Goss v Secretary, Department of Transport
[2025] NSWPICPD 54
•28 July 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Goss v Secretary, Department of Transport [2025] NSWPICPD 54 |
APPELLANT: | Graham Goss |
RESPONDENT: | Secretary, Department of Transport |
INSURER: | QBE TMF |
FILE NUMBER: | A1-W25047/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 28 July 2025 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 6 December 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – a party is bound by the conduct of their case at first instance – Metwally v University of Wollongong [1985] HCA 28; Coulton v Holcombe [1986] HCA 33 applied – on appeal, a Presidential Member should not examine the decision-maker’s reasons minutely with an eye attuned to error – Allianz Australia Insurance Limited v Cervantes [2011] NSWSC 1296 applied – it is not an error if the opposite inference sought to be drawn is merely a possible explanation for the known facts – Fuller-Lyons v New South Wales [2015] HCA 31 applied – where the evidence of a witness is unreliable, objective evidence of the fact is required – Devries v Australian National Railways Commission [1993] HCA 78; Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D King, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr B Jones, counsel | |
| Hall & Wilcox Lawyers | |
DECISION UNDER APPEAL: | Goss v Secretary, Department of Transport [2024] NSWPIC 680 |
MEMBER: | Mr A Halstead |
DATE OF MEMBER’S DECISION: | 6 December 2024 |
INTRODUCTION AND BACKGROUND
Mr Graham Goss (the appellant) was employed by the Secretary, Department of Transport (the respondent) as an emergency patrol vehicle operator, which required him to attend to motor vehicle road accidents. On 21 December 2023, he was attending a motor vehicle accident when he was hit on his right-hand side by a passing vehicle. The appellant alleged that he injured his left shoulder in that incident and claimed the costs of and incidental to proposed surgery in the form of a left shoulder arthroscopy and rotator cuff repair. The respondent denied liability for the claim.
The dispute proceeded to arbitration and Member Halstead issued a Certificate of Determination on 6 December 2024,[1] in which he determined that he was not satisfied that the appellant suffered the injury alleged and entered an award in favour of the respondent.
[1] Goss v Secretary, Department of Transport [2024] NSWPIC 680 (reasons).
The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents in evidence.
I have had 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 and their submissions. 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 Workplace Injury Management and Workers Compensation Act 1998 Act (the 1998 Act) have been met.
THE EVIDENCE
The appellant’s statement
The appellant provided a statement dated 15 August 2024.[2] He gave a background of his education and sporting interests and said that he had worked as an emergency patrol worker for approximately 25 years, which was somewhat physically demanding work. He added that the work he performed was dangerous, mainly because of the conduct of passing motorists.
[2] Application to Resolve a Dispute (ARD), pp 1–7.
The appellant stated that his prior medical history included removal of his right kidney and treatment for prostate cancer. He said that he was taking medication for the pain in his left shoulder.
The appellant described a previous incident in which he was attending to a burst water main and while sitting in his van, a car crashed into the van, causing significant damage to the van and injuries to himself, as well as his co-worker. The appellant said that he injured his back, neck and hamstring and suffered psychological issues. He recalled that he also suffered brief, minor shoulder pain which resolved soon after the incident and he was able to continue to work up to the time of the injury, the subject of these proceedings. He referred to a medical assessment conducted in 2022 by Dr Charles New, orthopaedic surgeon, in which Dr New assessed him as having 0% permanent impairment in relation to his shoulders.
The appellant provided a detailed account of the incident on 21 December 2023 (the incident the subject of these proceedings), which occurred while he was directing traffic. He said that:
“The car that struck me … collided with me on the right hand side of my body causing me to turn and twist around to my left hand side. I remember turning around to my left and catching a glimpse of the vehicle that struck me … As the car hit the right hand side of my body and I twisted and turned to the left, my knee twisted as did my shoulder, especially my left shoulder … .”[3]
[3] Appellant’s statement, [18].
The appellant asserted that he suffered injuries to his right hand, right wrist and shoulder, spine, right hip, and right and left knees. He added that he felt aching in his left shoulder, it was sore and painful, and he felt as though he had “thrown [his] left shoulder out.”[4]
[4] Appellant’s statement, [26].
The appellant advised that he ceased work, made a claim for workers compensation and his claim was accepted. He indicated that he attended his long term general practitioner, Dr Bill Moss, who certified that the appellant was unfit for work, arranged for scans and tests of his back, left knee and left shoulder and referred him to Dr Warren Kuo, orthopaedic surgeon. The appellant said that Dr Kuo arranged for an ultrasound of the left shoulder, which was performed on 2 February 2024 and disclosed pathology in the left shoulder that was highly likely to require surgery.
The appellant indicated that Dr Kuo advised him to undergo a course of physiotherapy and prescribed medication, neither of which was helpful. He recalled that he consulted Dr Kuo in May and June of 2024, when Dr Kuo advised him that surgical repair was his only option.
The appellant asserted that the injury to his left shoulder was recorded in the Certificates of Capacity issued by Dr Moss from the day following the injury. He advised that on 16 May 2024, Dr Kuo wrote to the respondent requesting approval to perform the left shoulder arthroscopy and rotator cuff repair, but the respondent declined liability in respect of the left shoulder condition.
The appellant said that after he received the letter from the respondent declining liability in respect of the left shoulder, he consulted his lawyers, who arranged for him to be medically examined by Dr New on 5 July 2024. He stated that Dr New examined his left shoulder and commented on the left shoulder pathology. The appellant referred to Dr New’s opinion provided in his report directed to the appellant’s legal representatives and to the report of Dr Kuo. He summarised Dr Kuo’s opinion.
The appellant reported that he continued to experience pain and restricted movement which affected his ability to sleep and his ability to perform domestic tasks. He said that he was using his right shoulder more frequently, which had also become symptomatic. He described the effect that the left shoulder condition had on his social, sporting and domestic life.
The clinical records of Dr Moss
The clinical notes recorded by Dr Moss commencing from 2012 were in evidence.[5]
[5] ARD, pp 181–394.
On 30 January 2023 and on 28 September 2023, Dr Moss referred the appellant to Dr Eli Olschewski, orthopaedic surgeon, in respect of right knee pain. In the referrals, Dr Moss included a past “inactive” history of left subacromial bursitis and left supraspinatus tear present in April 2019.[6]
[6] ARD, pp 234–235, 339–340.
On 30 March 2023, Dr Moss recorded the Team Care Arrangements in place for treatment of the appellant. The “Chronic Disease Diagnoses” included supraspinatus and subacromial bursitis which had last been assessed in March 2023.[7]
[7] ARD, p 267.
Dr Moss referred the appellant to Dr Kuo on 9 February 2024.[8] Dr Moss described the reason for the referral as:
“+L shoulder xray +US= supraspinatous tear + subacromium bursitis note present on US 2019 ? aggravation or pre existing tear for orthopaedic management please”.
[8] ARD, pp 380–381.
Certificates of Capacity issued by Dr Moss dated 10 February 2023[9] and 15 December 2023[10] in respect of the previous injury on 4 April 2021 described the appellant’s psychological and physical injuries and included reference to sprained tendons of the left arm and placed limitations on the appellant’s capacity for work because of the numerous injuries.
[9] ARD, pp 247–249.
[10] ARD, pp 215–217.
A Certificate of Capacity issued by Dr Moss on 22 December 2023 certified the appellant as having no capacity for work as a result of the injury the subject of these proceedings. The diagnosis of injury provided by Dr Moss indicated that the injuries sustained were to the right hand, right hip and right knee.[11]
[11] ARD, pp 239–241.
A further Certificate of Capacity issued by Dr Moss on 4 January 2024 described the injuries sustained as injury to the right hand, right hip and right knee, and included injury to the left trapezius.[12]
[12] ARD, pp 259–261.
In a Certificate of Capacity dated 12 January 2024, Dr Moss certified the appellant as having no capacity for work from 13 January 2024 and described injuries to multiple body parts, including “left trapezius/shoulder injury”.[13]
[13] ARD, pp 264–266.
A physiotherapy report dated 14 December 2023 provided by Mr David Elvish, Independent Physiotherapy Consultant, and directed to the respondent, was in evidence.[14] The report related to the appellant’s previous injury dated 4 April 2021 and was produced following a downgrade in the appellant’s capacity for work in May 2022. Relevantly, Mr Elvish noted that Dr New assessed the appellant on 21 September 2022 and provided a “diagnosis of lumbar spondylosis and referred pain in both upper legs, chronic pain associated with the rotator cuff bilateral osteoarthritis.”[15]
[14] ARD, pp 206–208.
[15] ARD, p 207.
Dr Warren Kuo
Dr Kuo reported to Dr Moss on 28 March 2024.[16] He took a history of the appellant suffering injuries to his right wrist, hip, knees, back and left shoulder on 21 December 2023, shortly after he had returned to work from previous injuries. He noted the appellant complained of pain, made worse with abduction and overhead activities as well as weakness and stiffness in the shoulder. He said that the appellant had trialled physiotherapy, which mainly consisted of massage, and was prescribed Panadeine Forte with only occasional use of Nurofen because of his past right nephrectomy. He performed a physical examination and reviewed the results of the x-rays and ultrasound undertaken on 2 February 2024. He opined that the appellant had sustained a left shoulder rotator cuff impingement and tears. He recommended that the appellant undergo strengthening exercises with a physiotherapist and return for review in 6 to 8 weeks following receipt of MRI scan results.
[16] ARD, p 396.
The appellant returned for review by Dr Kuo on 16 May 2024. Dr Kuo reported to Dr Moss that the MRI scan of the left shoulder confirmed a “left full thickness supraspinatus rotator cuff” and that there was associated bursitis. He recommended that the appellant continue with physiotherapy but said that it was likely that the appellant would require surgery. He indicated that he had written to the respondent seeking approval for a left shoulder arthroscopy, with rotator cuff repair and biceps tenodesis.[17]
[17] ARD, p 397.
Dr Kuo reviewed the appellant again on 20 June 2024 and reported to Dr Moss that physiotherapy had only provided the appellant with limited benefit. He said that the appellant was experiencing ongoing intermittent pain in the left shoulder so that proceeding with the surgery should be considered. He noted that the respondent had disputed liability, and that the appellant was receiving legal assistance in respect of his claim.[18]
[18] ARD, p 398.
Dr Kuo provided a fourth report dated 5 August 2024.[19] He said that the appellant had consulted him on four occasions between 28 March 2024 and 5 August 2024. He confirmed the history and complaint of symptoms recorded by him in his report dated 28 March 2024. He diagnosed left rotator cuff tear and opined that, based on the history, the appellant’s employment was a substantial contributing factor to the symptoms.
[19] ARD, pp 179–180.
Dr Kuo considered that the surgery was reasonable and necessary, given that the non-operative treatment options of physiotherapy, analgesics and anti-inflammatories had failed to offer the appellant relief. He observed that the surgery was appropriate and had the potential to relieve the appellant’s symptoms and improve function. He said that, without surgery, the appellant’s prognosis was poor.
Dr Kuo provided a further report dated 17 October 2024 at the request of the appellant’s legal representatives.[20] He provided a history of injury consistent with that recorded in his earlier reports. He diagnosed left rotator cuff injury with ongoing impingement. He said that his opinion was based solely on the history of the appellant having been impacted on the right hand side by a motor vehicle that caused him to twist and turn onto his left, which mechanism could plausibly have caused a left shoulder injury. He considered it important that the appellant’s left shoulder was not symptomatic prior to the injury and after the injury the appellant was plagued by left shoulder pain. He noted the history recorded by Dr Stephen Rimmer, orthopaedic surgeon, that the appellant did not report the left shoulder symptoms at the time of the injury. Dr Kuo said, however, that the appellant had provided him with the history of the onset of left shoulder pain at that time and added that there were also medical reports from Dr Moss that indicated that the left shoulder was a source of the appellant’s pain.
[20] Appellant’s Application to Admit Late Documents (AALD) dated 24 October 2024, pp 5–6.
Dr Kuo referred to the comment by Dr Rimmer that the rotator cuff tear was degenerative in nature. He described that opinion as speculative and opined that as there was no muscle atrophy the condition was less likely to be chronic.
Dr Charles New
Dr New provided a report dated 24 July 2024.[21] He recorded the circumstances of the injury in which a vehicle collided with the appellant on the right hand side of his body. He noted that the appellant suffered injuries to his right hand, wrist, cervical spine, right shoulder, lumbar spine, right hip, right knee and left knee. Dr New reported that the appellant attended Dr Moss the following day and was subsequently referred to Dr Kuo, primarily in respect of left shoulder symptoms.
[21] ARD, pp 173–178.
Dr New noted that Dr Kuo recommended surgery to the left shoulder which was declined by the respondent. Dr New took a brief past medical history which did not include reference to the appellant’s prior injury. He described the appellant’s ongoing difficulties, which he said were predominantly caused by significant left shoulder pain.
Dr New performed a physical examination. In respect of the left shoulder, he found tenderness over the supraspinatus and trapezius. He observed that the appellant suffered from full thickness supraspinatus rotator cuff tear and subacromial bursitis. He reviewed the ultrasound investigation of the left shoulder performed on 2 February 2024, which he said showed “Full thickness partial tear of supraspinatus tendon, degenerative glenohumeral changes, moderate subacromial bursitis.”[22]
[22] Dr New’s report, p 4, ARD, p 176.
Dr New considered that there was a connection between the appellant’s employment and the injuries described. He indicated that the appellant had not had any significant shoulder problems prior to the injury and opined that the appellant’s employment was the main contributing factor to the development of symptoms. He noted that while the appellant had age related changes to many parts of his body, he had been asymptomatic in all the body parts complained of, including both shoulders, and had previously been capable of working full time without restrictions. He reviewed the appellant’s capacity for work and observed that the surgery proposed by Dr Kuo was reasonably necessary, was appropriate, and there was no available alternate treatment. He concluded that the appellant’s employment had materially contributed to the need for surgery, the surgery had the potential to be effective and was generally accepted by other medical professionals.
Dr New provided an earlier report dated 28 September 2022 directed to the appellant’s legal representatives in relation to the appellant’s previous injury occurring on 4 April 2021 when the appellant was sitting in his work vehicle and a car collided with his vehicle, the impact of which was significant.[23] Dr New noted that the appellant suffered injuries to his back, neck and shoulders, as well as psychological injury. He reported that the main issue was the appellant’s lumbar spine and bilateral hamstring symptoms.
[23] Respondent’s AALD dated 29 October 2024, pp 12–17.
Dr New advised that the appellant had been off work for 10 weeks but was able to return to pre-injury duties under the care of his general practitioner, Dr Moss, and was receiving physical therapy and counselling. Dr New recorded that the appellant had pain in the cervical spine and scapulae, lumbosacral spine with radiation into the thighs and bilateral arthritic knee pain. He physically examined the appellant and found on examination of the shoulders that the appellant had a full range of movement but experienced pain in the zones of extreme range of movement.
Dr New reviewed the radiological investigations, including the x-ray and ultrasound investigations performed on 4 April 2019, which he said showed “Left shoulder glenohumeral osteoarthritis, rotator cuff tendinosis, supraspinatus, subacromial/subdeltoid bursitis.”[24] Relevantly, he diagnosed the appellant as having, amongst other things, chronic pain associated with the rotator cuff. He offered a long-term prognosis of gradually increasing severity of pain in respect of his multiple musculoskeletal conditions confirmed on the radiological studies. Dr New noted increasing levels of discomfort in the cervical and lumbar spines as well as in both shoulders and knees. He was of the view that the appellant’s musculoskeletal conditions had been aggravated in the accident but had sufficiently resolved to the level where he could return to work without restrictions. He considered that the appellant’s employment was the main contributing factor to the aggravation of those conditions.
[24] Dr New’s report, p 4, respondent’s AALD, p 15.
Dr New assessed the appellant’s whole person impairment as a total of 11% in respect of the lumbar spine, cervical spine and the impact on the appellant’s activities of daily living. He attributed 0% permanent impairment to the knees and shoulders.
Dr New provided a supplementary report at the request of the appellant’s legal representatives dated 22 October 2024.[25] He referred to the appellant’s injury the subject of these proceedings as being “well documented”. He confirmed that the appellant was under the care of Dr Kuo in respect of his left shoulder symptoms, and that Dr Kuo had requested approval for the proposed surgery.
[25] Appellant’s AALD dated 24 October 2024, pp 2–3.
Dr New noted that the appellant advised that he had been examined by Dr Rimmer on behalf of the respondent, who was said to be of the view that the left shoulder condition did not result from the injury and that the surgery was therefore not reasonably necessary. Dr New commented that the mechanism of injury reported to him by the appellant was that the passing vehicle made contact with the appellant’s right side which caused the appellant to twist his left shoulder. He opined that that mechanism of injury would result in pathology in the left shoulder, which had been investigated.
Dr New confirmed his view that the surgery proposed by Dr Kuo was reasonably necessary. Dr New conceded that Dr Rimmer was entitled to form his own view, but he certainly disagreed with that view, particularly in relation to whether the surgery was reasonably necessary. He advised that he was “very comfortable” with the contents of his own reports, including this report.
Dr Stephen Rimmer
Dr Rimmer provided a report on 11 September 2024 at the request of the respondent.[26] Dr Rimmer took a history of the earlier injury in 2021, which he recorded occurred in 2022 and involved injury to both knees. He noted that the appellant was off work for an extended period of time but returned to pre-injury duties just four days before the injury the subject of these proceedings.
[26] Respondent’s AALD dated 29 October 2024, pp 2–9.
Dr Rimmer provided a brief history of the injury on 21 December 2023 in which the appellant was struck on his right hand side. Dr Rimmer observed that the appellant’s general practitioner provided a Certificate of Capacity the following day in which injuries to the right hand, right hip and right knee were recorded but the left shoulder was not mentioned, and that a further certificate dated 4 January 2024 did not refer to any injury to the left shoulder either. Dr Rimmer said that, when he questioned the appellant about left shoulder symptoms, the appellant was “extremely vague” and responded that “it was a secondary injury” but did not explain further.[27]
[27] Dr Rimmer’s report, p 2, respondent’s AALD, p 3.
Dr Rimmer noted that the appellant was referred for physiotherapy and to Dr Kuo on 28 March 2024 for treatment in respect of the left shoulder and, because of persisting symptoms, Dr Kuo requested approval to perform left shoulder arthroscopy, rotator cuff repair and biceps tenodesis.
Dr Rimmer said that the appellant complained of symptoms in the lumbar spine, intermittent symptoms in the right and left legs and intermittent pain in the superior aspect of the left shoulder with associated weakness. Dr Rimmer recorded that the appellant attended physiotherapy twice per week, which provided little benefit, and took oral analgesics as required. He commented that the appellant did not have a home-based exercise plan such as Thera-Band therapy, which he said was standard practice, and had not undergone a cortisone injection, which was also standard practice.
Dr Rimmer performed a physical examination of the appellant’s cervical spine, lumbar spine, upper and lower limbs and the appellant’s left shoulder. He found that tone, power, sensation and reflexes were all present in the upper limbs and the left shoulder was non-tender and in a symmetrical position. He assessed the appellant’s active range of motion in the left shoulder which the appellant complained caused him pain. Dr Rimmer said that the impingement test was equivocal. He said that the left shoulder showed a full range of motion, although the appellant indicated that it caused him some discomfort. Dr Rimmer considered that the appellant exhibited behaviour that may have been inconsistent or exaggerated.
Dr Rimmer reviewed the radiological investigations, noting that the MRI scan of the left shoulder dated 17 April 2024 disclosed a partial thickness degenerative tear of the supraspinatus tendon.
Dr Rimmer opined that, on the basis that the first two Certificates of Capacity did not record a history of left shoulder injury, and that the appellant confirmed that the left shoulder pain developed later, the appellant did not injure his left shoulder in the incident on 21 December 2023. He was of the view that, for those reasons, he did not consider that the surgery proposed by Dr Kuo was either reasonable or necessary as a result of the injury on 21 December 2023.
The relevant radiological evidence
An x-ray and ultrasound of the appellant’s left shoulder were performed by Dr James Metri, radiologist, on 4 April 2019.[28] The clinical history provided was of stabbing pain in the left shoulder supraspinatus with impingement. The x-ray confirmed joint space narrowing, irregularity of the rotator cuff footplate, degenerative change in the acromioclavicular joint and early acromial spurring. The ultrasound of the left shoulder revealed early glenohumeral joint osteoarthritic change, rotator cuff tendinosis, tearing of the supraspinatus with bursitis and impingement.
[28] Reply to Application to Resolve a Dispute (reply), pp 17–18.
The appellant underwent a further x-ray and ultrasound of his left shoulder on 2 February 2024. The reports were not in evidence, however, were summarised by Dr Kuo as follows:
“X-rays taken 2nd of February 2024 show some irregularity of the greater tuberosity. An ultrasound reports a 15x5mm full thickness supraspinatus rotator cuff tear with bursitis”.[29]
[29] ARD, p 396.
Dr New also summarised the findings provided in the ultrasound of that date as:
“Full thickness partial tear of supraspinatus tendon, degenerative glenohumeral changes, moderate subacromial bursitis.”[30]
[30] Dr New’s report dated 26 July 2024, ARD, p 176.
An MRI scan of the left shoulder was performed on 17 April 2024 by Dr Eugene Ng, radiologist.[31] The findings recorded were of a full thickness tear of the supraspinatus tendon and rotator cuff impingement.
[31] ARD, pp 402–403.
THE LEGISLATION
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) relevantly defines injury as:
“Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”.
THE MEMBER’S REASONS
The Member noted that it was not disputed that the surgery was reasonably necessary, but the issue for him to determine was whether the appellant suffered an injury to his left shoulder in the incident on 21 December 2023. The Member dealt with various objections to the admission of late evidence and ultimately excluded a subsequent report by Dr Rimmer dated 31 October 2024 and CCTV footage recorded in the vicinity of the incident on the day of injury. The material was excluded because it was served by the respondent very late in the day and the appellant had not had the opportunity to meet the evidence.
The Member quoted the paragraphs provided by the appellant in his statement in which he described how the injury occurred. The Member referred to the appellant’s evidence that he felt immediate pain in the left shoulder and that the appellant stated that the impact with the car caused him to twist and turn, which displaced his left shoulder and caused the pathology. The Member noted that the appellant indicated that he lodged a claim for compensation and advised the respondent that he was ceasing work.
The Member reviewed the respondent’s initial notification of injury form dated 22 December 2023. He commented that, while the form referred to “slight contact to the right knee and hip” and that the appellant required no medical treatment, it was unclear that the reference to “slight contact” was recorded exactly as reported by the appellant.
The Member referred to the evidence provided by Dr Moss. He noted that on the day following the accident, Dr Moss issued a Certificate of Capacity in which he recorded injuries to the right hand, right hip and right knee. The Member further referred to the subsequent certificates dated 4 January 2024, in which there was reference to the left trapezius, 12 January 2024 and 24 January 2024, which noted left “trapezius/shoulder injury” and a certificate which appeared to be dated 9 February 2024, in which Dr Moss diagnosed left trapezius strain, left “shoulder supraspinatus tendon tear” and left “shoulder subacromial bursitis.” The Member commented that it could be presumed that the more precise diagnosis may have been available because the appellant was referred for an x-ray and ultrasound of the left shoulder, although the radiological reports were not in evidence.
The Member noted that, in the referral from Dr Moss to Dr Kuo dated 9 February 2024, a past history was noted of “left bursitis, subacromial” and “left supraspinatus tendon tear” with a date of onset as 9 April 2019. The Member observed that the same history was recorded in referrals to Dr Olschewski dated 30 January 2023 and 28 September 2023, Dr Ko dated 16 June 2023, and a dental referral on 12 May 2023. He added that the past history in the clinical records of a tear in the appellant’s left supraspinatus tendon presumably related to the radiological report by Dr James Metri dated 4 April 2019, which pre-dated the injury the subject of these proceedings. The Member summarised the report provided by Dr Metri.
The Member proceeded to summarise the evidence provided by Dr Kuo, in which Dr Kuo discussed the findings on the radiological investigations dated 2 February 2024 and the MRI scan results dated 17 April 2024. The Member further summarised the evidence of Dr Kuo in respect of the reported failure of any relief from the conservative treatment offered and the recommendation for surgery.
The Member referred to Dr Kuo’s opinion expressed in his report dated 5 August 2024. The Member commented that Dr Kuo did not explain the basis for his opinion that the appellant’s employment was a substantial contributing factor to the left shoulder symptoms and neither did Dr Kuo explain how the incident on 21 December 2023 caused injury to the left shoulder.
The Member quoted from the report of Dr Kuo dated 17 October 2024 in respect of the question of causation of the left shoulder symptoms, summarised by me at paragraph [32] above. The Member observed that Dr Kuo did not explain the mechanism of how an injury to the left shoulder would occur because of twisting and turning to the left and did not provide any reasoning to support his opinion that the injury to the left shoulder was caused by the motor vehicle striking the appellant. The Member considered that Dr Kuo’s reference to medical reports from Dr Moss that indicated that the left shoulder pathology was the source of the appellant’s pain was vague as to whether those documents included the referral dated 9 February 2024, which indicated pre-existing left shoulder pathology and which had been present since 9 April 2019. The Member said that, if it did include reference to that referral, then it would indicate that the appellant experienced pain and pathology prior to 21 December 2023.
The Member referred to Dr Kuo’s observation that Dr Rimmer’s comment that the rotator cuff tear was degenerative was “speculation” was inconsistent with the findings on the radiological report dated 4 April 2019, which disclosed “with a high degree of clinical certainty”[32] the presence of an established tear. The Member commented that Dr Kuo did not appear to have had the benefit of that radiological report, and if he did, it was reasonable to assume that Dr Kuo would have addressed that earlier, similar pathology diagnosed in 2019 and its contribution to the pathology diagnosed in 2024, particularly in his reports prepared for medico-legal purposes.
[32] Reasons, [32].
The Member concluded that the opinion of Dr Kuo therefore lacked substance because Dr Kuo had failed to provide a proper reasoning path for his conclusion and had failed to address the earlier pathology. He thus concluded that the opinion of Dr Kuo as to causation was of limited weight.
The Member noted the conclusion reached by Dr Eugene Ng, radiologist, in the MRI scan report dated 17 April 2024. He observed that Dr Ng noted a left rotator cuff tear in the clinical history, without providing any further “context or comment at to the source of that history.”[33]
[33] Reasons, [35].
The Member turned to the evidence of Dr New. He noted that, in his report dated 24 July 2024, Dr New listed the various injuries complained of by the appellant, but did not refer to the left shoulder symptoms, yet Dr New reported that the appellant described the left shoulder as the “major issue” to Dr Moss and Dr Kuo.
The Member referred to Dr New’s comment on the ultrasound investigation dated 4 April 2019 as confirming “minor degenerative change and spurring on the AC joint. Supraspinatus showed partial thickness articular surface changes with early glenohumeral joint osteoarthritic changes.” The Member said that the report referred to was probably that of Dr Metri of the same date, but, noting that Dr New did not comment on the partial thickness tear of the supraspinatus or the reported tendonitis mentioned by Dr Metri, it was not clear as to whether Dr New had a full copy of that report.
The Member added that Dr New provided no reasoning or any basis for his conclusions that there was a connection between the appellant’s employment or that the appellant’s employment was a substantial contributing factor to the injury. The Member referred to the history recorded by Dr New that the appellant had not had any significant shoulder issue prior to the injury. The Member considered that statement to be “demonstrably incorrect”[34] given that the appellant had without doubt experienced left shoulder symptoms prior to the injury which required investigation. The Member observed that the statement was also inconsistent with Dr New’s earlier report dated 28 September 2022, when Dr New recorded that the appellant had suffered injuries to his back, neck, and shoulders in the incident on 4 April 2021.
[34] Reasons, [40].
The Member extracted the passage from Dr New’s later report dated 22 October 2024 in which Dr New recorded the mechanism of injury as reported to him by the appellant. The Member concluded that Dr New did not explain that mechanism of injury but merely recounted the version of events as described by the appellant. The Member observed that there was no proper explanation as to how the appellant being hit on the right hand side would cause him to twist his left shoulder and suffer the pathology reported by Dr Kuo. The Member considered that it was not a matter for the Commission to speculate as to whether twisting of the left shoulder could cause the diagnosed injuries. The Member concluded that, in the absence of such reasoning or explanation, together with the doubt as to whether Dr New had a full copy of the radiological report dated 4 April 2019, the weight to be afforded to the reports of Dr New was limited.
The Member turned to the evidence of Dr Rimmer. He noted that Dr Rimmer found the appellant to be extremely vague in relation to the left shoulder condition and its causation, and that the appellant described it as a “secondary injury.” He further noted that Dr Rimmer had available to him the MRI scan of the left shoulder dated 17 April 2024. The Member referred to Dr Rimmer’s opinion that the left shoulder was not injured in the incident and that the presence of constitutional age related change was relevant to the question of whether the appellant’s employment was relevant in respect of a consideration of contributing factors. The Member also referred to the history recorded by Dr Rimmer that the appellant confirmed that the shoulder symptoms developed sometime later than the injury, and that the appellant could not identify the cause of his left shoulder symptoms.
The Member remarked that the opinion of Dr Rimmer that the appellant’s left shoulder condition was not caused by the incident on 21 December 2024 exposed the same difficulties as those identified in the evidence of Dr Kuo and Dr New. He said that Dr Rimmer did not provide any reasoning or explanation for his conclusion. The Member formed the view that there was insufficient evidence to be able to draw the inference that constitutional age related changes were responsible for the symptoms. The Member added that Dr Rimmer did not have available to him the earlier clinical notes and investigations that described the appellant’s previous left shoulder symptoms. The Member concluded that, on that basis, the evidence of Dr Rimmer was also afforded the appropriate weight.
The Member observed that he was required to determine whether the appellant suffered a frank injury to his left shoulder when he was hit by a motor vehicle on 21 December 2023. He observed that:
(a) s 4 of the 1987 Act requires that, for an injury to be compensable, it must have arisen out of or occurred in the course of employment;
(b) s 9A of the 1987 Act requires that the employment must be a substantial contributing factor to the injury;
(c) the appellant bore the onus of establishing on the balance of probabilities that the injury occurred;
(d) injury refers to both the event and the pathology arising from the event (quoting Lyons v Master Builders Association of NSW Pty Ltd),[35] and
(e) a personal injury is a sudden and ascertainable or dramatic physiological change to the normal physiological state (quoting Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear).[36]
[35] (2003) 25 NSWCCR 422.
[36] [2014] NSWWCCPD 47.
The Member proceeded to consider whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the appellant’s left shoulder as a result of the motor vehicle incident. He firstly referred to the respondent’s initial notification of injury form dated 22 December 2023, which recorded that there had been “slight contact” with the appellant’s right hip and knee, which suggested the incident was only of a minor nature. The Member considered however, that that evidence was not conclusive as to whether that was how the appellant described the incident. The Member considered that the available evidence suggested that the incident was more substantial. He referred to the appellant’s statement evidence that the vehicle collided with him and caused him to twist around to the left. The Member considered that:
“The nature of that evidence is unequivocal; the effect of the contact was immediate, resulted in left shoulder pain and the shoulder joint was thrown out of its normal position.”[37]
[37] Reasons, [54].
The Member noted, however that the appellant attended Dr Moss on the day after the injury and there was no mention of left shoulder symptoms recorded in the clinical note of that day. The Member referred to the description provided by the appellant as to what occurred in the incident, and was of the view that had the appellant injured his left shoulder as described, it could be assumed that he would have mentioned such a significant injury to the doctor, who would have made note of it. He expressed the view that, according to the appellant’s evidence, the injury was “notable and substantial”[38] and so the absence of complaint to the doctor was of significance.
[38] Reasons, [55].
The Member observed that it was not until the third consultation, which was more than three weeks after the incident, that it was first noted that the appellant injured his left shoulder. The Member considered that the delay in reporting what was said to be a significant and immediate injury and reported to Dr New on 5 July 2024 as “the major issue” was not inconsiderable.
The Member referred to the appellant’s submission that there was likely to have been a delay in the development of symptoms, which was consistent with the history recorded by Dr Rimmer that the symptoms did not present until later. It was also consistent with the evidence of Dr New that the left shoulder was not included in the list of injuries on the day of the incident. The Member reasoned, however that the submission was directly inconsistent with the appellant’s own description of immediate pain following contact with the vehicle, which contradicted the account of the injury and the time of onset of the symptoms given to both Dr New and Dr Rimmer. The Member formed the view that the discrepancy in that evidence was significant and irreconcilable. The Member reiterated that the cause of the left shoulder condition was the central issue in this case and yet the appellant’s statement evidence and accounts to the medical experts were contradictory.
The Member concluded that it was not possible to reach any concluded view as to how the appellant’s left shoulder condition arose and the appellant’s evidence on that point was unreliable and should be afforded little weight.
The Member also referred to what he described as the “historical evidence of left shoulder pain and injury prior to the 21 December 2023 incident.”[39] He observed that it was unfortunate that the evidence from the medical experts did not assist in determining the extent, if any, to which the pre-existing condition could be relevant to this claim. The Member said that the evidence disclosed a left shoulder injury in April 2019 and a further incident on 4 April 2021. He was of the view that he was unable to determine whether either of those events may have made any contribution to the left shoulder condition or whether either or both of them were the cause of left shoulder pathology.
[39] Reasons, [59].
The Member concluded that the evidence relied upon by the appellant was either unreliable or did not address the critical medical issues in this case. He was therefore not reasonably satisfied that there was a sudden and ascertainable or dramatic physiological change or disturbance of the state of the appellant’s left shoulder on 21 December 2023. He explained that he was unable to determine what was the state of the appellant’s left shoulder prior to the incident on 21 December 2023. He added that he did not accept that there was sufficient evidence to determine whether the appellant’s employment was a substantial contributing factor to any injury. He referred to the absence in the clinical records of any reference to the left shoulder on the day after the incident, the reference to left trapezius symptoms two weeks after the incident, and the first reference to left shoulder being made three weeks after the event. He considered that, for the reasons already provided, the medical evidence was deficient, and he was therefore unable to address the factors set out in s 9A(2) of the 1987 Act.
The Member observed that:
“The [appellant’s] case is based upon conflicting evidence, a lack of medical evidence of substance and is generally muddled about how the injury is said to have occurred. No cogent explanation has been given as to how a right-side contact by a vehicle might cause left shoulder injury without an associated impact with some other object, which has not been contended to have happened. The reference to twisting and turning is vague and does not assist in resolving the conundrum.
I cannot be satisfied, based on the evidence, that the workplace incident on 21 December 2023 was a substantial contributing factor to, and so did not cause, the [appellant’s] left shoulder condition.”[40]
[40] Reasons, [62]–[63].
The Certificate of Determination issued on 6 December 2024 records:
“The Commission determines:
1. The Commission is not reasonably satisfied the [appellant] suffered a frank injury to his left shoulder during employment with the respondent on 21 December 2023.
2. Award for the respondent.”
GROUNDS OF APPEAL
The appellant raises five grounds of appeal as follows:
(a) Ground One:
(a)the Member appears to erroneously use the word ‘condition’ in making an adverse finding in relation to s 4 of the 1987 Act, and
(b)in the context of the Member’s adverse finding in relation to injury pursuant to s 4(a) of the 1987 Act, the Member appears to have failed to consider s 4(b)(ii) of the 1987 Act;
(b) Ground Two: the Member failed to give adequate weight to the opinions of Dr Kuo and Dr New;
(c) Ground Three: the Member erred in the manner in which he considered the apparent delay in reporting the injury;
(d) Ground Four: the Member failed to appropriately consider the prior left shoulder condition when the appellant was not experiencing symptoms directly prior to the incident on 21 December 2023, and
(e) Ground Five: the Member erred in indicating that the mechanism of injury did not cause an injury pursuant to s 4 of the 1987 Act.
SUBMISSIONS
As to Ground one
The appellant’s submissions
The appellant quotes s 4 of the 1987 Act and a passage from a decision of a non-presidential member, in which the non-presidential member discussed the distinction between a personal injury and a disease injury as set out in Zickar v MGH Plastic Industries Pty Ltd[41] and North Coast Area Health Service v Felstead.[42] The appellant submits that after those decisions were issued, s 4 was amended to require that, for the purposes of an injury pursuant to s 4(b) of the 1987 Act, the employment must be the main (and not simply a substantial) contributing factor to the injury.
[41] [1996] HCA 31.
[42] [2011] NSWWCCPD 51.
The appellant submits that, if the Member found that appellant’s injury was an aggravation, acceleration, exacerbation or deterioration of a disease, then any such aggravation, acceleration, exacerbation or deterioration needed to be the main contributing factor. The appellant asserts that if the main contributing factor was satisfied, it was then open to the Member to consider whether s 4(b)(ii) of the 1987 Act applied. The appellant asserts that the Member failed to consider whether the accident could have been a disease injury pursuant to s 4(b)(ii), thus satisfying s 4.
The appellant submits that his evidence was that there were symptoms, even if they arose weeks after the event, that showed that he injured his shoulder in the incident on 21 December 2023. The appellant says that after that event, he experienced symptoms that were not present prior to the incident.
The appellant refers to a further decision of a non-presidential member in which the Member observed that it was not necessary for there to be a worsening of the disease itself, provided there was an increase in the symptoms and restrictions associated with the disease.[43] The appellant also quotes from DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly,[44] in which Roche DP observed that it is well established that a disease is aggravated if the condition is made more grievous or has a more serious effect on the worker and, irrespective of whether the pathology is accelerated, the disease condition is aggravated or exacerbated if there has been an increase in symptoms and restrictions and has become more serious to the worker.
[43] Sunarya v Hunter Valley Buses [2024] NSWPIC 66, per Member Batchelor, [50].
[44] [2011] NSWWCCPD 43.
The appellant asserts that, irrespective of the pre-existing pathology, the Member was required to determine whether the condition was made more serious and erred by failing to do so. The appellant submits that the Member erred by “failing to adequately consider an injury as broadly defined by s 4 (including s 4(b)(ii)).”[45]
[45] Appellant’s submissions, [26].
The appellant submits, however, that Dr New’s evidence was that this injury was not a disease process. The appellant says that he was asymptomatic prior to the incident, was capable of working full time without restrictions, and he was hit by a car. The appellant contends that it appeared that Dr New did not rule out that the pre-existing changes could have been aggravated, accelerated, exacerbated or resulted in a deterioration caused by the injury. The appellant submits that while his injury could have fallen under either s 4(a) or s 4(b)(ii), which the Member needed to consider, it appears that the Member did not rule out whether there was some kind of aggravation, acceleration, exacerbation or deterioration.
The appellant refers to the Member’s conclusions that he could not be satisfied that:
(a) the incident caused the appellant’s left shoulder condition;
(b) the appellant suffered a “frank” injury on 21 December 2023, or
(c) the incident on 21 December 2023 was a substantial contributing factor to the left shoulder condition.
The appellant asserts that the Member erred because he was not required to determine that the incident on 21 December 2023 caused the appellant’s left shoulder condition and says that it was unclear as to what was meant by the reference to a “condition” is “questionable and vague.”[46] The appellant says that all the Member was required to determine was whether the appellant had suffered an injury pursuant to s 4 of the 1987 Act.
[46] Appellant’s submissions, [31].
The respondent’s submissions
The respondent submits that the case proceeded before the Member on the basis that the appellant had suffered an injury pursuant to s 4(a) of the 1987 Act and it was never the appellant’s case that he suffered a disease injury within the meaning of s 4(b)(ii). The respondent points to the transcript of the arbitration proceedings where it was clarified that in the ARD, the injury was pleaded as a personal injury and described as a “frank” injury to the left shoulder.[47] The respondent further points to a Direction issued by the Member on 13 September 2024 in which the dispute was identified as whether:
“… due to an incident on 21 December 2023, the [appellant] suffered personal injury to his left shoulder in the course of his employment with the respondent: s 4 of the [1987 Act]”.
[47] Transcript of Proceedings (T), Goss v Secretary, Department of Transport [2024] NSWPIC 680, T14.24–26.
The respondent also refers to submissions made by counsel for the appellant at the arbitration that the injury constituted a left full thickness supraspinatus rotator cuff tear.[48]
[48] T16.1–2; T16.9–11; T16.13–15; T23.29–32.
The respondent asserts that the appellant is bound by the manner in which the case was run at first instance, and it is not open for the appellant to now say that the Member ought to have considered the application of s 4(b)(ii). The respondent cites Metwally v University of Wollongong[49] and Coulton v Holcombe[50] as authority for that proposition and quotes from the judgment of McColl JA in Brambles Industries Ltd v Bell,[51] in which her Honour observed that a failure to address a matter that was not raised does not constitute an error of law.
[49] [1985] HCA 28 (Metwally).
[50] [1986] HCA 33 (Coulton).
[51] [2010] NSWCA 162, [29]–[30].
The respondent refers to the appellant’s allegation that the Member fell into error by using the word “condition” in describing the appellant’s injury. The respondent quotes from the judgment of Rothman J in Allianz Australia Insurance Limited v Cervantes,[52] in which his Honour observed that a court on judicial review should not be concerned with looseness in language, should not examine the decision-maker’s reasons minutely with an eye attuned to error and should not scrutinise the reasons over-zealously. The respondent submits that, while Cervantes involved a different statutory scheme, those principles are equally applicable to this appeal.
[52] [2011] NSWSC 1296 (Cervantes).
The respondent contends that on a fair reading of the Member’s reasons, the Member’s reference to the “condition” was plainly intended to be a reference to the appellant’s left shoulder injury, as contemplated by s 4(a). The respondent says that, in any event, it was necessary for the Member to use that word because the precise nature of the appellant’s alleged injury was uncertain. The respondent says that because the Member found there was no injury, for example an injury causing a supraspinatus tendon tear, the Member used the term “condition” in a general sense to describe the “injury”.
As to Ground Two
The appellant’s submissions
The appellant asserts that the reasons provided by Dr Kuo that it was plausible that the “twist and turn” to the left could cause injury to the left shoulder were sufficiently adequate. The appellant points to Dr Kuo’s reasoning that the appellant was asymptomatic prior to the incident on 21 December 2023. The appellant submits that it is unclear what remains to be explained and contends that weight should have been afforded to this evidence as to injury and the Member erred in failing to do so.
The appellant refers to the Member’s conclusion that Dr Kuo’s reasoning lacked substance, was not supported by any proper reasoning, and that Dr Kuo failed to address the pathology, so that Dr Kuo’s opinion should be given little weight. The appellant asserts that the Member’s reasoning is problematic, partly because the Member, in determining the question of injury, placed too much weight on the fact that the appellant had a prior condition but also because the Member failed to consider relevant evidence.
The appellant refers to the Member’s observation that it was uncertain as to whether Dr Kuo had the benefit of the 2019 radiological report of Dr Metri that disclosed the earlier pathology and that it was reasonable to expect that Dr Kuo would have addressed that evidence and assessed the contribution of the earlier pathology to the appellant’s presentation in 2024. The appellant points out that, in the referral letter to Dr Kuo, Dr Moss included reference to the left shoulder investigations and queried whether there had been an aggravation or pre-existing tear. The appellant says that the Member ought not to have drawn the inference that the extent to which Dr Kuo considered the prior condition was not clear. The appellant says that the Member should have drawn the more reasonable inference that the 2019 investigation was considered. The appellant asserts that this is particularly so when:
(a) at paragraph [31] of his reasons, the Member considered Dr Kuo’s reference to the reports from Dr Moss as having mentioned the left shoulder as the source of pain and pathology but that it was unclear as to whether those reports considered included the referral letter from Dr Moss, which referred to the pathology originally recorded in 2019;
(b) the basis of the referral was in part to draw Dr Kuo’s attention to the prior condition, and
(c) it was likely that Dr Kuo had been aware of the investigation dated 4 April 2019.
The appellant submits that the Member failed to quote the direct reference to the 2019 investigation contained in the first paragraph of the referral, which was the “very basis” of the referral.[53] The appellant asserts that the Member erred by failing to consider that relevant evidence. The appellant contends that the opinion provided by Dr Kuo was not lacking in substance. He asserts that it should be presumed that Dr Kuo considered the basis for the referral, as well as the mechanism of injury and reached his view, taking into account that the appellant’s left shoulder was asymptomatic prior to the incident in 2023 and that injury caused the need for the surgery. The appellant submits that Dr Kuo provided sufficient reasons and found that an injury pursuant to s 4 had occurred in the 2023 incident. The appellant adds that “such a consideration is only of limited relevance to the question of whether the worker suffered an injury under s 4 (including s 4(a) and s 4(b)(ii)).”[54]
[53] Appellant’s submissions, [45].
[54] Appellant’s submissions, [47].
The appellant refers to the Member’s consideration of the evidence of Dr New and the Member’s observation that Dr New provided no reasoning for his conclusion of causation of the left shoulder condition. The appellant quotes from the Member’s reasons where the Member considered that there was an absence of a cogent explanation as to how the twisting when coming into contact on the right hand side would be sufficient to result in a supraspinatus tear. The appellant points to Dr New’s opinion that that mechanism of injury as described by the appellant would result in the pathology in the left shoulder and submits that it was open to Dr New to form the opinion that such a mechanism could cause left shoulder injury. The appellant says that what is required is to prove that the appellant suffered an injury under s 4 and submits that it was Dr New’s opinion that the described mechanism could have caused the injury in circumstances where there was a complaint of symptoms closely proximal to the event, regardless of whether those complaints were immediate. The appellant submits that it is a matter of logic or common sense to infer that the injury could have occurred following an impact on the appellant’s right hand side causing the opposite shoulder to twist. The appellant says that a ‘common sense’ approach should be taken and Dr New’s consideration of the mechanism of injury was within his field of expertise, so that adequate weight should be afforded to his evidence. The appellant submits that the Member erred in failing to do so.
The appellant points out that in 2022, Dr New examined the appellant and provided a medical report in relation to his previous injury, including the appellant’s left shoulder, so that he was well aware of the appellant’s left shoulder symptoms prior to this injury. The appellant says that it may have been the case that when the appellant reported that he had not had any significant shoulder problems prior to the incident on 21 December 2023, he was most likely advising that the left shoulder symptoms were not significant, in the context of his own evidence that he had not experienced shoulder symptoms of note for some time prior to 21 December 2023. The appellant asserts that, for the Member to consider that the appellant’s statement that he had not experienced any previous significant shoulder problems was “demonstrably incorrect”,[55] the Member could potentially have misconstrued the statement, given Dr New’s references to pre-existing shoulder problems and pathology. The appellant submits that the Member erred in failing to give adequate weight to the opinion of Dr New.
[55] Reasons, [40].
The respondent’s submissions
The respondent refers to the appellant’s submission that the reasons provided by Dr Kuo were adequate to reach his concluded opinion and to the appellant’s recitation of the evidence that supports the argument in favour of accepting Dr Kuo’s opinion. The respondent says that the appellant took the same approach in respect of his argument that Dr New’s opinion should have been accepted.
The respondent submits that the appellant asserts that the evidence justified a different outcome. The respondent contends that, even if one embarked upon the task of reviewing the evidence, the conclusions reached by the Member in respect of the evidence of both medical experts were open to him on the evidence and, even if another decision-maker might have arrived at a different conclusion, that does not show error on the part of this Member. The respondent relies upon the Presidential authorities of Raulston v Toll Pty Ltd[56] and Mars Australia Pty Limited v Knight.[57] The respondent quotes from BGV v Waverley Council,[58] in which Snell DP observed that it is not necessary for the Member to refer to every piece of evidence, the required extent and content of the reasons will depend upon the issues in each case, and the reasons should be read as a whole.
[56] [2011] NSWWCCPD 25 (Raulston).
[57] [2024] NSWPICPD 78 (Mars).
[58] [2024] NSWPICPD 2.
The respondent reiterates that there was no error in the manner in which the Member dealt with the appellant’s submissions, but if there was, the respondent relies on its submissions made at arbitration about that evidence.
As to Ground Three
The appellant’s submissions
The appellant submits that the Member erred by:
(a) mischaracterising the purported delay in reporting the shoulder symptoms to Dr Moss;
(b) failing to infer that the reference to the left trapezius, which was reported two weeks after the injury, was likely to be related to or a reference to the left shoulder, when there were four weekend days and three public holidays in that period;
(c) finding that the delay in reporting the left shoulder symptoms was “not an inconsiderable delay”, and
(d) finding an inconsistency between the appellant’s statement and the appellant’s omission to complain of left shoulder symptoms at the first consultation.
The appellant submits that, if there was a failure to report the injury to the left shoulder, such a failure should not necessarily give rise to the drawing of an inference that there was no issue with the left shoulder, when there were other issues that were reported and noted. The appellant points out that the left trapezius issue was noted within 14 days (which included weekends and public holidays) and the left shoulder symptoms were reported some 7 days thereafter. The appellant asserts that, in the context of there being no other intervening injuries, the absence of report of left shoulder symptoms should not be considered “significant” and the delay should not be considered “not inconsiderable.”
The appellant refers to the Member’s finding that the appellant’s evidence was unreliable and was afforded no weight. The appellant concedes that there were inconsistencies as to precisely when the appellant felt left shoulder pain, and there was lack of clarity in the appellant’s statement evidence as to precisely when it was that he complained of the shoulder injury to Dr Moss, as well as when the clinical notes first referred to the shoulder symptoms. The appellant asserts that, nonetheless, a finding of injury should be made regardless of whether the left shoulder pain arose immediately (which was the appellant’s evidence) or whether it gradually developed following the injury. The appellant refers to the fact that his evidence was that he told his employer on the day of injury and also complained of numerous other injuries.
The appellant submits that, in relation to the clinical notes, there is a substantial body of authority to say that clinical notes should be treated with caution. The appellant quotes from Saqir v ISS Property Services Pty Ltd,[59] Winter v NSW Police Force[60] and Mason v Demasi[61] as authorities for that proposition.
[59] [2022] NSWPIC 454.
[60] [2010] NSWWCCPD 12.
[61] [2009] NSWCA 227.
The respondent’s submissions
The respondent submits that the delay in the appellant reporting his left shoulder symptoms was not the sole reason why the appellant’s claim failed. The respondent submits that the Member merely took that factor into account when considering the body of the evidence before him. The respondent says that that approach was reasonable, and the Member gave consideration to the authorities relied upon by the appellant.
The respondent contends that the submissions made by the appellant in the appeal are again contrary to the manner in which the case was conducted before the Member, as recorded in the transcript. The respondent submits that, in any event, the Member’s reasons from [57] to [60] are relevant and show that there was no error. The respondent adds that if the Member was wrong in taking into account the delay, then that, of itself, was not material to the outcome of the matter and so the Member’s conclusions should not be disturbed on appeal. The respondent reproduces those paragraphs of the Member’s reasons, in which the Member concluded that:
(a) the appellant’s evidence was irreconcilable with the other evidence and was unreliable;
(b) the medical expert evidence was not of assistance in determining the extent to which the pre-existing condition contributed to the pathology in the left shoulder and was of no assistance in determining the contribution from either the earlier event or the 2023 event to the left shoulder symptoms, and
(c) the medical evidence did not address the critical issues in the case, so that he was unable to be satisfied that there was a sudden and ascertainable or dramatic physiological change or disturbance in the appellant’s left shoulder on 21 December 2023.
The respondent addresses the four particulars of error relied upon by the appellant as follows:
(a) the Member’s finding in respect of the delay in reporting was a factual finding which was open to him and not indicative of error, thus it is not reviewable on appeal;
(b) it would have been “mere conjecture”[62] on the part of the Member to find that a medical expert’s reference to the trapezius was actually a reference to the left shoulder where there was no medical evidence that embraced that hypothesis. The respondent says that, had the Member proceeded to draw that inference, he would have been in error;
(c) the reference to the Member’s expression that there was not an inconsiderable delay should be read in the context of the claim made by the appellant that his shoulder was the major issue of concern arising from the incident. The respondent says that the Member was reasoning that if the shoulder was indeed the major issue, not reporting the symptoms to Dr Moss until two or three weeks later was not an inconsiderable time, and
(d) at paragraph [58] of the reasons, the Member expressed concern about the reporting of the onset of those symptoms to other experts. The respondent submits that the appellant has not mentioned those inconsistencies.
As to Ground Four
[62] Respondent’s submissions, [24(b)].
The appellant’s submissions
The appellant refers to the Member’s reasons from paragraphs [59] to [61], in which the Member dealt with the historical evidence of the appellant’s left shoulder pain and symptoms prior to 21 December 2023. The appellant concedes that such evidence suggests that the appellant had left shoulder symptoms and pathology from April 2019 and from 4 April 2021. The appellant also points to the 2022 report provided by Dr New which included reference to shoulder symptoms. The appellant submits, however, that there does not appear to be evidence that the appellant’s left shoulder was symptomatic immediately prior to the incident on 21 December 2023.
The appellant asserts that the Member also failed to give regard to the appellant’s own statement evidence, where he states that after the injury on 4 April 2021, he experienced “brief and minor shoulder pain” which resolved soon after the injury, making him able to return to full-time work without any pain until his most recent workplace injury.
The appellant submits that the Member was required to determine whether the appellant suffered an injury within the meaning of s 4 of the 1987 Act on 21 December 2023. The appellant says that his evidence was that he was not experiencing left shoulder symptoms at the time of that injury. The appellant asserts that the Member gave no regard to that evidence and made no finding in relation to it. The appellant submits that consideration should have been given to that evidence “in conjunction with arguments raised in” Ground One.[63]
[63] Appellant’s submissions, [77].
The appellant submits that, at paragraph [24] of the Member’s reasons, the Member appears to make a finding in relation to the report of Dr Metri when he observed that the report was “compelling evidence” that the appellant had numerous “not insignificant problems” with his left shoulder before the incident on 21 December 2023. The appellant asserts that “the use of the word ‘problems’ is both unwarranted and not consistent with the evidence.”[64] The appellant refers to his evidence that he was not experiencing any symptoms in his left shoulder prior to 21 December 2023. The appellant says that the radiological report from Dr Metri could show that there was some pre-existing pathology in the left shoulder but the Member’s reference to pre-existing ‘problems’ implies that there was potentially a closer temporal proximity between the pre-existing symptoms and the date of injury. The appellant submits that that notion is inconsistent with the evidence.
[64] Appellant’s submissions, [78].
The respondent’s submissions
The respondent submits that the appellant has misunderstood the purpose of the Member’s commentary in paragraphs [59] to [61]. The respondent asserts that the Member simply pointed out that it was not possible to determine that the appellant suffered a left shoulder injury because of the pre-existing pathology.
The respondent submits that the appellant’s claim ultimately failed because he failed to establish an injury as required by the 1987 Act, so that any error in the identified paragraphs of the Member’s reasons is not material to the outcome, and so the conclusion reached should not be disturbed.
As to Ground Five
The appellant’s submissions
The appellant submits that, for the reasons expressed in the preceding grounds of appeal, the Member erred by failing to afford weight to the evidence of Dr Kuo and Dr New in relation to the mechanism of injury. The appellant asserts that the Member should have found that the available evidence established that the incident on 21 December 2023 caused injury as defined in s 4 of the 1987 Act.
The respondent’s submissions
The respondent did not make further submissions in relation to this ground of appeal. Given that the appellant simply relies on his previous submissions asserting error on the part of the Member, which the respondent has answered, the respondent’s submissions provided in respect of the earlier grounds are sufficient.
THE RELIEF SOUGHT
The appellant seeks a finding that the appellant did suffer an injury to his left shoulder in his employment on 21 December 2023 and seeks an award in his favour in respect of his claim for s 60 expenses.
The respondent seeks to have the appeal dismissed.
CONSIDERATION
Ground One:
(a)the Member appears to erroneously use the word ‘condition’ in making an adverse finding in relation to s 4 of the 1987 Act, and
(b)in the context of the Member’s adverse finding in relation to injury pursuant to s 4(a) of the 1987 Act, the Member appears to have failed to consider s 4(b)(ii) of the 1987 Act
The appellant was given the opportunity to lodge further submissions on receipt of the transcript, which was made available to the parties on 9 January 2025, and in reply to the respondent’s submissions. The appellant did not avail himself of either of those opportunities. The respondent asserts that the appellant’s case presented to the Member was that the appellant had suffered an injury pursuant to s 4(a) of the 1987 Act and that it was never the appellant’s case that he suffered a disease injury within the meaning of s 4(b)(ii).
A review of the transcript of proceedings discloses that there was a discussion about the pleadings, following which it was agreed that the claim was in respect of a personal injury to the left shoulder, and it was conceded by the appellant that the issue for determination was correctly identified in a Direction made by the Member on 13 September 2024.[65] In that Direction, the Member set out the issues as follows:
“The issues in dispute are:
a. Whether, due to an incident on 21 December 2023, the [appellant] suffered personal injury to his left shoulder in the course of employment with the respondent: s 4 of the [1987 Act], and, if so;
b. whether the [appellant] is entitled to the cost of medical and other related treatment in respect of the workplace injury, specifically left shoulder arthroscopy rotator cuff and bicep repair: s 60 of the [1987 Act].”
[65] T13.3–23.
In the arbitration proceedings, the Member also read out the relevant passage of the appellant’s injury description set out in the pleadings as:
“The [appellant] during the course of his employment sustained a frank injury to his right hand, right wrist, cervical spine, left shoulder, lumbar spine, right hip, right knee and left knee.”[66]
[66] T14.15–18.
The Member reiterated that:
“It is in there and it’s clearly pleaded as a frank injury and the date of injury being the 21st of December, ’23 which was the date of the – I’ve got noted as the accident date.”[67]
[67] T14.24–27.
The appellant’s counsel responded, with:
“All right. It’s not a problem.”[68]
[68] T14.29.
The appellant’s counsel proceeded to address the Member in relation to the left shoulder injury having occurred in the incident on 21 December 2023, the identification of the injury as a full thickness supraspinatus rotator cuff tear as described in the MRI scan dated 17 April 2024, the appellant’s statement evidence and the medical evidence as to the occurrence of a personal injury.[69] The appellant’s counsel concluded with the following submission:
“That just strengthens the [appellant’s] case, in my submission, that the tear which is the basis for the need for surgery, in my submission, arose not at an earlier point in time through some degenerative process that Dr Rimmer describes. It didn’t show up at all in the 2022 [Dr] New report, it’s only subsequent to the motor collision, the subject of this claim that there is radiological evidence of tearing showing up in the MRI and the ultrasound, other diagnostic tests which I’ve taken you through.”[70]
[69] T15.31–25.8.
[70] T25.10–19.
The respondent replied to those submissions and the appellant took the opportunity to respond. The appellant did not depart from his position put forward in his substantive submissions.
In Metwally, the High Court made the following observation:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[71]
[71] Metwally, [7].
In Coulton, the plurality of the High Court said:
“The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.”[72]
[72] Coulton, [15].
On appeal, under this ground, the appellant submits that his evidence was that there were symptoms, even if they arose weeks after the event, that showed that he injured his shoulder in the incident on 21 December 2023 and that the appellant experienced symptoms after that event that were not present prior to the incident. It is difficult to see how those submissions assist the appellant in respect of the allegation that the Member erred in failing to consider s 4(b)(ii) of the 1987 Act.
Following a review of the pleadings, the documents lodged and the transcript of submissions, it is abundantly clear that in proceedings before the Member, the appellant solely relied upon s 4(a) of the 1987 Act and never raised an alternative submission that the injury may have been one that fell within the ambit of s 4(b) of the 1987 Act. Nor did the appellant respond to the respondent’s submissions in this appeal that an injury pursuant to s 4(b) was never raised before the Member. The Member cannot be said to have erred in failing to consider a submission never made. The appellant has not made an application to raise a new issue in this appeal. In those circumstances, the appellant’s allegation that the Member erred by failing to consider s 4(b)(ii) of the 1987 Act is not made out.
The appellant further complains that the Member fell into error in his determination under s 4 because he referred to the appellant’s “condition”. The appellant asserts that the Member erred because he was not required to determine that the incident on 21 December 2023 caused the appellant’s left shoulder condition. That submission is completely contrary to the submission clearly made to the Member that the appellant suffered a supraspinatus rotator cuff tear in the incident on that date.
The appellant says that it was unclear what the Member meant by the reference to a “condition” and that such a reference was “questionable.” The appellant does not extrapolate upon this allegation of error. In circumstances where the Member found against the appellant in respect of the allegation of injury on 21 December 2023, it is appropriate for the Member to refer to the pathology in the left shoulder as a “condition”. It is acceptable terminology adopted by the medical profession and is a useful neutral term to be adopted when an alleged “injury” is not made out.
The appellant has failed to show that the Member erred in either limb of this ground of appeal and the ground fails.
Ground Two: The Member failed to give adequate weight to the opinions of Dr Kuo and Dr New
The appellant asserts that the Member ought to have attributed weight to the evidence of Dr Kuo. He submits that Dr Kuo provided a plausible explanation that the left shoulder condition resulted from a “twist and turn” to the left and recorded that the appellant was asymptomatic prior to 21 December 2023.
The appellant asserts that the Member erred by placing too much weight on the fact that the appellant had a pre-existing condition and by failing to consider relevant evidence. The “relevant evidence” appears to be the appellant’s history provided to Dr Kuo that the appellant’s left shoulder was asymptomatic at the time of the 2023 injury and that Dr Moss included reference to the 2019 onset of symptoms in his letter of referral to Dr Kuo.
The respondent relies upon Raulston and Mars to say that the Member’s conclusions were “open to him” on the evidence and, even if another decision-maker might have arrived at a different conclusion, that does not show error on the part of this Member. The Court of Appeal in State of New South Wales v Culhana[73] has recently determined that Raulston and Mars were wrongly decided.
[73] [2025] NSWCA 157.
The question of whether it could be accepted that the appellant’s left shoulder was asymptomatic is dealt with under Ground Four of the appeal. The Member found that the appellant’s evidence, including that the left shoulder was asymptomatic prior to the injury on 21 December 2023, was unreliable and required objective corroboration, of which there was none. Thus, the Member did consider that “relevant evidence” but found it unreliable.
The appellant’s complaints as to the Member’s treatment of the evidence of Dr Kuo raises the fact that the referral sent to Dr Kuo by Dr Moss dated 9 February 2024 noted:
“+L shoulder xray +US= supraspinatous tear + subacromium bursitis note present on US 2019 ? aggravation or pre existing tear for orthopaedic management please”.[74]
[74] ARD, pp 380–381.
It appears that the appellant intends to say that as Dr Kuo must have been aware of the prior pathology, his opinion that a “twist and turn” could plausibly have caused an injury to the left shoulder was provided in a fair climate, and ought to have been accepted.
The Member particularly noted the referral letter, and that Dr Moss listed “left bursitis, subacromial” and “left supraspinatus tendon tear” as a past history for the appellant from 9 April 2019, which was the same past history provided in the referral letters to Dr Olschewski on two occasions in 2023, as well as in other referrals in 2023, all before the incident the subject of these proceedings. The Member observed that:
“The references in the clinical notes history to a tear in the [appellant’s] left supraspinatus tendon presumably relate to the report to Dr Moss from Dr James Metri, radiologist, dated 4 April 2019.”[75]
[75] Reasons, [23].
Before proceeding to consider the evidence of Dr Kuo, the Member reviewed the radiological report of Dr Metri dated 4 April 2019 and concluded that the “report is compelling evidence that the [appellant] had various, not insignificant, problems with his left shoulder before the incident on 21 December 2023.”[76]
[76] Reasons, [24].
The Member summarised the reports of Dr Kuo issued between 28 March 2024 and 5 August 2024, none of which referred to the findings recorded by Dr Metri in the 2019 radiological report or the appellant’s previous history of left shoulder injury and symptoms. The Member referred to Dr Kuo’s report dated 17 October 2024 and extracted those paragraphs where Dr Kuo added comments and opinion further to those made by him in his earlier reports. Importantly, those comments included that his opinion was “solely based on” the history provided by the appellant as to the mechanism of injury and that the appellant’s left shoulder pathology was asymptomatic prior to 21 December 2023. Of greater importance, Dr Kuo did not make mention of the 2021 injury or the prior radiological investigations that disclosed relevant pre-existing pathology of some significance. The Member took those matters into account in his reasoning process.
The Member reasoned that Dr Kuo’s reference to “medical reports from the GP that would indicate that the left shoulder has been mentioned as a source of pain and pathology” was vague and that it was unclear as to whether Dr Kuo included the referral from Dr Moss in those documents. The Member considered that if he did, it would indicate that Dr Kuo was aware of the pre-existing pathology, which showed that the appellant “experienced ‘pain and pathology’ prior to the 21 December 2023 incident.”[77] The Member reasoned that had Dr Kuo been aware of the prior history, symptoms and pathology, it could be expected that he would have considered it when forming his opinion. The Member concluded that:
“The opinion of Dr Kuo is lacking in substance in that proper reasoning has not been given for its conclusion and, in circumstances where it seems previous pathology has not been addressed, his opinion as to causation can be given limited weight.”[78]
[77] Reasons, [31].
[78] Reasons, [34].
The Member’s reasoning path and his conclusion reached in respect of the weight to be afforded to the evidence of Dr Kuo was consistent with that evidence and the shortcomings in that evidence were accurately identified by the Member. The appellant’s assertion that the Member was in error by failing to afford that evidence sufficient weight is not made out.
The appellant also asserts that the Member ought to have attributed weight to the evidence of Dr New.
In dealing with the evidence of Dr New, the Member noted that:
(a) Dr New made observations about the findings on the ultrasound dated 4 April 2019 but did not mention the presence of the partial thickness tear of the supraspinatus or the tendonitis noted as present in the ultrasound report, and
(b) Dr New took the history that the appellant had not experienced any significant shoulder problems prior to the 2023 incident.
The Member reasoned that:
(a) because Dr New did not mention the presence of the partial thickness tear of the supraspinatus or the tendonitis, it appeared that Dr New may not have been provided with a complete copy of the 2019 ultrasound report;
(b) Dr New provided no reasoning as to the cause of the left shoulder injury when he formed the view that there was a connection between the employment and the injuries sustained or why the employment was a substantial contributing factor to the injury, and
(c) the history recorded by Dr New that the appellant had not had significant prior problems in the left shoulder was inconsistent with Dr New’s previous report dated 22 September 2022 and, given the clear history of prior symptoms involving medical investigation, was “demonstrably incorrect.”[79]
[79] Reasons, [40].
The appellant submits that all that was required was that the appellant suffered an injury pursuant to s 4 of the 1987 Act. The appellant says that it was open to Dr New to form the view that the mechanism of injury described by the appellant could cause the left shoulder injury, the opinion expressed by Dr New was within his expertise, and the connection was a matter of common sense. It is difficult to see how the conclusion was a matter of common sense when the opinion lacked a consideration of both the significant prior pathology and the history of previous left shoulder symptoms. While the opinion on causation was within Dr New’s expertise, it was dependent upon whether the history provided to Dr New was reliable and the mechanism of injury required explanation.
In order to establish error on the part of the Member, it is not a matter of whether it was “open” for the Member to accept the evidence. It must be shown that the Member did not have a proper basis upon which to reject that evidence. If the inference sought to be drawn “is not a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”, the appellant’s case fails.[80] The Member identified the matters that weighed in favour of and against the evidence of Dr New and provided cogent reasons, consistent with that evidence, as to why he afforded that evidence little weight.
[80] Fuller-Lyons v New South Wales [2015] HCA 31, per French CJ, Bell, Gageler, Keane and Nettle JJ, [46].
The Member’s reasons, which were rational and consistent with the evidence, formed a proper basis upon which to conclude that the evidence of Dr Kuo and Dr New should be rejected. The appellant points to no proper reason to disturb those findings and Ground Two of the appeal fails.
Ground Three: The Member erred in the manner in which he considered the apparent delay in reporting the injury
The appellant submits that the Member erred by failing to infer that the reference to “left trapezius” symptoms in the clinical entry recorded at the second consultation with Dr Moss ought to be read as a reference to the left shoulder when in the next consultation, Dr Moss referred to symptoms in left “trapezius/shoulder”. The Member found against the appellant in respect of that submission, reasoning that:
“Notwithstanding that consultation was two weeks after the incident, Dr Moss referred to the trapezius and shoulder injuries separately in the certificates thereafter, which suggests they were separate problems.”[81]
[81] Reasons, [56].
The Member determined that, in any event, there remained a delay in reporting the left shoulder symptoms.
I accept the respondent’s submissions that it would have been “mere conjecture” on the part of the Member to find that a medical practitioner’s reference to the trapezius was actually a reference to the left shoulder. Notably, no direct evidence was adduced from Dr Moss. The Member’s reason for rejecting the assertion was that the shoulder and the trapezius were separately referred to in the Certificates of Capacity. Without any evidence from Dr Moss, who recorded the note, in my view the Member’s reasoning provided a valid reason for rejecting the appellant’s submission.
The appellant challenges the Member’s finding that there was “not inconsiderable delay” in the appellant reporting his left shoulder symptoms, regardless of whether the delay in reporting the left shoulder injury was two or three weeks after the incident. In the context of the appellant’s complaints that the left shoulder symptoms were the “major issue” arising from the incident, and the appellant’s statement evidence that he experienced “immediate” pain in his left shoulder, which was contrary to the history recorded by Dr New and Dr Rimmer, it was appropriate for the Member to consider the delay in reporting and to conclude that the delay was a factor mitigating against a finding that the appellant injured his left shoulder in the incident on 21 December 2023.
The appellant submits that there were no intervening injuries. There may not have been, however, the radiological investigations disclosed that the appellant had significant pre-injury left shoulder pathology so that it was indeed relevant as to whether the onset of symptoms occurred on the day of the incident or some time later. The appellant’s evidence was that he suffered symptoms in his left shoulder on the day of the alleged injury. I reject the appellant’s assertion that a finding of injury should be made regardless of whether the left shoulder pain arose immediately or whether it gradually developed following the injury.
The appellant has failed to put forward any persuasive submission that the Member erred by considering the delay in the appellant reporting the left shoulder symptoms. It follows that this ground of appeal is not made out and fails.
Ground Four: The Member failed to appropriately consider the prior left shoulder condition when the appellant was not experiencing symptoms directly prior to the incident on 21 December 2023
The appellant concedes that there is evidence that the appellant suffered left shoulder symptoms and pathology from 2019, on 4 April 2021 and when he was examined by Dr New in 2022, but asserts that there was no evidence that the left shoulder was symptomatic immediately prior to the incident on 21 December 2023. The appellant says that it was his evidence that his left shoulder was asymptomatic at the time of the 2023 injury and describes the symptoms arising from the 2021 injury as “brief” and “minor.”
The first difficulty with those submissions is that the Member determined that the appellant’s evidence was unreliable, a finding that has not been challenged in this appeal other than to assert that the Member ought to have accepted the appellant’s evidence. The Member observed that the appellant stated that he felt immediate pain in his left shoulder at the time of the impact, yet despite the appellant subsequently complaining to Dr New that the shoulder pain was the “major issue,” the appellant did not report the left shoulder symptoms until the third consultation after the incident with Dr Moss. The Member referred to the history provided by the appellant to Dr Rimmer that the left shoulder pain developed later and the history reported by Dr New that the left shoulder was not included in the list of injuries on the day of the incident. The Member found that the appellant’s statement evidence contradicted that evidence. The Member also considered that the historical evidence showed that there was left shoulder pain and injury prior to the incident, so that he was unable to determine the extent of the pre-existing condition or the contribution the pre-existing pathology made to the cause of the current symptomology. He concluded that he was unable to determine whether or not the appellant was suffering from shoulder pain immediately before the incident.
On the basis of the Member’s validly explained dissatisfaction with the available evidence, the evidence provided by the appellant that he was asymptomatic prior to the 2023 incident required some form of corroboration from other objective evidence.[82] The appellant’s description of the prior symptoms as “brief” and “minor” does not sit with Dr New’s observation that at the time of the examination in 2022, the appellant suffered from “chronic pain” associated with the left rotator cuff as a result of the injury on 4 April 2021. Nor does it fit with the note recorded by Dr Moss, the appellant’s long-term treating doctor, in the referral to Dr Kuo, in which it appears Dr Moss was querying whether the symptoms emanated from the pre-existing condition or resulted from new pathology.
[82] Devries v Australian National Railways Commission [1993] HCA 78; Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43.
The appellant criticises the Member for describing the appellant as having left shoulder “problems”. As submitted by the respondent in Ground One in respect of the Member’s use of the word “condition”, a court on review should not over-zealously examine a decision- maker’s reasons with an eye attuned to error.[83] The appellant clearly experienced previous “problems” in his left shoulder, particularly documented in the evidence from Dr New, and the various radiological investigations of the left shoulder undertaken undoubtedly because the appellant complained of left shoulder pain. I do not consider the Member’s reference to “problems” was anything other than a description of past issues with the left shoulder.
[83] Cervantes.
There was no objective evidence that the appellant’s left shoulder pathology was asymptomatic at any time prior to 21 December 2023, and thus, the Member was unable to conclude that it was. The Member clearly considered the available medical evidence, including the radiological evidence that showed significant pathology in the left shoulder prior to the pleaded injury. He reviewed all of the available evidence from the radiological reports and the medical reports before concluding that the evidence did not assist in determining whether the symptoms were caused by the incident on 21 December 2023, the earlier injury in 2021, the 2019 complaints, or a combination of those. The allegation that the Member failed to appropriately consider the prior left shoulder condition, which allegation was dependent upon it being accepted that the appellant’s left shoulder condition was asymptomatic immediately before the injury, is not made out and this ground of appeal fails.
Ground Five: The Member erred in indicating that the mechanism of injury did not cause an injury pursuant to s 4 of the 1987 Act
The appellant submits that, for the reasons expressed in the preceding grounds of appeal, the Member erred by failing to afford weight to the evidence of Dr Kuo and Dr New in relation to the mechanism of injury.
I have found that there was no error on the part of the Member in respect of his determination that the opinions of Dr Kuo and Dr New ought to be afforded little or no weight. The appellant relies upon his submissions made in respect of the preceding grounds of appeal, which I have determined were not persuasive. The appellant says that the Member “should have” found that the available evidence supported a finding that the incident on 21 December 2023 caused the injury to the left shoulder as defined by s 4 of the 1987 Act. In the absence of any persuasive submission to support the assertion that the Member “should have” found in the appellant’s favour, this ground of appeal is dismissed.
CONCLUSION
The appellant has failed to establish error on the part of the Member and the Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 6 December 2024 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
28 July 2025
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