Ferguson v Connemara Jack Pty Limited - [2025] NSWPICPD 55

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ferguson v Connemara Jack Pty Limited [2025] NSWPICPD 55
APPELLANT:	Tamika Ferguson
RESPONDENT:	Connemara Jack Pty Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W24054/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	28 July 2025
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal the decision pursuant to s 352(3A) of the 1998 Act. 2. I confirm Orders 1, 2 and 3 of the Certificate of Determination dated 22 October 2024. 3. I revoke Orders 4 and 5 of the Certificate of Determination dated 22 October 2024. 4. The matter is remitted to be heard and determined by another member in accordance with this Decision. 5. I grant leave for the appellant to provide a submission specifying what is sought on the discrete issue of scarring in the referral. I direct that this leave be actioned within seven days of the date of this decision. 6. Leave for the appellant to rely upon an additional ground of appeal is declined.
CATCHWORDS:	WORKERS COMPENSATION – the Member’s treatment of expert and treating medical evidence – held that the Member made a factual error to support a conclusion – nature of appeal under s 352(5) of the 1998 Act – State ofNew South Wales v Culhana [2025] NSWCA 157 considered and applied – rule 67 of the Personal Injury Commission Rules 2021 – denial of procedural fairness not established
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Turner Freeman Lawyers
Respondent:
Ms K Casey, solicitor
Hicksons Lawyers
DECISION UNDER APPEAL:	Ferguson v Connemara Jack Pty Ltd [2024] NSWPIC 592
MEMBER:	Ms D Benk
DATE OF MEMBER’S DECISION:	22 October 2024

INTRODUCTION

On a deemed date of 10 August 2018, Ms Tamika Ferguson (the appellant) suffered injuries in the course of her employment as a chef with Connemara Jack Pty Limited (the respondent).
The respondent accepted liability for the appellant’s diagnosed condition of right De Quervain’s tenosynovitis and right carpal tunnel syndrome.[1] The appellant underwent two surgical procedures on 29 August 2018 and again in October 2018 in the form of tendon release and carpal tunnel release.
[1] Application to Resolve a Dispute (ARD), pp 33–39.
After a decline in the appellant’s symptoms, she claimed consequential conditions of complex regional pain syndrome (CRPS) of the bilateral upper and lower extremities, left De Quervain’s tenosynovitis, as well as cervical and lumbar spine conditions. The respondent issued several notices[2] under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability of the appellant’s consequential conditions.
[2] ARD, pp 8–32.
The respondent ceased payment of weekly benefits upon expiry of 260 weeks and determined that the appellant had not reached a whole person impairment of at least 20% as required by the s 39 of the Workers Compensation Act 1987 (the 1987 Act).[3]
[3] ARD, pp 41–45.
An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (the Commission) by the appellant on 23 July 2024 claiming weekly benefits and medical expenses for a lumbar spine procedure. The claim in respect of the lumbar spine was later discontinued.
The issue for determination by the Member was the terms of the referral to a Commission medical assessor to assess permanent impairment for the purposes of s 39 of the 1987 Act. In terms of the real issue ultimately in dispute, this fell within a relatively narrow ambit. There was no dispute about the terms of the referral inasmuch as it referred to the right wrist injury, scarring, and CRPS of the left and right upper extremities. The dispute was about whether the CRPS extended to the appellant’s right and left lower limbs and whether this condition was causally related to the injury in question.
In a Certificate of Determination dated 22 October 2024, the Member held that the appellant did develop a consequential condition of CRPS however it was limited to the bilateral upper limbs and not the lower limbs. It is from that decision the appellant now appeals.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.

Interlocutory decision

The appellant states that the decision appealed against is interlocutory, given that it did not finally determine any entitlement or permanent impairment. The appellant states that a decision on this appeal would avoid the possibility that a second assessment of the appellant may be required and as a result, leave ought be granted.
The respondent does not agree that the Member’s findings on injury are interlocutory in nature, although it agrees that whole person impairment is yet to be determined.

Decision - interlocutory appeal

Assuming for present purposes that the Member’s decision is interlocutory in nature, leave to appeal is required in accordance with s 352(3A) of the 1998 Act. Under this provision, “The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”[4]
[4] Section 352(3A) of the 1998 Act.
The parties do not agree whether the Member’s decision is interlocutory, although I do not read the respondent’s submission as vehemently opposing this proposition. If the respondent is correct, the appeal would lie as of right.
In my view, the Member’s decision is clearly interlocutory. The decision does not finally dispose of rights.[5] The decision in essence refers the dispute to a Commission medical assessor for a decision on whole person impairment, which decision itself can be appealed to a medical appeal panel. The purpose of the referral is to assess whether the appellant’s whole person impairment is greater than 20% for the purposes of s 39 of the 1987 Act.
[5] Licul v Corney [1976] HCA 6; 180 CLR 213; 8 ALR 437, 446.
It is clearly desirable, in my opinion, that leave be granted. In that way, consistent with the objects and guiding principle of the 2020 Act, the real issues in dispute can be determined in a just, quick, and cost-efficient manner, namely in the single medical assessment.[6]
[6] See ss 3 and 42 of the 2020 Act.
The appellant is granted leave to appeal the decision pursuant to s 352(3A) of the 1998 Act.

Scarring

The appellant also raises an issue which is described as an “obvious error”.[7] The appellant says that the claim referred to the medical assessor (incorrectly referred to as an AMS) was limited to the appellant’s upper extremities and failed to include scarring in the referral, hence the obvious error to be corrected. In reply, the respondent points to Order 4 of the Certificate of Determination which specifically refers scarring to the medical assessor, scarring not having been in issue.[8]
[7] Appellant’s submissions, [5].
[8] Respondent’s submissions, [8].
Order 4 of the Certificate of Determination of 22 October 2024 clearly refers scarring to the medical assessor for assessment. The matter of scarring was not in dispute[9] which was probably why the Member felt no need to make any specific findings on that issue.
[9] See transcript of proceedings dated 25 September 2024 (T) 19.10–20; 35.30–36.11.
Consequently, I do not see any need to make any orders with respect to this particular issue raised by the appellant.
However, if the appellant considers that a correction or amendment is necessary in order to assist the medical assessor, I grant leave for the appellant to provide a submission specifying what is sought on the discrete issue of scarring in the referral. I direct that this leave be actioned within seven days of the date of this decision.

THE EVIDENCE

The issue in dispute giving rise to this appeal concerns how the Member dealt with the evidence of Dr Lai, Dr Wallace and A/Prof Sheridan. Thus, I have limited summarising the evidence to those three doctors.
Hand & plastic reconstructive surgeon, Dr Min Fee Lai, was qualified by the appellant. Dr Lai provided the following reports:
(a)    report dated 9 February 2021, following consultation via video conference on 1 February 2021;[10]
(b)    report dated 5 February 2021, impairment assessment also based on the 1 February 2021 consultation;[11]
(c)    report dated 18 March 2021, following an in-person consultation;[12]
(d)    report dated 22 September 2021, following a further consultation via video conference,[13] and
(e)    report dated 26 November 2022, following another consultation via video conference.[14]
[10] ARD, pp 46–54.
[11] ARD, pp 55–60.
[12] ARD, pp 61–63.
[13] ARD, pp 64–77.
[14] ARD, pp 78–88.
In his report dated 18 March 2021, under the heading “Physical Examination”, Dr Lai made the following observations:
“[The appellant] did not appear to be in any significant distress at the time of physical consultation”..
Upper Limbs
Right upper limb had significant continuous gross tremor throughout the consultation. Generalised swelling of her left and right wrist were present. The right hand and limb was dusky in colour and her left hand and wrist had blotchy purplish patches present.
The right hand and forearm was warmer to touch than the contralateral side. The right hand was also moist as compared to the left hand, which was slightly moist.
She was particularly sensitive to pinprick over the whole of her right upper limb as well as experiencing a tingling sensation when touched lightly. Her left upper limb was also sensitive to pinprick over the left hand and forearm region as well as experiencing a sensitive tingling sensation when touched lightly.
The active range of movements of both her left and right fingers and thumbs were normal. However, the active range of movements of both wrists, elbows and shoulders were restricted.
Lower Limbs
[The appellant] did walk with a slight antalgic gait placing more weight on her left lower limb.
Examination of her lower limbs revealed that her right foot had blotchy purplish areas. Some parts of the left foot dorsum were also purplish in colour. There was also generalised swelling in both ankles and knees.
The right foot also felt warmer as compared to the contralateral side. Both feet were moist with the right side being more moist. Her right toes intermittently also curled up indicating cramps.
Her right foot and leg were particularly sensitive to light touch as well as to pinprick. Similarly, the left side also had similar symptoms with pinprick and touch, but not to the extent of the right side.
The active range of movements of both ankles, knees and hips were all restricted.
[The appellant] does show signs of a complex regional pain syndrome type 1 in all her limbs as described in my physical findings. She also has symptoms of a complex regional pain syndrome type 1 in both upper and lower limbs.
The right upper limb symptoms and signs developed around August 2018. The left upper limb started to experience similar symptoms and signs eight months after her right upper limb. The lower limb symptoms and signs of CRPS type 1 started around September 2020. As mentioned earlier, investigations for her left upper limb and both lower limbs have yet to be carried out.”
Dr Laurent Wallace is a pain specialist who provided treatment to the appellant. Dr Wallace’s evidence can be found as follows:
(a)    report dated 31 January 2019;[15]
(b)    referral to A/Prof Sheridan dated 5 August 2021;[16]
(c) report dated 6 July 2022,[17] and
(d)    report dated 10 May 2023.[18]
[15] ARD, pp 565–566.
[16] ARD, p 2,930.
[17] Reply to Application to Resolve a Dispute, pp 62–63.
[18] ARD, pp 3,295–3,296.
In Dr Wallace’s initial report dated 31 January 2019, the doctor records the appellant’s complaints of right upper limb pain, predominantly in the hand and distal forearm. He notes that a number of the appellant’s symptoms are consisted with CRPS including:
“●    Vasomotor symptoms such as colour change and increased temperature
·        Motor trophic changes such as weakness and decreased range of motion
·        Sensory changes such as numbness and hyperalgesia
·        Sudomotor changes such as swelling and increased swelling”.
Dr Wallace notes:
“On examination she does have sensory changes such as hypoaesthesia, hyperaesthesia and dysaesthesia. She also has motor changes such as decreased strength in the right hand. The sensory changes extender [sic] up to around the mid forearm. As such, [the appellant] fulfils the Budapest criteria for CRPS.”[19]
[19] ARD, p 565.
On 5 August 2021 Dr Wallace referred the appellant to A/Prof Sheridan. The referral notes the appellant “has developed lower limb symptoms that are somewhat concerning. It may be related to the CRPS, but we need to exclude other pathology.”[20]
[20] ARD, p 2,930.
Dr Wallace in his report dated 6 July 2022 notes the CRPS in the right upper limb now affects the bilateral upper limbs, up to the shoulders and neck and also causes right lower limb pain. The doctor notes the bilateral lower limb symptoms commenced in May 2021. The doctor notes “Neurosurgical review by Dr Sheridan who doesn’t think there is any nerve compression in the lumbar spine that notes the significant sacroiliac joint findings on the bone scan and suggested that is the most likely cause.” On examination the doctor notes that the tremor is still prominent however the CRPS signs are otherwise reducing.
In Dr Wallace’s final report dated 10 May 2023, the doctor records that the CRPS was initially affecting the right upper limb but now also affects the lower limbs which he said “is not particularly rare in CRPS.” Dr Wallace says that while he is clear of the diagnosis of CRPS, he cannot be confident it is the cause of the lower limb symptoms without further information.
Neurosurgeon, A/Prof Sheridan’s evidence can be found as follows:
(a) request for surgery dated 4 May 2023,[21]
(b) clinical notes of A/Prof Sheridan.[22]
[21] ARD, p 40.
[22] ARD, pp 2,921–2,982.
A/Prof Sheridan first saw the appellant on 1 September 2021 on referral from Dr Wallace, in relation to the CRPS following “an arm injury”.[23] A/Prof Sheridan records the main reasons for the appellant consulting him was due to increasing lower back and leg symptoms. A/Prof Sheridan noted that the symptoms fit with CRPS however neuropathic or nerve compression needed to be excluded as a cause for the symptoms. A/Prof Sheridan referred the appellant for a CT scan and bone scan.
[23] ARD, p 2,922.
A/Prof Sheridan reported to Dr Wallace on 29 September 2021[24] that the CT scan did not reveal any nerve disc protrusions or nerve compression in the lower back. The bone scan showed “quite marked inflammation in the sacro-iliac joints” which A/Prof Sheridan said fit well with the current symptoms.
[24] ARD, p 2,923.
On 12 December 2022 A/Prof Sheridan reported to Dr Anna Pham at Picton Family Medical Centre[25] that it had been a year since he last saw the appellant and during that time she had worsening back and leg symptoms. A recent CT scan showed worsening disc bulging at L4-5 with nerve compression which A/Prof Sheridan said may be consistent with her deterioration. The doctor referred the appellant for a repeat bone scan and nerve conduction studies.
[25] ARD, p 2,925.
On 11 January 2023 A/Prof Sheridan reported[26] that the nerve studies revealed peripheral neuropathy as an after effect of the appellant’s diabetes and chemotherapy as a child which the doctor said was not causing a significant component on her symptoms. A/Prof Sheridan noted the bone scan revealed inflammation in her bilateral hips and knees. A/Prof Sheridan said “I think she has a combination now of a complex regional pain syndrome in her legs as well as symptoms of her lumbar stenosis at L4-5.”
[26] ARD, p 2,926.
In a letter to Dr Pham dated 31 March 2023,[27] A/Prof Sheridan reported the appellant’s back and leg symptoms had not improved and she needed to undergo an L4-5 lumbar laminectomy and discectomy and nerve root decompression. A/Prof Sheridan noted her “requirement for surgery is solely as a result of her work injury.”
[27] ARD, p 2,928.

THE MEMBER’S REASONS

The Member summarised the parties’ submissions at reasons [45]–[47]. The appellant submitted there was no dispute in relation to the injury to the right wrist, and that the real issue between the parties related to the lower extremities.[28] After taking the Member through the medical evidence, the appellant submitted the Member ought to be satisfied, on the balance of probabilities, that the CRPS was consequential to the accepted wrist injury and affected the entirety of the bilateral upper and lower limbs.[29]
[28] T 5.7–8.
[29] T 15.20–25.
The respondent conceded that the medical evidence supported the appellant had symptoms of CRPS in her bilateral upper limbs, however disputed CRPS had spread to the lower limbs. The respondent submitted that Dr Lai’s opinion that the CRPS had spread to the lower extremities should be given little weight on the basis that the doctor had not examined the appellant in-person but rather via video link, which is limited in nature.[30]
[30] T 25.30–26.11; T 30.10–14.
After noting the key principles of a consequential condition established by several key authorities, the Member traversed the medical evidence which as previously noted, exceeded 3,500 pages, many of which were duplicates, was not in any logical order and was described by the Member as “chaotic”.[31]
[31] Reasons, [15].
After considering the medical evidence, the Member was ultimately satisfied that the appellant had developed a consequential condition of CRPS in the bilateral upper limbs. The Member was not satisfied that, on a commonsense basis, the consequential condition of CRPS had affected the appellant’s lower limbs.[32]
[32] Reasons, [59].
As this appeal is limited to the Member’s treatment of the medical evidence of Dr Lai, Dr Wallace and A/Prof Sheridan, it is not necessary for me to repeat those reasons here, as they will be dealt with under each relevant appeal ground.
The Certificate of Determination issued on 22 October 2024 records:
“1.     The [appellant] sustained a workplace injury to her right wrist on 10 August 2018.
2.     The [appellant] developed a consequential condition of complex regional pain syndrome (CRPS) in the bilateral upper limbs.
3.     The [appellant] is to file and serve with the Registry no later than seven days after publication of this decision, an Amended Application to Resolve a Dispute (ARD) removing all duplicated documents and ensuring that such documents are annexed in logical and proper chronological order in accordance with Procedural Direction 3. I further direct the Registry not to remit the matter to the President for assessment by a Medical Assessor until the Amended ARD is filed and served.
4. On receipt of the amended ARD, the matter is to be remitted to the President for referral to a Medical Assessor for the purposes of assessment as to whether the degree of whole person impairment is greater than 20% for the purposes of s 39 of the Workers Compensation Act 1987 in respect of injury to the injuries [sic] arising from 10 August 2018 (inclusive of right wrist injury, scaring [sic] and CRPS of the left upper extremity and right upper extremity). The documents to be forwarded to the Medical Assessor are to include the Amended ARD and the Reply.
5.     Liberty to apply if required for the purposes of any weekly payment dispute following assessment by the Medical Assessor.”

GROUNDS OF APPEAL

The appellant advanced three grounds of appeal. They are:
Ground One - The Member erred in fact and law when she failed to consider the evidence of Dr Lai set out in her report dated 18 March 2021.
Ground Two - The Member erred in fact and law when she failed to consider the entirety of Dr Wallace’s opinion expressed in his report of 10 March 2023.
Ground Three - The Member erred in fact and law and denied the appellant procedural fairness when she found that the symptoms in the leg were due to pathology identified in radiological imaging when that proposition had not been put to her by either of the parties and of which no notice had been given.

Nature of the appeal

Since this appeal was filed, a five-member bench of the Court of Appeal delivered judgement in State of New South Wales v Culhana.[33] Culhana considered the nature of an appeal under s 352(5) of the 1998 Act, disapproving what had been the leading authority of Raulston v Toll Pty Ltd[34] on this question. The Court of Appeal rejected what it described as the ‘narrow’ view of the appellate function under s 352(5) of the 1998 Act that Raulston had provided, instead stating the following:
“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 without fully addressing whether there is an error of fact, law or discretion.”[35]
[33] [2025] NSWCA 157 (Culhana), 17 July 2025.
[34] [2011] NSWWCCPD 25 (Raulston).
[35] Culhana, [91].
After Culhana was handed down, I issued the following Direction to the parties inviting submissions on this authority:
“On Thursday 17 July 2025, the Court of Appeal handed down its decision in [Culhana].
This decision addresses the correct approach regarding the nature of an appeal to a Presidential Member under s 352 of the [1998 Act].
The parties are invited to provide any supplementary submissions with respect to Culhana and its effect on this appeal.
Such submissions are to be filed and served by the parties by no later than 5 pm on Friday 25 July 2025.”

Appellant’s submissions

The appellant provided further written submissions dated 25 July 2025. After describing what was decided in Culhana, the appellant submitted the following:
“14. In this case the Member did not hear any oral evidence. Accordingly the Member did not have the advantage of hearing witnesses or being influenced by matters such as demeanour. In those circumstances the President is in as good a position as the Member to weigh up the evidence and reach conclusions about matters of fact. It is no longer sufficient to dismiss an appeal on the basis that the conclusion was open to the Member.
15.    There is, however some conflict in the reasoning.
16.    At [89] he said:
17.    ‘In Warren v Coombes, the joint judgment referred to the perpetuation of demonstrated error as a denial of the purpose of the appellate process. Reflected in a question posed by McHugh JA during the hearing, a perpetuation of demonstrated error in the scope of the statutory right of appeal is antithetical to the purpose of the appellate process.’
18.    This paragraph may seem to support the idea that it is no longer necessary to find error in order to uphold an appeal.
19.    This must take account of the terms of the section which expressly limit an appeal to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error.
20.    His Honour noted that the limiting words precedes words of repeated generality and that the class of errors was very broad. He thought that the words ‘invoked the incidents of the most familiar appeal in the legal system, namely, the appeal by way of rehearing. In most appeals by way of rehearing, it necessary to identify an ‘error of fact, law or discretion’. Such appeals are not, to use the traditional language used by the High Court in those decisions, appeals de novo’
21.    The conclusion to be reached is that whilst it is still necessary to identify an error of fact law or discretion it is sufficient for the Presidential Member to consider the evidence and reach a conclusion about what is the correct conclusion. If the conclusion is different to that reached by the Member than the Member was in error.”
The appellant continues by submitting that the approach post Culhana will mean that in many cases remittal for rehearing will no longer be appropriate. Rather the approach should be to substitute the correct finding. In this case, the appellant asserts that if this occurs, I would amend the terms of the referral to the medical assessor.[36] Finally the appellant seeks to include an additional ground of appeal:
“To the extent that it is necessary the Appellant seeks leave to rely upon an additional ground of Appeal. ‘The member erred when she found that the Appellant has not to [sic] established that she has suffered a consequential condition of CRPS affecting her lower limbs’.”[37]
[36] Appellant’s further written submissions dated 25 July 2025, [25]–[27].
[37] Appellant’s further written submissions dated 25 July 2025, [28].

Respondent’s submissions

The respondent supplied supplementary submissions dated 25 July 2025. Like the appellant, the submission begins with a description of the decision in Culhana before the respondent describes its application in this case. The respondent maintains its earlier submissions with respect to Grounds One and Two. On Ground Three the following is put:
“2.8 The respondent notes the reliance on the first principle outlined in Raulston in their earlier submission. The respondent now relies on Coombes and Fox in support of its submission.
2.9 The decision in Coombes only applies a duty for appeal judges to give effect to their own judgement where they [are] satisfied that the trial judge was in no better position to decide the question then they are themselves or, if having given full weight determined the trial judge was wrong.
2.10 Accordingly, the respondent submits that the Presidential Member must still give appropriate deference and due weight to the advantages provided to the Member in making their decision in this matter and may only disturb the findings of the Member if they determine they are in the same position as the Member or, having given full weight to the Member’s decision determined they were wrong.
2.11 The respondent maintains its submissions that the appellant has fundamentally mischaracterised the Member’s conclusions at paragraphs 30 – 31 of their submission and accordingly has made a faulty argument that the conclusions reached by the Member were wrong.
2.12 The respondent submits that the member ultimately found that the medical evidence did not demonstrate an unbroken chain from the injury to the right wrist to the development of symptoms in the lower limb on account of CRPS.
2.13 The respondent submits that, in giving full weight to the member’s reasoning as outlined paragraphs 48 to 59 in the Certificate of Determination, it could not be found that the member had come to the conclusion alleged by the appellant. The respondent submits that the member cannot be fairly criticised for drawing an inference they, in fact, did not draw.”

DISCUSSION

I would make the following remarks regarding my approach to this appeal in light of what I have set out (above) arising from the recent Court of Appeal decision in Culhana. Firstly, no viva voce evidence was heard by the Member in this matter. This is a very common occurrence given the manner in which first instance disputes are heard and determined in the Commission. There is no right to require such evidence be given. Rather, leave must be sought from the Member and granted.[38] Secondly, the advantages that a first instance decision maker would usually have over an appellate body having heard such evidence, are limited in this appeal. What this means is that I am in as good a position as the Member was to consider the evidence and to draw what I determine are the correct inferences if I consider that the Member was in error. In other words, I will not perpetuate a demonstrated error as referred to in Warren v Coombes. I do not accept the appellant’s suggestion, and I put it no higher than a suggestion, that error may no longer be necessary to prove for an appeal to be upheld.[39]
[38] Rule 34 of the Personal Injury Commission Rules 2021; Procedural Direction PIC 1, [38].
[39] Appellant’s further written submissions dated 25 July 2025, [18].

As to Ground One

In this ground, the appellant takes issue with how the Member dealt with the evidence of Dr Lai. Dr Lai is a specialist hand and plastic reconstructive surgeon who was qualified by the appellant to provide an expert medical opinion.
The appellant refers to reasons [57] where the Member says the following about Dr Lai’s opinion:
“Dr Lai’s opinion that the CRPS is a consequential condition in the lower limbs has not been made with reference to any physical examination (rather telehealth) and has been made in the absence of review of any investigations of the lumbar spine which ultimately resulted in surgical recommendation and intervention. Simply put, Dr Lai has not considered the other pathology and the complete symptom profile, and so I conclude her findings are based on an incomplete history.”
The appellant then makes the following submission:
“14. Dr Lai saw the appellant in a face-to-face consultation in his Sydney rooms on 8 March 2021. At that time the examination disclosed that the appellant walked with a slight antalgic gait placing more weight on her left lower limb.
…
16. On the basis of those physical findings Dr Lai said that the appellant does show signs of a complex regional pain syndrome type 1 in all her limbs as described in her physical findings.
17. Contrary to the reasoning of the member Dr Lai had identified clear and unequivocal signs of CRPS in a face-to-face physical examination. The report is significant evidence in establishing the existence of CRPS in the appellant's lower limbs. The opinion describes signs which could not be explained as being the consequence of any back problem. The failure by the member to consider this significant evidence was a significant failure. Furthermore the evidence is expressly contrary to the member’s consideration that Dr Lai’s opinion was only based upon an examination via telehealth.
18. In the subsequent report of 22 September 2021 (ARD 58) Dr Lai said that it was not unusual for the symptoms of CRPS to travel to other limbs. Dr Lai also affirmed that the appellant had the symptoms of complex regional pain syndrome of her right and left lower limbs which will satisfy the criteria in the Workcover guide. These are in regard to sensory, vasomotor, sudomotor/oedema and motor/trophic changes in the right and left lower limbs.”
In response, the respondent submits that the Member is not required to summarise each of the medical reports in the proceedings.
After referencing reasons [57] (above), the respondent submits the following;
“15. It is submitted that the purpose of commenting that Dr Lai had found initially a diagnosis of CRPS over telehealth was to explain why less weight could be given to Dr Lai’s findings. In addition, the Member has also pointed to Dr Lai not considering the other pathology in order to exclude other possible diagnoses (as the assessor is directed to do when considering the diagnostic criteria at Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition) 2016.
16.It is submitted that the Member is not required to adopt the findings of causation of one doctor or another, and that sufficient reasoning has been provided to confirm why she found Dr Lai’s comments less persuasive.”

Consideration

Before turning to the precise error asserted by the appellant and whether the submission can be made good, it is necessary to examine how the Member approached Dr Lai’s evidence.
The Member’s review of the medical evidence in this matter commences at reasons [15], concluding at reasons [44]. In this section of the decision, entitled “Medical evidence”, the Member is setting out the salient aspects of that evidence, as seen by the Member.
The Member considers Dr Lai’s opinions at reasons [16]–[18] referencing reports dated 9 February 2021 and 22 September 2021, both of which were undertaken by means of telehealth consultation. I have reviewed both reports and both state that they were telehealth consultations. The Member records the difficulties associated with the assessment of whole person impairment assessment by telehealth, as stated by Dr Lai,[40] at reasons [17]. The Member also records that at the 22 September 2021 assessment also by telehealth, the doctor’s findings remained unchanged.[41]
[40] ARD, p 58.
[41] Reasons, [18].
Dr Lai is also mentioned at reasons [39] where the following appears: “Dr Bodel, orthopaedic surgeon was qualified by the [appellant] and reported on 12 December 2023. Unlike Dr Lai, this was a face to face assessment” (emphasis added). The Member returns to this point about Dr Lai not physically examining the appellant in the dispositive section of her decision at reasons [57] where Dr Lai’s opinion is effectively discounted or given little weight.
The specific complaint in this appeal ground relates to the Member failing to have regard to Dr Lai’s report dated 18 March 2021.[42] This report plainly states that Dr Lai consulted the appellant in his Sydney rooms on 8 March 2021. The doctor also describes in detail the physical examination he undertook of the appellant in a section of the report dedicated to that examination. The doctor reports after this examination:
“[The appellant] does show signs of a complex regional pain syndrome type 1 in all her limbs as described in my physical findings. She also has symptoms of a complex regional pain syndrome type 1 in both upper and lower limbs.”[43]
[42] ARD, p 61.
[43] ARD, p 63.
This report was also referred to by counsel for the appellant in the first instance submissions[44] and the point was made that the findings were “on examination.”
[44] T 11.20–27; T 12.1–35.
It is apparent that the Member was of the mistaken view that Dr Lai never physically examined the appellant. As much is apparent from the passages I have recounted from reasons [39] and [57]. This mistaken belief has, in my view, led the Member to either significantly discount, or give less weight to, Dr Lai’s opinion, and this is apparent from reasons [39] and [57]. In reasons [39], Dr Lai’s opinion is being unfavourably compared to Dr Bodel’s opinion, because Dr Bodel had actually seen the appellant. When one gets to reasons [57], Dr Lai’s opinion about the appellant’s condition is said to have “not been made with reference to any physical examination (rather telehealth) …”. Both statements at reasons [39] and [57] are factually in error once one examines Dr Lai’s report dated 18 March 2021.
I would note that the respondent in its submissions does not advert to the 18 March 2021 report at all, rather stating that the Member is not obliged to consider every report.
In my view the Member deployed her finding about Dr Lai’s opinion to support (in part) her finding at reasons [59] that the appellant had not suffered the asserted consequential condition to her lower limbs. Dr Lai’s opinion, when viewed in total, cannot be dismissed on the erroneous basis that the doctor never physically examined the appellant. He did and his conclusions are based on his findings at physical examination.
I am satisfied that the finding that Dr Lai never physically examined the appellant is an error of fact. The error of law is relying on this factual error to support the conclusion reached at reasons [59].
Ground One has been established.

As to Ground Two

The appellant in this ground complains about the Member’s treatment of Dr Laurent Wallace’s opinions. Dr Wallace is the appellant’s treating pain specialist.
At reasons [50], the Member stated that she did not find the doctor’s opinion “persuasive” on the diagnosis that the appellant had CRPS in her upper and lower limbs. The Member’s view was based upon the doctor’s statements that the CRPS diagnosis was predicated upon excluding other pathology and further investigations were required to confirm the opinion.[45] The Member stated at reasons [51] that “Dr Wallace has not conclusively diagnosed symptoms in the lower limb as arising from CRPS. His reports are unclear about what further information is required and I note he has sought an opinion from Dr Sheridan, neurosurgeon.”
[45] See reasons [50] and [58].
The appellant says that the Member has misinterpreted Dr Wallace’s views, and had only considered part of his report dated 10 May 2023 at ARD, p 3,295.[46] The appellant says that the Member has failed to have regard to the sections of Dr Wallace’s reports where the doctor had made it clear that the appellant did suffer from CRPS.[47]
[46] Appellant’s submissions, [23].
[47] Appellant’s submissions, [24]–[25].
In response, the respondent says that there is no evidence that the Member failed to consider the entirety of Dr Wallace’s opinions and that the Member is not required to provide a detailed summary of every report before her.[48] The respondent points to various paragraphs within the Member’s decision where the conditional nature of the doctor’s diagnosis appears.[49] The respondent says that the Member did not misinterpret Dr Wallace’s opinion, rather the Member explained why the opinion did not support the diagnosis.[50]
[48] Respondent’s submissions, [17].
[49] Respondent’s submissions, [19]–[22].
[50] Respondent’s submissions, [25].

Consideration

The conditional or qualified nature of Dr Wallace’s opinion was specifically addressed by the appellant in the submissions made to the Member. The appellant took the Member to Dr Wallace’s opinion in his 10 May 2023 report. The doctor stated in the report:
“3. Causation
…
(c) Yes, your client has complex regional pain syndrome initially only affecting the right upper limb but now also affecting the lower limbs. This is not particularly rare in CRPS.
…
(g) No, I disagree. My main disagreement is that I think the diagnosis of CRPS is clear. It’s also likely to be the cause of the lower limb symptoms although I can’t be completely confident of this without further information.”
With respect to this opinion, the appellant made the following submission to the Member:
“He does put that qualification and I think it’s proper to draw your attention to it. However, one’s dealing with the balance of probabilities and what we’re being told is this particular transference from the upper limbs to the lower limbs is not particularly rare. It’s known to medical science. The doctor thinks that that is the cause, he can’t be absolute about it, we don’t have to be absolute about it.”[51]
[51] T 8.12–19.
For the following reasons, I do not accept the appellant’s assertion of error with respect to how the Member construed Dr Wallace’s opinion.
Firstly, the doctor’s opinion, on its face, was qualified. The Member has not, as alleged in this ground, misinterpreted it. The Member was entitled to construe the opinion as qualified in her evaluative assessment of the evidence. This is precisely the type of exercise whose resolution is “one of ‘fact and degree’ in respect of which views might legitimately differ”.[52] There was no error in approach by taking the doctor’s opinion at face value, which was a qualified opinion, and not being satisfied that it provided a basis to make findings.
[52] Australian Air Express Pty Ltd v Langford [2005] NSWCA 96, [15] per McColl JA (Ipp and Tobias JJA agreeing).

Secondly, the appellant is effectively criticising the Member for not taking what is a qualified opinion as in fact being determinative. No error in the Member’s approach has been identified.
I would not have reached a different conclusion than the Member did with respect to Dr Wallace’s opinion.
Ground Two is dismissed.

As to Ground Three

The appellant complains that the Member construed A/Prof Sheridan’s evidence as supporting a conclusion that the appellant’s leg symptoms were attributable to a lumbar condition. The appellant says that this assertion was never submitted by the respondent to the Member and that A/Prof Sheridan’s reports do not support this conclusion. The appellant says that the Member’s conclusion is unsupported by the evidence of A/Prof Sheridan and that she was denied procedural fairness by not being given an opportunity to be heard on this issue. The appellant additionally complains that the Member failed to consider all of the evidence, pointing to a report of A/Prof Sheridan dated 4 May 2023.[53]
[53] ARD, p 40.
In response, the respondent argues that the Member was aware of A/Prof Sheridan’s opinion or that it had altered over time.[54] The respondent says, contrary to what the appellant submits, that the Member did not conclude that the appellant’s leg symptoms were related to the lumbar condition and that the Member did not conclude a lack of causal connection on that basis.[55] The respondent says that the Member was simply not satisfied that there was an unbroken chain from the right wrist injury to the symptoms in the appellant’s lower limbs, referencing reasons [57].
[54] Respondent’s submissions, [26]–[28].
[55] Respondent’s submissions, [29].

Consideration

The gravamen of the appellant’s complaint in this ground is that the Member made a finding that her leg symptoms were “solely attributable to her lumbar condition”.[56] The appellant in her submissions in this ground refers to reasons [52],[57] which I conclude is the passage where the relevant error appears.
[56] Appellant’s submissions, [31]–[33].
[57] Appellant’s submissions, [28].
Reasons [52] reads as follows:
“Dr Sheridan recorded significant symptoms of weakness in the lower limbs resulting in falls. He ordered investigations and noted CT scan findings in November 2022 of worsening disc bulging at the L4-5 with nerve compression which may be consistent with her deterioration and recommended laminectomy at the L4/5 level with discectomy along with nerve root decompression given the pathology identified. He did report ‘I think she has a combination now of a complex regional pain syndrome in her legs as well as symptoms of her lumbar stenosis at L4-5. I have organized to have bilateral CT guided transforaminal steroid injections at L4-5 and I will review her after these are done’. The report does not offer any explanation of how he made a diagnosis of CRPS in the legs nor its connection with the original injury but does satisfy me that the symptoms in the legs were due to the pathology identified on radiological imaging necessitating surgery.”
However, the Member continued at reasons [57] stating:
“Whilst I accept the [appellant] does have ‘pain’ in the lower limbs, there is a paucity of evidence reconciling such symptoms as being the result of CRPS, and if in fact due to CRPS its connection to the right wrist injury. Pathology assessed by Dr Sheridan was significant to result in surgical recommendation to address lower leg weakness which was said to arise from nerve root pathology. Whilst I appreciate that orthopaedic symptoms arising from lumbar spinal pathology resulting in radiation to the lower limbs and the symptoms of CRPS are vastly different in character, I am not satisfied that any of the medical reports before me demonstrate an unbroken chain from the injury to the right wrist to the development of symptoms in the lower limb on account of CRPS.”
If one considers A/Prof Sheridan’s reports as a whole, the following is clear. Over time commencing in 2021,[58] the Associate Professor is noting various symptoms that the appellant is undoubtedly suffering from and is attempting to discern their origin. However, while the Associate Professor notes in this report that the appellant suffered from CRPS, he records: “Her main reason for coming to see me is increasing lower back but particularly leg symptoms.” The Associate Professor then stated: “These fit with a chronic regional pain syndrome but nevertheless we need to exclude neuropathic or nerve compression causing it.” It is then noted that a CT scan has been organised. The Associate Professor then reports on the CT scan in a letter 29 September 2021[59] which shows nothing in terms of nerve issues, although it is noted that a bone scan shows “quite marked inflammation in the sacro-iliac joints which I think fits quite well with her current symptoms.”
[58] Report dated 7 September 2021, ARD, p 2,922.
[59] ARD, p 2,923.
More than 12 months later the Associate Professor reports worsening back and leg symptoms.[60] The report then states: “She has a recent CT scan which shows worsening disc bulging at L4-5 with nerve compression which may be consistent with her deterioration.”
[60] Report dated 12 December 2022, ARD, p 2,925.
The Associate Professor then, in the 11 January 2023 report,[61] says the following: “I think she has a combination now of complex regional pain syndrome in her legs as well as symptoms of lumbar stenosis at L4-5”.
[61] ARD, p 2,926.
The final report which the appellant has drawn attention to is the 4 May 2023 report.[62] The appellant says the Member did not consider this report, which the appellant says attributes two sources for the appellant’s leg pain, CRPS and other neurological symptoms.
[62] ARD, p 40.
I do not consider that the appellant’s complaints in this ground fairly reflect the Member’s approach to A/Prof Sheridan’s evidence. The Member was clearly cognisant of the two sources of pain in the appellant’s legs. However, the Member noted at reasons [52] and [57] which I have set out (above) that she was not satisfied that the Associate Professor had explained or reconciled the leg pain being related to the CRPS. The Member says that in light of this, she is satisfied that the leg pain does relate to the pathology found on radiological imaging.[63]
[63] Reasons, [52].
In fairness to the Member and the Associate Professor, the series of reports are addressed to other treating doctors. It is not apparent that the Associate Professor has in terms been asked to turn his mind to the question of causation as I do not read any of his reports as addressing that question. I do not accept the submission that by not referring to the 4 May 2023 report, the Member made a finding not supported by the evidence.
The question is should the Member have raised the issues with the Associate Professor’s opinion with the parties? The essential issue prosecuted in this ground is a lack of procedural fairness.
For the following reasons, I do not accept this submission. Proceedings in the Commission involve the parties filing and serving all the material upon which they rely.[64] There is no denial of procedural fairness if the party is aware of the case that he or she has to answer.[65] In this case it is clear that the real issue in dispute was whether the appellant’s CRPS extended to her legs and was causally related to her work injuries. While A/Prof Sheridan has said what he said about the appellant’s CRPS, that opinion is not supported by any path of reasoning.[66] This is evident from a review of the Associate Professor’s opinions as they developed from 2021 to 2023. While I am not being critical of the Associate Professor’s evidence, on the question of the CRPS in the appellant’s legs being related to the injury, the opinion is an ipse dixit.[67]
[64] See r 67 of the Personal Injury Commission Rules 2021.
[65] New South Wales Police Force v Winter [2011] NSWCA 330 from [81].
[66] See the plurality in Dasreef Pty Ltd v Hawchar [2011] HCA 21, [42].
[67] Southern Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [130]–[132], per McColl JA.
I would remark in conclusion that a tribunal member is not required under the rules of procedural fairness to give a “running commentary” upon what the member is thinking about the evidence.[68] Even had the Member raised this issue, namely the lack of a path of reasoning, being referred to A/Prof Sheridan’s report of 4 May 2023 would not have answered that concern.
[68] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, [48].
In my opinion, the Associate Professor’s evidence on CRPS being causally related to the injury and a cause of the appellant’s leg pain is at best equivocal, and at worst unreasoned.
Ground Three has not been established. Ground Three is dismissed.

CONCLUSION

The appellant has succeeded in proving one of three grounds of appeal. It is apparent to me that the Member’s finding with respect to Dr Lai’s evidence is inextricably linked with the overall consideration of the medical evidence in this case. The matter should therefore be remitted and decided afresh by another member.
I would note however that there was no challenge on this appeal to Orders 1 and 2 of the Certificate of Determination dated 22 October 2024. I will not revoke these orders.
Nor will I revoke Order 3. The Member, with great justification, raised her concerns about how the ARD was compiled and presented. I endorse the Member’s remarks unreservedly. The issues in this matter are confined to the question of whether the appellant’s CRPS extends to her lower limbs and is causally related to her accepted right wrist injury. The evidence contained in the ARD should be directed to this question. Order 3 is directed to achieving this end and not only do I confirm it, I endorse it.
While I will revoke Order 4, I note that the only question for the Member on remitter is whether to add to the existing Order 4 the appellant’s lower limbs. In terms of the revocation of Order 4, the matter remitted to the Member is not constrained by the dismissal of appeal Grounds Two and Three. But given that Order 4 is about the terms of the referral to a medical assessor, I appreciate that the Member and the parties on remitter may need the ability or discretion to refashion Order 4, it is therefore appropriate to revoke it. But I would direct that the Member and the parties be mindful of the terms and basis for this revocation. On remitter the Member is to approach the consideration of the issues in dispute, being whether the appellant suffers CRPS in her lower limbs and is this condition causally related to her accepted wrist injury, without constraint. I appreciate that the issues are important to both parties and neither should be limited in terms of the arguments that they might advance on remitter.
I now turn to Order 5. Order 5 provides the parties with liberty to apply in relation to a matter unrelated to any issue canvassed on appeal. Given that the matter is being remitted to another member and Order 5 is essentially a case management type order, I will revoke Order 5 and leave the further management of the matter to the member who is allocated this dispute.
The appellant has suggested in its further written submissions of 25 July 2025 that in light of what it says should be the post Culhana approach, I should not remit the matter, rather the submission asserts that I should substitute the finding and amend the referral to the medical assessor. Culhana dealt with the correct nature of the appeal with respect to a Presidential Member exercising the appellate function under s352(5) of the 1998 Act. It said nothing about the redetermination function in s352 (6A) of the 1998 Act.
For the following reasons, I decline to proceed in this manner. I do not accept, as submitted by the appellant, that my redetermining the matter is the net effect of the Court of Appeal decision in Culhana, although I would remark that the submission was not developed in any detail. Further, this appeal has in part succeeded and in part failed. In Ground Three I have identified what I consider to be issues with the opinions of A/Prof Sheridan. In the event that were I to proceed to determine the matter, as I am urged to do, it would only be on the basis of the material before me, including the Associate Professor’s opinions in their current state. On remitter it may be that the appellant will wish to consider its response to my remarks in Ground Three and in my view this opportunity ought be given. I do not consider that this case is an appropriate case to proceed in the manner as submitted by the appellant.
Finally, the appellant has, in response to my direction to address the Court of Appeal’s decision in Culhana, sought to rely on a new ground of appeal.[69] No leave has been sought to rely on an additional ground nor has the respondent had any opportunity to respond to this ground. I decline to grant leave to the appellant to rely upon an additional ground of appeal.
[69] Appellant’s further written submissions dated 25 July 2025, [28].

DECISION

The appellant is granted leave to appeal the decision pursuant to s 352(3A) of the 1998 Act.
I confirm Orders 1, 2 and 3 of the Certificate of Determination dated 22 October 2024.
I revoke Orders 4 and 5 of the Certificate of Determination dated 22 October 2024.
The matter is remitted to be heard and determined by another member in accordance with this Decision.
I grant leave for the appellant to provide a submission specifying what is sought on the discrete issue of scarring in the referral. I direct that this leave be actioned within seven days of the date of this decision.
Leave for the appellant to rely upon an additional ground of appeal is declined.

Judge Phillips

PRESIDENT

28 July 2025