinued and the respondent agreed to pay voluntarily weekly compensation, which agreement was noted in the Certificate of Determination (COD).
Ms Elmobayed subsequently underwent further surgery on 30 July 2024. In the same operation a left thoracic outlet decompression under the care of Dr David Stewart, plastic and reconstructive surgeon was performed, and Dr Igor Banzic, vascular and endovascular surgeon, excised the first rib.
Ms Elmobayed said that, following these procedures, “my pain and symptoms improved.”[5] Ms Elmobayed noted that the insurer refused liability for these procedures, and she again paid for the procedures herself.

MEDICAL OPINION

[5] Statement dated 30 August 2024, ARD page 12.

Dr Stewart

As noted, Dr David Stewart was the plastic & reconstructive surgeon who performed the thoracic outlet decompression and surgery on 30 July 2024. Dr Stewart supplied two reports dated 26 March 2024 and 1 October 2024.[6]
[6] ARD page 33 and ALD 3 October 2024 respectively.
On 26 March 2024 Dr Stewart noted that Ms Elmobayed had an “unusual left thoracic outlet syndrome.” Dr Stewart said:
“…[Ms Elmobayed] had an injury at work was repetitive overhead movement and the required imaging for that injury resulted in incidental finding of a left first rib area of fibrous dysplasia
An attempt at a first rib excision was made in 2022 via an infraclavicular approach. This procedure was abandoned due to poor access and an irritation of the brachial plexus identified intraoperatively. Since then, [Ms Elmobayed] has had the worsening of symptoms in her thoracic outlet syndrome, with irritation of the brachial plexus.
….
[Ms Elmobayed] has thoracic outlet syndrome secondary to first rib fibrous dysplasia, exacerbated by scarring from previous surgery. I think that she will need a combination of a distinction of her brachial plexus, with a supraclavicular approach for excision of the first rib.”
In his later report Dr Stewart noted that the attempt to excise the tumour in 2022 had apparently been abandoned due to poor access and an irritation of the brachial plexus which was identified intraoperatively. He noted that Ms Elmobayed’s symptoms had worsened since. Dr Stewart said:
“The diagnosis was of a neurogenic thoracic outlet syndrome secondary to the tumour and exacerbated by the work place injury and also by the subsequent surgery.
….
.. The exacerbation of the thoracic outlet syndrome caused by the work case injury materially contributed to the need for the surgery. The rationale for this was that [Ms Elmobayed] 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 [been] observed without the need for major surgery.
…. Rayanne had clear signs of thoracic outlet syndrome, with objective evidence of an anatomical variant, causing a predisposition to thoracic outlet syndrome.”
Dr Banzic, the vascular and endovascular surgeon responsible for the excision of the first rib, noted in his report of 4 September 2024[7] that Ms Elmobayed’s symptoms improved following the procedure. He said:
“[Ms Elmobayed] successfully underwent first rib and tumour removal via left supraclavicular approach without any major complications…
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.”
[7] ALD 24 September 2024.
Ms Elmobayed retained Dr Andrew Porteous, occupational physician, as her medico-legal expert. On 27 March 2023 Dr Porteous gave a diagnosis that the applicant “had a soft tissue strain injury in the left mid musculature in the left shoulder from constant sustained lifting at or above chest height.”[8] Dr Porteous noted that at the time of the strain she had a tumour in her left first rib. He said:
“… The scan… Indicates it was impacting on the lower trunk of the brachial plexus and nerves that supply the left arm. From a medical point of view, on the balance of probability, after considering all of the information noting that she had the tumour but was asymptomatic until she did activity, I would have to conclude that this is a medical case that I call an eggshell skull principle. In my opinion her repetitive lifting at or above chest height because the soft tissue strain injury but also more than likely than not (sic) resulted in irritation of the tumour in the lower trunk of the brachial plexus from the tumour (sic) 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 of deterioration of the underlying condition and symptoms including neurological symptoms in the left arm, which have continued despite excision of the tumour.”
[8] ARD page 47.
In a further report dated 15 December 2023,[9] Dr Porteous confirmed his opinion that the activity at work caused the onset of left shoulder and subsequent arm symptoms with referral into the left neck. He said:
“…[I] still consider that [Ms Elmobayed] had a left shoulder soft tissue strain injury and also had an aggravation or exacerbation of the tumour that affected the lower trunk of the brachial plexus…”
[9] ARD page 52.
Ms Elmobayed also relied on the qualified opinion of Dr Ron Granot, neurologist, dated 4 August 2023,[10] who advised:
“The repetitive overhead movements aggravated the neural contact (of the brachial plexus) with the underlying tumour. This precipitated the onset of her symptoms…”
[10] ARD page 56.
At page 61 of the ARD Dr Granot’s diagnosis was:
“Brachial plexus irritation and displacement related to first rib tumour, triggered by repetitive movement….”
Dr Granot was referred to the opinion of Dr Porteous and asked to comment. He said at page 62:
“As noted in the opinion section above and again below, it would appear most likely that the repetitive movement required during her work duties has triggered the symptoms of irritation of the brachial plexus against the tumour, consistent with what would be expected in thoracic outlet syndrome.
Whether the ongoing symptoms relate to the tumour, especially in light of its possible enlargement (imaging needs to be formally compared with the pre-operative imaging), is less clear.”
On the same page, the following appeared:
“In light of the above, please kindly provide your opinion as to whether our client’s incapacity for her pre-injury duties was caused by her work injuries to her neck and left shoulder and irritation of rib tumour. Please explain.
‘I note that Dr Porteous, in his report, also noted that the mechanism by which he felt this was “exacerbation or deterioration of the tumour size or shape by the subject accident”. I find this difficult to support. However, it is certainly plausible, as one can see with known degenerative facet joints in the neck for example, that repetitive overuse can inflame, irritate or aggravate a heretofore asymptomatic condition. Hence, I would suggest that the mechanism of the initial exacerbation was due to repetitive upper limb movement, required to raise the cartons 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.
However, on post-operative imaging, there remains persistence of a mass (of similar or even greater size to the pre-operative dimensions of approximately 3cm) with ongoing impingement of the inferior division of the left brachial plexus.
In this context, 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.’”
At page 63 of the ARD the following question and answer appeared:
“7. Please kindly provide your opinion as to whether our client requires any reasonably necessary treatment as a result of her work injuries. Please kindly provide your reasoning outlining the treatment, cost, frequency and duration.
As above, the question now is whether the ongoing symptoms relate to the residual tumour, which may be expanding in size. Hence, I suspect she needs (as is occurring) surgical review and consideration, in relation to the tumour.
In the meantime, ongoing pain management is required and this can be reasonably attributed to her work-injury, at least in part.”
Ms Elmobayed also sought the opinion of Dr Hugh Winters, Interventional and Vascular Neurologist, who reported on 19 October 2023.[11] Dr Winters said:
“…To be clear her current diagnosis is of a compressive inferior brachial plexopathy secondary to a rib osteoma characterised by severe neuropathic pain and weakness.[12]
…
I agree with Dr Porteous’ assessment. [Ms Elmobayed’s] employment duties were likely the main aggravating factor due to the temporal relationship between these activities and the onset of her symptoms.
.. The persistence of symptoms after her surgery is not unexpected. I note the resection was not complete. Post-operative swelling, intraoperative irritation of the plexus, focal osteoma progression (despite resection) and further impingement are all factors which may have contributed to his symptoms post-operatively. Although this seems to be related but a [separate] issue to her initial work-related aggravation.”

SUBMISSIONS

[11] ARD page 68.

[12] The copy at ARD 68 was anything but clear, as letters had been omitted from the portion I have reproduced in bold. However when copied to my draft all the letters appeared.

Mr McManemy

Mr McManamey submitted that the issue was whether Ms Elmobayed’s claim as pleaded was estopped by the consent order of 25 March 2024. He submitted that 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 symptoms, and that they were in fact successful in doing so.
Mr Mcmanemy submitted that the diagnoses by the medical experts also supported this proposition, and he referred to those by Dr Porteous, Dr Granot, Dr Winters, Dr Banzic, Dr Stewart. He noted that the respondent did not lodge any medical evidence, although a Dr De Torres was quoted in the s 287A notice as being supportive f the applicant’s argument, but did not have sufficient expertise.

Ms Balendra

Ms Balendra 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.
Ms Balendra referred to the opinion of Dr Granot on 4 August 2023 that it was the persistence of the mass with ongoing impingement that was a plausible explanation for her symptomatology in the absence of ongoing work. She submitted that it was significant that this opinion was given prior to the surgery of 30 July 2024, as it raised the issue as to whether that later surgery related to the tumour. She referred to Dr Granot’s recommendation that surgical relief was needed in relation to the tumour, whilst pain management was required for with regard to Ms Elmobayed’s work injury.
In discussion, Ms Balendra said that although the work related injury made the tumour symptomatic, the applicant was estopped by the consent order of 25 March 2024.
Ms Balendra referred to the report of Dr Winter and submitted that his opinion of 19 October 2023 referred to symptoms that were persisting after the 2022 surgery as a result of the incomplete resection, which again was “caught by the COD.”
Dr Banzic and Dr Stewart, Ms Balendra submitted, both spoke of the thoracic outlet syndrome, but importantly, she said, Dr Stewart’s opinion was that the thoracic outlet syndrome was secondary to the tumour and previous surgery. The surgery Dr Stewart proposed was a combination of a dissection of the brachial plexus and excision of the first rib.
What was clear from the reports of Dr Banzic and Dr Stewart was that the ultimate need for the initial surgery was the tumour which had been aggravated by the work injury. As to whether the need for the present surgery arose from the 2022 surgery, Ms Balendra submitted that she relied on the reports of Dr Granot and Dr Winter. The result was that the need for the subject surgery was caught by the consent order of 25 March 2024.
Ms Balendra submitted that although the present case had been brought on the basis that the proposed surgery was for the 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.

Mr McManemy in reply

Mr McManamey submitted 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.
With regard to Dr Granot’s opinion, Mr McManamey noted that it was given in 2023, prior to the later surgical treatment. Dr Granot’s opinion about future treatment raised a possibility that the tumour may need to be further surgically treated but Mr McManemy stressed that Dr Granot’s opinion was that in the meantime Ms Elmobayed should have continuing pain management for her ongoing symptoms, which related, Mr McManamey said, to the work injury.

Ms Balendra

Ms Balendra raised a further submission at this point that Dr Stewart had said that Ms Elmobayed’s thoracic outlet syndrome was secondary to her tumour, and exacerbated by her previous surgery. Dr Stewart recommended a dissection of the brachial plexus with a supraclavicular exposure and a transaxially approach for excision of the first rib. Ms Balendra accepted that Dr Stewart in his subsequent report of 1 October 2024 diagnosed a neurogenic thoracic outlet syndrome secondary to the tumour and exacerbated by the workplace injury, but she said the reports prior to the second surgeries indicated that the tumour was exacerbated by the workplace injury, and therefore the estoppel applied. Dr Stewart “seemed to say” that the underlying condition was as a result of the workplace injury, which he was not able to say in view of the consent order of 25 March 2024.

Mr McManamey

Mr McManamey completed his submission regarding Dr Granot by referring to his diagnosis of brachial plexus irritation and displacement related to the first rib, triggered by work-related repetitive movement. Dr Stewart’s 1 October 2025 report confirmed 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.
Whilst the respondent relied on parts of Dr Granot’s report as to the reasons for the subsequent surgeries in 2024, his report was dated in 2023 and was accordingly speculative. The actual surgeon, Dr Stewart, gave his reasons following the surgery and his explanation was that the surgical treatment of 30 July 2024 was to address the thoracic outlet syndrome.

DISCUSSION

Although there is just the one issue in this matter, it has not been without complexity.
The consent order, to repeat, was in the following terms:
“1. There will be an award for the respondent in respect of an aggravation of the applicant’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.”
It can be seen that the consent order sought an admission that the applicant had no recourse to compensation for an aggravation of the tumour in her left first rib, nor for the surgical procedure treatment Dr Perera had given.
The history of this matter has some relevance. There has been no challenge to Ms Elmobayed’s account of her injury. She developed her symptoms after doing repetitive lifting above head height on 9 June 2022, which intensified over her two days off so that she took another two days off, and saw her GP on 13 June 2022. A CT scan of her cervical spine was taken on 14 June 2022 which picked up a growth in her left first rib, and as a result a CT scan of her chest was taken on 22 June 2022 which confirmed the presence of a suspected tumour. The CT report said:[13]
“..Precise nature of the lesion is unclear but it may well represent a giant cell tumour and thoracic appraisal would be appropriate. ? excision biopsy to determine best course of management…”
[13] ARD page 104.
Ms Elmobayed consulted GP Dr Harry Abdalla of Triple 333 Medical Centre on 30 June 2022.[14] Dr Abdalla noted:
“23 yo lady presents for advice regarding a left first rib tumour incidental finding on neck CT. Has been booked for surgery with cardiothoracic to remove the first rib….
Management Counselled is NOT related to her work related neck pain/injury. Will be dealt with separately…”
[14] ARD page 199.
MRI scans were taken on 1 July 2022, a nerve conduction test was done on 4 July 2022 and surgery was performed on 17 July 2022. As noted, there was a partial excision completed of the first rib.
It can be seen that Ms Elmobayed’s medical treaters acted with alacrity once the tumour appeared in the imaging. The tumour was detected on 14 June 2022 and confirmed in the chest CT scan of 22 June 2022. The surgery with Dr Perera occurred just over three weeks later on 18 July 2022.
The focus of medical attention was on the presence of a tumour in this 23-year-old’s first rib when it was incidentally discovered after the CT scan was taken on 22 June 2022, following Ms Elmobayed’s complaint of pain in her neck. There is no evidence that the treatment was in respect of her injury. The entry in Dr Abdalla’s note rather confirmed that the focus was on the tumour and that her work-related symptoms were to be dealt with later as a separate matter.
Accordingly, the applicant argued that the consent order may be seen as an admission by Ms Elmobayed that the aggravation to her previously undiscovered and asymptomatic first rib tumour was not compensable. The surgery performed by Dr Perera was accordingly admitted not to be compensable either.
Without more, that position may have been arguable. An aggravation of a pre-existing disease is not compensable unless it arises out of or in the course of employment. Ms Elmobayed now says, however, that her subsequent advice was that her actions in “lifting empty totes from ground to above head height repetitively for two hours” had caused “a soft tissue injury in her neck, left shoulder and left brachial plexus nerves” as advised by Dr Porteous, Ms Elmobayed’s medico-legal expert. Dr Porteous’ view was:[15]
“But for 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.”
[15] ARD page 48.
Dr Porteous qualified that opinion by continuing:
“She did not have any neck and shoulder pain with the tumour that clearly first occurred before the subject accident, in the first rib, and was already present at the time of that accident. There was also 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.”
The word “irritate” in this context is synonymous with the word “aggravate,” so that the terms of the consent order appeared to have been engaged – there had been “an aggravation of the applicant’s left first rib tumour.” Dr Porteous’ qualification however put the aggravation in a different context. The applicant’s argument was that the surgery by Dr Perera had been
to address the tumour only, and the linking of that surgery to the aggravation of Ms Elmobayed’s tumour restricted the terms of the admission to that context, notwithstanding that the aggravation was also implicated in the symptom complex of her thoracic outlet syndrome.
Ms Balendra relied principally on remarks made by Dr Granot in resisting that argument. The consent order was made on 25 March 2024, she said, at a time when Ms Elmobayed had the benefit of medical opinion as to the cause of her symptoms. Dr Granot had advised in August 2023 that the repetitive overhead movements had aggravated the neural contact of the brachial plexus with the underlying tumour. Ms Balendra argued that Dr Granot’s advice that Ms Elmobayed’s symptoms were persisting notwithstanding that she was no longer working was consistent with his diagnosis of brachial plexus irritation and displacement related to her tumour, triggered by her repetitive movement.
This diagnosis was common to the opinions within the evidence. Dr Porteous opined that the lifting movements had irritated the brachial plexus because of the tumour, as noted above. He also said in his further report of 15 December 2023 that the applicant had a soft tissue strain to the left shoulder, but that the tumour had been aggravated or exacerbated.
Dr Stewart advised in his first report of 26 March 2024 that the applicant’s thoracic outlet syndrome was “secondary to first rib dysplasia.” Dr Winter on 19 October 2023 agreed with Dr Porteous, diagnosing a brachial plexopathy secondary to a rib osteotoma. He noted that Ms Elmobayed’s symptoms persisted following the initial surgery, which he thought was not unexpected as the resection had been incomplete and that during the surgery, the plexus had been irritated. There was also the possibility of post-operative swelling, focal osteoma progression and further impingement which might have been contributing to her post-operative symptoms.
Mr McManamey relied on the advice by Dr Granot that the surgical review that was being organised was necessary because there was a question whether the ongoing symptoms were related to the tumour, which Dr Granot thought might be expanding in size. The relevant opinion was that which followed, Mr McManamey argued, that “ongoing pain management is required” that could “be reasonably attributed to the work-place injury, at least in part.”
The difficulty with that submission, with respect, are the words that Dr Granot added, “at least in part.” They again relate to the continuing involvement of the tumour in Ms Elmobayed’s symptoms.
Mr McManamey submitted that although there was some speculation as to the role of the tumour in the cause of Ms Elmobayed’s symptoms prior to the surgical intervention of 30 July 2024, Dr Stewart, following the 2024 surgery, stated that “the exacerbation of the thoracic outlet syndrome caused by the work case injury materially contributed to the need for surgery.”
It is also relevant that the 30 July 2024 operation was performed by both Dr Stewart and Dr Banzic, and Dr Banzic performed the excision of the first rib. He stated that the aetiology of the connection between thoracic outlet syndrome and “tumour/fibrous dysplasia” was unknown, but repetitive movement at work was a common reason for its occurrence.
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 applicant 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.
In Etherton v ISS Property Services Pty Ltd[16] President Judge Phillips at [86] cited with approval the dicta of DP Roche in Bouchmouni:
[16] [2019] NSWWCCPD 53.
“86. Roche DP considered at length the principles relating to whether consent orders can give rise to res judicata estoppels in Bouchmouni …. After referring to relevant authorities, he made the following observations:
‘I draw the following conclusions from the above authorities:
(a) consent orders create res judicata estoppels, but only to the extent of what was ‘necessarily decided’ (Habibat [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 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^[14] at [40]; Cordon Investments at [52]).’”
The pleadings and particulars and other material (in Matter W9322/23) referred to in
sub-paragraph (b) above were not before the Commission, but it may be assumed that the action was for weekly payments and for payment of the costs associated with the surgery by Dr Perera of 18 July 2022.
The issue in this case is what was “necessarily decided” by the consent order. The relevant “material” that the parties have argued is the construction of the various medical reports which have been discussed above, in the light of the applicant’s claim that the consent order of 24 March 2024 is capable of more than one meaning.
The medical reports that were issued prior to 24 March 2024 covered both the surgery by Dr Perera on 18 July 2022, and the subsequent opinions by Dr Stewart (26 March 2024), Dr Porteous (27 March 2023 and 15 December 2023) and Dr Granot (4 August 2023).
As noted above, the terms of the consent order need to be seen in the light of what a reasonable person would understand by the language the parties have used in the order, having regard to context, purpose and object of the transaction. Of particular significance is that such an interpretation is not governed by the parties’ subjective beliefs or understanding about their rights and liabilities. The test is objective and is based on what a reasonable person would understand by the language in which the parties have expressed their agreement.
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 applicant 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 applicant’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.
For these reasons, there will be an award in favour of the respondent.

[2024] NSWPIC 706

17 December 2024