Gunnedah Shire Council v Conlan - [2024] NSWPICPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Gunnedah Shire Council v Conlan [2024] NSWPICPD 14
APPELLANT:	Gunnedah Shire Council
RESPONDENT:	David Conlan
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W1319/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	1 March 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 16 May 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury arising as a result of the nature and conditions of employment – claim for medical expenses under section 60 of the Workers Compensation Act 1987 – whether a claim has been made or notified – definition of a claim under sections 4 and 289 of the Workplace Injury Management and Workers Compensation Act 1998 – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
BBW Lawyers
Respondent:
Mr C Tanner
Carroll & O'Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	16 May 2023

INTRODUCTION AND BACKGROUND

The respondent, Mr David Conlan, was employed by the appellant, Gunnedah Shire Council over the course of approximately 10 years, firstly as a concreter, then as a water truck driver, then again as a concreter.
On 3 April 2020, during his work as a concreter, the respondent attempted to move an item of formwork with a steel frame and a plywood base, back into a stack. He had removed smaller pieces of formwork without difficulty. In the process of lifting and pushing this particular piece of formwork overhead, he experienced sudden and severe pain in his shoulder.[1]
[1] Application to Resolve a Dispute (ARD), p 1.
The respondent reported the incident and consulted Dr Kelly, his general practitioner, who referred him to Dr Robert Sharp, orthopaedic surgeon. Over 12 months, he underwent conservative treatment by way of physiotherapy and various injections (cortisone, Synvisc and PRP) under the care of Dr Sharp, all of which provided little relief.[2] He was subsequently referred to Dr Minas Petrelis, orthopaedic surgeon, who, in reports of 23 and 29 September 2021,[3] recommended surgery. Dr Petrelis reported that the respondent had advanced left shoulder arthritis which had been present for years but was not symptomatic until 2020. Due to the long history of conservative treatment with limited improvement and an MRI and CT scan demonstrating “severe wear” with a B2 glenoid, Dr Petrelis was of the opinion that a total shoulder replacement was needed. The doctor said that “the type of work that he is doing and has done, has flared up his arthritis to a point where he now needs surgery”.[4]
[2] ARD, pp 29–49.
[3] ARD, pp 50–51.
[4] ARD, p 51.
At some point thereafter, a claim was lodged with StateCover Mutual Limited (StateCover) to cover the cost of the surgery.[5]
[5] Respondent’s statement, ARD, p 1. I remark that there is no specific claim form or correspondence making this claim in the evidence before me.
StateCover arranged for the respondent to be independently medically examined by Dr Richard Powell, orthopaedic surgeon, on 7 December 2021. In his report dated 9 February 2022, Dr Powell opined that the respondent’s current symptoms reflected longstanding pre-existing degenerative disease in the nature of advanced glenohumeral joint osteoarthritis, present prior to the incident on 3 April 2020. The incident on 3 April 2020 aggravated this, but the doctor believed such an aggravation would have settled, and proffered the opinion that the respondent’s employment was not the main contributing factor to any ongoing symptoms. Rather, the doctor said, the respondent’s symptoms reflected a long-standing degenerative disease process. The surgery recommended by Dr Petrelis was to address this and not a work injury.[6]
[6] Reply to Application to Resolve a Dispute (reply), pp 16–17.
With reliance on this report, StateCover issued a notice to the respondent in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 16 February 2022. It declined liability for the respondent’s claim, with the matters in dispute framed as follows:
“• Whether your employment with Gunnedah Shire Council is the main contributing factor to contracting a disease injury with your left shoulder. As a result you are no longer entitled to recover compensation for this disease injury. We rely upon section 4(b)(i) of the Workers Compensation Act 1987.
• Further your employment with Gunnedah Shire Council was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your pre-existing condition/disease injury affecting your left shoulder. We rely upon section 4(b)(i) of the Workers Compensation Act 1987.
• StateCover does not dispute that you suffered a frank incident on the 03/04/2020 which resulted in a temporary aggravation to your pre-existing disease injury in your left shoulder however this aggravation has now ceased.
• Whether any incapacity for work is related to your workplace compensable aggravation of a pre-existing condition on the 03/04/2020. We rely upon section 33 of the Workers Compensation Act 1987.
• Whether any medical treatment is reasonably necessary as a result of the aggravation of a pre-existing condition on the 03/04/2020. We rely upon section 60 of the Workers Compensation Act 1987.”[7] (emphasis added)
[7] Reply, p 2.
During proceedings before the Personal Injury Commission (the Commission), it was clarified that the reference to s 4(b)(i) in this dispute notice was incorrect and should have been reference to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) instead.[8]
[8] Conlan v Gunnedah Shire Council [2023] NSWPIC 226 (reasons), [13].
Prior to commencing proceedings, on 18 January 2023, the respondent’s solicitor wrote to the insurer seeking a review of its dispute pursuant to s 287A of the 1998 Act. In support of the application for review, the respondent served a medico-legal report of Dr J Brian Stephenson, orthopaedic surgeon, and claimed that the doctor had accepted “[a] relationship between the duties performed and the injury” and “[t]he proposed surgery being reasonably necessary by reference to the injury”.[9]
[9] ARD, p 9.
In the medico-legal report, dated 24 November 2022, Dr Stephenson recorded that the respondent’s duties put pressure and strain on his arms, but there was no significant pain or discomfort, nor a need for medical management, until 3 April 2020. The doctor was specifically questioned as to whether “the nature of [the respondent’s] employment and the heavy work associated with the employment caused or aggravated the level of underlying arthritic processes in the shoulder, even if it was not causing symptoms”. Dr Stephenson answered: “Yes, I would agree to that contention”. The doctor continued that the specific incident of 3 April 2020 involved the exertion of significant effort and strain causing sudden pain. According to the doctor, there was a direct relationship between the respondent’s condition and the injuries sustained in employment. He regarded the shoulder replacement surgery to be reasonably necessary and causally related to the work injury.[10]
[10] ARD, pp 19–22.
In response, StateCover maintained their dispute in a review notice issued pursuant to s 287A of the 1998 Act dated 1 February 2023.[11] This notice referred to the reasons set out in the initial s 78 notice. StateCover referred to Dr Stepheson’s opinion as indicating that the respondent had “developed pain and restricted movement in [the] left shoulder while at work on 3 April 2020 after lifting formwork for concreting”. StateCover preferred the evidence of Dr Powell over Dr Stephenson.
[11] Reply, pp 7–9.
The respondent commenced proceedings in the Commission, claiming the cost of the surgery. The ARD pleaded injury as arising on 3 April 2020 as a result of both “[t]rauma to the left shoulder arising out of the nature and conditions of the [respondent’s] employment putting pressure and strain on his shoulder in the performance of his duties going back approximately one decade” and “[t]rauma to the left shoulder arising out of a specific lifting incident at the depot”.[12]
[12] ARD, pp 6–7 of 8.
The matter was heard by Member Batchelor on 9 May 2023. The issue for determination was whether the left shoulder replacement surgery recommended by Dr Petrelis was reasonably necessary as a result of the injury sustained by the respondent on 3 April 2020 and/or the ‘nature and conditions’ of the respondent’s work as a concreter.[13]
[13] Reasons, [7].
The Member accepted that the ‘nature and conditions’ of the respondent’s employment were causative of an injury, finding a disease injury pursuant to s 4(b) of the 1987 Act. Surgery was held to be reasonably necessary pursuant to s 60 of the 1987 Act.
On appeal, the appellant alleges that the Member was wrong in making this determination, specifically with respect to the findings around the ‘nature and conditions’ of employment.

THE MEMBER’S REASONS

At arbitration, a preliminary issue arose as to whether the ‘nature and conditions’ claim had previously been notified. The appellant argued that the respondent could not rely on the claim for ‘nature and conditions’ of employment causing injury, as it had not been made, citing Rail Services Australia v Dimovski & Anor.[14] It argued that the respondent could only rely on the frank injury of 3 April 2020 in support of his claim. It said that the Commission did not have any evidence before it to attribute the respondent’s injury to the ‘nature and conditions’ of employment, as the respondent had not supplied sufficient details of his work as a concreter.[15]
[14] [2004] NSWCA 267 (Dimovski).
[15] Reasons, [8]–[9].
It was the respondent’s case that the injury could be a frank injury as defined by s 4(a) as well as an aggravation of a degenerative condition pursuant to s 4(b)(ii) of the 1987 Act. Either way, the date of injury remained the same. The respondent submitted that Dr Stephenson agreed that the nature of the respondent’s work caused or aggravated the underlying condition, even if it was not the cause of the symptoms. This report was in the appellant’s possession prior to proceedings, and the respondent’s statement referred to the heavy nature of his work.[16]
[16] Reasons, [10]–[12].
The Member accepted the respondent’s reasoning, and allowed him to present his case as pleaded in the ARD with reference to ‘nature and conditions’ and a frank incident.[17]
[17] Reasons, [13]–[14].
Regarding the primary issues in dispute, the respondent argued that Dr Powell had conceded an injury of 3 April 2020 and, having remained symptomatic, it was difficult to accept that the effects of the incident of 3 April 2020 had ceased without any certainty, clarity, or medical evidence as to when this occurred. The respondent argued that the opinions of Dr Sharp, Dr Petrelis and Dr Stephenson should be accepted. There was no dispute as to the aggravation occurring on 3 April 2020, and there should also be a finding that his condition was attributable to a decade of heavy work, which was not apparent until 3 April 2020. The surgery was reasonably necessary for his work injury.[18] The respondent submitted that there was no evidence to dispute the heavy nature of his employment, and, with regard to the Commission’s knowledge as a specialist tribunal, the Commission could accept the evidence that his work as a concreter was heavy.[19]
[18] Reasons, [20]–[29].
[19] Reasons, [41]–[42].
The appellant submitted that the respondent’s case was infected with “post-hoc logical fallacy” and the way in which the case had been pleaded had reversed the onus of proof. The onus remained on the respondent to show that surgery was reasonably necessary as a result of the work injury he suffered. In respect of the alleged ‘nature and conditions’ claim, there was insufficient detail in the respondent’s statement dated 12 February 2023 about the nature of his work, the length of time the respondent performed each role or the dimensions of the formwork he was handling. It argued that Dr Stephenson’s agreement with the contention put to him (see [9] above) was not clear, and that Dr Petrelis was required to evaluate the pre-existing arthritic condition (as revealed in the radiology) and whether it had a material contribution to the need for surgery. The appellant reiterated its position that the symptoms related to the aggravation of the respondent’s condition due to the incident on 3 April 2020 have subsided and do not constitute the material contribution to the undisputed need for surgery.[20]
[20] Reasons, [30]–[40].
In determining the injury allegedly arising from the ‘nature and conditions’ of the respondent’s employment, the Member accepted the respondent’s statement dated 12 February 2023, which detailed his work as a concreter as being of a heavy nature, putting pressure on his neck and shoulders. The Member referred to the clinical notes of Dr Kelly and reports of Dr Sharp, as well as the opinion of Dr Petrelis that the respondent’s arthritis has flared up to a point where he is in need of surgery due to his work.[21] Based on this, and acknowledging a cautionary approach to clinical notes (per Davis v Council of the City of Wagga Wagga[22]) as well as the Commission’s expertise as a specialist tribunal, the Member was satisfied that the respondent was engaged in “heavy physical work over the 10 years he was employed by the [appellant]”, specifically as a concreter.[23]
[21] Reasons, [43]–[48].
[22] [2004] NSWCA 34 (Davis).
[23] Reasons, [49]–[50].
The Member accepted the opinion of Dr Stephenson that there was a direct relationship between the respondent’s condition and the “injuries sustained in employment”. The Member rejected the proposition that the respondent had “produced insufficient evidence to show that the heavy nature of his work over the period he worked for the [appellant] was of such a nature to aggravate the degenerative condition in his left shoulder … the so called ‘nature and conditions’, describing a series of micro traumata to the shoulder in the course of employment, were sufficient to aggravate the condition”.[24]
[24] Reasons, [51]–[52].
The Member then turned to the question of whether the aggravation had ceased, noting that it was the appellant’s claim that the aggravation caused by the incident on 3 April 2020 had ceased by the time of Dr Powell’s examination, and noting that based on his findings as to ‘nature and conditions’, he was also tasked with determining whether the aggravation caused by the ‘nature and conditions’ of employment had ceased.[25]
[25] Reasons, [53].
The Member acknowledged the treatment the respondent received under the care of Dr Sharp, including cortisone injections, Synvisc injections, PRP injections and physiotherapy, between May 2020 and 30 April 2021, and that Dr Powell noted no significant change to symptoms despite this prolonged period of treatment.[26]
[26] Reasons, [53]–[55].
The Member referred to Diab v NRMA Ltd[27] and Murphy v Allity Management Services Pty Ltd[28] in respect of s 60 of the 1987 Act which required the respondent to establish that the injury sustained materially contributed to the reasonable necessity of the treatment proposed. It was clear from the evidence of Dr Kelly, Dr Sharp and Dr Petrelis that the respondent suffered significantly since 3 April 2020, with no question as to whether his presentation was genuine. Both Drs Sharp and Petrelis attributed the need for surgery to the frank injury on 3 April 2020.[29]
[27] [2014] NSWWCCPD 72.
[28] [2015] NSWWCCPD 49, [58].
[29] Reasons, [58]–[60].
The Member held that the need for surgery was also attributed to injury sustained as a result of the ‘nature and conditions’ of employment with a date of injury of 3 April 2020.[30]
[30] Reasons, [61].
The Member accepted the opinions of Dr Stephenson and the treating doctors over that of Dr Powell. Having regard to the evidence as a whole, the Member rejected the proposition that the respondent’s on-going symptoms were due to pre-existing degenerative changes rather than “the sequelae” of injury to the shoulder arising out of, or in the course of employment. He thus determined that the injury of 3 April 2020 materially contributed to the reasonable necessity of the surgery.[31]
[31] Reasons, [62]–[64].
The Member made the following orders in the Certificate of Determination issued on 16 May 2023:
“The Commission determines:
1. The left shoulder surgery claimed by the [respondent] is reasonably necessary as a result of injury on 3 April 2020 and/or injury deemed to have been suffered pursuant to s 4(b) of the Workers Compensation Act 1987.
2. The [appellant] is to pay the costs of and incidental to the surgery to the [respondent’s] left shoulder proposed by Dr Petrelis.”

GROUNDS OF APPEAL

The appellant relies on the following three grounds of appeal:
GROUND ONE – The Member acted ultra vires in purporting to resolve a matter which was not before the Commission as a result of misapplication of legal principles regarding ‘injury’.
GROUND TWO – The Member failed to enter an award for the appellant pursuant to s 60 of the 1987 Act by reference to the accepted frank injury claim.
GROUND THREE – The Member failed to give adequate reasons to support a finding that there was a ‘nature and conditions’ injury and in his application of the authorities such as Dimovski.

ON THE PAPERS

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

THRESHOLD MATTERS

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

DISCUSSION

As to Ground One

The appellant says there is no cause of action in workers compensation law, rather the workers compensation legislation creates a number of rights.[32] The appellant submits that:
“The right to pursue those rights (that is, the adjective or jurisdictional right to seek an award of compensation) is construed by reference to ss 288 to 289A of the Workplace Injury Management and Workers Compensation Act 1998. The effect of those provisions is that a claim must be made and then disputed (or there be a failure to determine a claim).”[33]
[32] Appellant’s submissions, [12], citing Ritson v State of New South Wales (No.1) [2022] NSWDC 345.
[33] Appellant’s submissions, [13].
The appellant says that the worker never lodged a nature and conditions claim and absent such a claim, it could not be disputed and could not be heard by the Commission. The appellant asserts that the claim had always proceeded on “the basis of the factual minutiae of the events on 3 April 2020”.[34]
[34] Appellant’s submissions, [14].
The appellant then continues:
“The description of the mechanism of injury as claimed is of a sudden and identifiable pathological change. One should not proceed to apply the disease provisions (ss 4(b), 15/16) unless there is no identifiable pathological change in this sense. To do so would be contrary to established principles. In Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 the Court observed that the terms ‘disease’ and ‘personal injury’ in s 4 are not ‘mutually exclusive’. Also, the High Court confirmed in Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 at [39] that if ‘something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word’. In that same matter, Gleeson CJ and Kirby J at [40] said the following (with emphasis added):
‘The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions …’
The case perhaps most often referred to in this jurisdiction on this issue is Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 in which the Court of Appeal held that if an injury can be characterised as a frank injury, then it does not fall within section 16(1)(b) (and by logical extension, ditto for s 4(b) and 15). In this matter, Hodgson JA stated the following at [68] with emphasis added:
‘If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened’.”[35] (emphasis by appellant)
[35] Appellant’s submissions, [14].

In reply, the respondent says that there is no dispute about the injury to the respondent’s left shoulder on 3 April 2020. The respondent details aspects of the medical evidence[36] before submitting as follows:
“In the circumstances, the respondent’s case that his [left] shoulder condition resulted from the heavy work associated with his employment, over time, as well as the episode of injury on 3 April 2020, was readily apparent to the appellant.”[37]
[36] Respondent’s submissions, [12]–[15].
[37] Respondent’s submissions, [16].
The respondent relies upon the terms of the s 78 dispute notice, (see [6] above), in support of a submission that the dispute was about whether the acknowledged aggravation of the underlying condition in the respondent’s left shoulder caused by the 3 April 2020 incident had ceased. The respondent submits:
“The appellant specifically raised disputes as to a gradual process of injury, distinct from the accepted frank incident, and the suggestion, made at the arbitration and persisted with on appeal, that the Commission had no jurisdiction in relation [to] the former, is unfounded and contradicted by its own Dispute Notice.”[38]
[38] Respondent’s submissions, [24].

Some principles about disputes and the practice in the Commission

The appellant quite correctly points to ss 288–289A of the 1998 Act as governing how disputes may be referred to the Commission. The basis of the Commission’s power to determine a matter rests upon it being notified and disputed. In Department of Corrective Services v Bowditch,[39] Deputy President Roche said in relation to the then s 74 notice that it “should clearly and plainly identify on its face the reason liability is disputed and the issues relevant to the decision. A worker should not be forced to wade through attachments to the notice in an attempt to uncover the real issues. The issues must be clearly and succinctly stated in the notice itself.”[40] (emphasis in original)
[39] [2007] NSWWCCPD 244 (Bowditch).
[40] Bowditch, [37].
Whilst s 74 notices are no longer in force, the current notice is under s 78 of the 1998 Act, Bowditch continues to apply with equal effect to the current s 78 dispute notice regime.
If a dispute is not previously notified, the Commission may hear such a matter if it is of the opinion that “it is in the interests of justice to do so.”[41]
[41] Section 289A(4) of the 1998 Act.
While the word “dispute” is nowhere defined, whether a claim has been notified and disputed is a matter for construction of usually the s 78 dispute notice, or if no such notice was issued how the material frames the matter(s) claimed, in an individual case and by reference to the statutory mandate as to how disputes are dealt with in the Commission. Section 289A(2) of the 1998 Act describes the circumstances where a matter is taken to have been previously notified as disputed.
In terms of the Commission’s procedure, this is set out in s 43 of the 2020 Act, the terms of which are well known and I do not repeat them here. The Commission is not bound by strict pleadings[42] and the objects[43] and the guiding principle[44] both direct attention to the “just, quick and cost effective resolution of the real issues in the proceedings.”[45] Additionally, s 42(4) provides as follows:
“In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.”
[42] Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2, [41].
[43] Section 3(c) of the 2020 Act.
[44] Section 42 of the 2020 Act.
[45] Section 42(1) of the 2020 Act.
I would remark however that notwithstanding the Commission’s flexibility in how it might deal with an individual case, this is always subject to observance of the rules of procedural fairness.[46]
[46] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds), [90]–[91], [95], per McColl JA.

Consideration

This matter involves a claim for the cost of left shoulder surgery pursuant to s 60 of the 1987 Act. Section 289(2) of the 1998 Act provides that:
“(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.”
“Medical expenses compensation” in s 4 of the 1998 Act is defined as being “compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the 1987 Act.” The claim in this matter under s 60 of the 1987 Act sits within Division 3 of Part 3 of the 1987 Act and hence s 289(2) of the 1998 Act applies.
For the sake of completeness, the word “claim” in s 289(2) is defined in s 4 of the 1998 Act as being “a claim for compensation or work injury damages that a person has made or is entitled to make”. “Compensation” is defined in the same section as “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. The “Workers Compensation Acts” are defined later in s 4 as being the 1998 and 1987 Acts.
In Edmonds, McColl JA at [68] said as follows:
“The Deputy President observed (at [11]) ‘that proceedings in the Commission are not governed by ‘formal pleadings’...’. She referred to the decision in Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 in which she had remarked (at [24]–[25]) that the ‘issues before the Commission could be identified both in the ARD and Reply, as well as during the first telephone conference with the Arbitrator and in the conciliation and arbitration hearing’. She accepted, however (at [12]), that the ‘issues in dispute must be referable to the ‘claim’ that was made by the worker’.”[47] (emphasis added)
[47] Edmonds, [68].
A “claim”, as defined in s 4 of the 1998 Act, was made by the respondent in this matter and was for compensation for the cost of surgery pursuant to s 60 of the 1987 Act. The appellant, in the s 78 dispute notice I have set out at some length above, disputed that claim. This decision was affirmed after an application for review which provided further information. The s 78 dispute notice is, consistent with the highlighted section from Edmonds (above), referable to the s 60 claim made by the respondent. The respondent then commenced these proceedings, describing the dispute being pursued in the ARD, which details I have also set out above.
At the hearing before the Member, counsel for the appellant submitted as follows:
“Member, my understanding is that the worker wishes to contend for a compensable disease injury. [The appellant’s] position is that [the respondent] has claimed a frank injury occurring on 3 April 2020 which is the subject of a section 78 notice which is the jurisdictional gateway to ventilate whatever rights he may have for that matter.
If he now wishes to also claim a disease process injury, he would have needed to have claimed that and had that denied in order for there to be jurisdiction. So the [appellant] is acting reasonably and I’ll explain why in a moment but even if the [appellant] were not acting reasonably that will not confer the jurisdiction on the Commission which it would not otherwise have. The conduct of the parties cannot give a tribunal jurisdiction which is not conferred by statute.”[48]
[48] Transcript of proceedings of 9 May 2023 (T), T 2.7–22.
Pausing here, I do not accept this submission. The s 78 dispute notice, set out at [6] above, clearly disputed the “pre-existing condition/disease injury affecting your left shoulder”.
As can be seen in terms of the submission before the Member, the “claim” referred to by the appellant was the “disease injury process”, the appellant arguing that this had to have been made and denied for the Commission to have jurisdiction. The Member was correct not to accept that submission. A claim (as defined) is for compensation and that was made. The issue that the appellant took related to the mechanism of the injury (disease injury process), which is an entirely separate concept from a claim, which as I note above the appellant did dispute.
This same argument is pursued on this appeal although with different terminology regarding the mechanism of injury. The appellant submits that a claim must be made and disputed,[49] which statement is obviously correct. But the appellant then proceeds to state that “[i]n this matter, the worker never lodged a ‘nature and conditions’ claim. In the absence of such a claim, no such claim could be disputed, much less determined by the Commission.”[50] The phrase used before the Member was “disease injury claim” rather than “nature and conditions”, but for the purposes of dealing with this ground, nothing turns on that difference.
[49] Appellant’s submissions, [13].
[50] Appellant’s submissions, [14].
The definition of a claim does not encompass the mechanism of the injury, whether by way of nature and conditions or disease. The “claim” is for compensation, which the appellant then may dispute and set out how the denial is justified, in the way described in Bowditch. It is a matter for the appellant to dispute a claim on a basis of its choosing – it is not for the respondent to anticipate what the objection may be and reference that in the claim.
Indeed the form in which a claim must be made is specified in the Workers Compensation Guidelines (Guidelines) dated 1 March 2021. A claim must be made in accordance with the Guidelines.[51] Section 260(2) of the 1998 Act sets out the provisions that the Guidelines might make. At Part 3 of the Guidelines, there appears the requirements for “Making a Claim”. Part 3.1 specifies the “Minimum requirements for a claim” and the closest or most relevant provision to this argument reads as follows: “description of the injury and how it happened.”
[51] Section 260(1) of the 1998 Act.
Whilst I do not have the benefit of any claim form before me, nor any correspondence which stipulates the exact terms of how the claim was made on the appellant before it was initially disputed, as I have said above, the claim in these proceedings was a s 60 claim for surgery in relation to a left shoulder injury, presumably made in accordance with the reports of Dr Petrelis. This initial claim was disputed by the appellant[52] for the reasons set out in the s 78 notice, and the premise that Dr Powell believed that any work-related aggravation had ceased, and the symptoms exhibited were due to an underlying arthritic disease. The respondent’s solicitors then sought a review of that decision[53] and supplied a copy of the report of Dr Stephenson dated 24 November 2022, submitting that the doctor found a relationship between the respondent’s work and his condition.[54] Dr Stephenson’s opinion describes the nature of the respondent’s work[55] before agreeing with a proposition that the respondent’s history of heavy work caused or aggravated an underlying arthritic process.[56] On review, the appellant maintained its denial of liability on the same basis as the initial s 78 notice.[57] Clearly the respondent had made a claim and in this review request, provided evidence to support the proposition before the Commission that his condition was caused and/or aggravated by the heavy nature of his work. The dispute is thus constituted by the contents of this entire exchange. The issue of the heavy nature of the respondent’s employment with the appellant as a concreter was therefore available to be the subject of proceedings in the Commission.
[52] ARD, p 3.
[53] ARD, p 9.
[54] ARD, p 15.
[55] “Background” at ARD, p 19.
[56] ARD, p 19.
[57] ARD, p 10.
The appellant’s complaint is that the precise phrase “nature and conditions” was not previously notified. I do not accept this submission. A fair reading of Dr Stephenson’s report raises the heavy nature of the respondent’s work prior to 3 April 2020. This phrase “nature and conditions” is but a further particularisation of how the injury came about. The claim and the dispute notice are not to be confused with or have imposed upon them a process akin to strict pleadings in the common law courts. The nature of the heavy work performed by the respondent and the contribution to his injury as described by Dr Stephenson, was a known issue, and the claim for surgery arising from injury was denied. The precise aetiology of the condition, whether nature and conditions or an aggravation of an underlying arthritic condition, and its contribution to the requirement for surgery, was a matter for the Commission to decide, consistent with its statutory mandate.
I would also make this remark. Had the claim in the ARD about the relationship of the prior heavy work performed by the respondent been a new issue, doubtless an argument about procedural fairness could have been raised. But this point was not taken, presumably as the issue had been raised in terms in the application for review. These are precisely the circumstances adverted to in s 289A(2) of the 1998 Act.
Contrary to the appellant’s submission, a claim was made and disputed. The Commission was appropriately seized of power to hear the application. The Member was not in error to determine the application as he did.
Ground One is dismissed.

As to Ground Two

The appellant argues, wrongly given what I have found with respect to Ground One, that as there was no nature and conditions claim before the Commission, the Member was obliged to determine whether the frank injury materially contributed to the need for surgery. This the Member never did as he made the nature and conditions finding.
The appellant asserts that there was an error of law, namely a failure to determine the correct issue, and an error of fact, that is failing to find an absence of material contribution.
The appellant says that the asserted error of law is made out on the basis of the submissions in respect to Ground One. The next step, the appellant submits, is that having found the ‘nature and conditions’ made out at reasons [52], the Member was obliged to determine “whether that injury had caused pathology that had ceased”.[58]
[58] Appellant’s submissions, [16].
The appellant states that the factual finding that should have been made involved the following examination:
“(a)    The worker had insufficiently deposed to the detail of any long-term ‘nature and conditions’ of work, much less to the extent necessary to persuade the Commission that this was work of a traumatic nature such as to cause injury slowly across time. The worker’s statement is at ARD attachments p 1. Paragraph 3 confirms that he had no specific memory of pain in the left shoulder before 3 April 2020. Although he does refer to his work being of a ‘heavy nature’, he simultaneously excludes any observed relationship between that and symptoms in the form of pain. This would tend to suggest an absence of long-term traumatic injury. He also gives essentially no detail to what is meant by heavy work (unknown factors include how heavy, how often the work was heavy, whether he was given assistance [by] co-workers, whether he made mechanical aids, whether he had rest breaks and so on).
(b)     The worker’s IME (Dr Stephenson report dated 22 November 2022, ARD page 15) emphasises the facts giving rise to the frank injury. He says ‘On date of injury, as a council worker of Gunnedah area; on 03 April 2020, he was lifting a 6 x 2 formwork for concreting.’ This is, of course, is [sic] correct. He also says ‘The specific incident of 03 April 2020 involved an incident where significant effort and strain was being exerted and he suddenly developed sudden pain in the left shoulder.’. Further he says that the ‘injury relates to the movement/lifting of the formwork’ (emphasis added to demonstrate the significance of the events of the day). The fact that the doctor goes on to describe the dimensions of the particular formwork suggests that it is the events of the day in question, not a long-term disease, which are relevantly causative. He says ‘At the time he was injured, he was still trying to elevate the formwork …’
(c)     Comment by any medical practitioner could only be as persuasive as otherwise proven facts permit any such opinion to be upheld. Further, the ultimate question was whether the Member, having properly directed himself as to the evidence, could feel a sense of ‘actual persuasion’ that there was a nature and conditions injury. It is submitted that a reasonable decision maker could not so feel, in the context of the dearth of evidence. It is not sufficient that there be a fleeting reference to heavy work as some sort of check list approach to considering evidence. Such evidence had to be both detailed and persuasive and it was not. In a civil context, ‘actual persuasion’ must be felt per Briginshaw v Briginshaw (1938) 60 CLR 336 which discourages, for example, mathematic approaches to probability. The Appellant does not rely upon [Briginshaw] for the purpose that case is usually (and wrongly) deployed, namely to contend for an intermediate standard of proof between civil and criminal cases. See also Palasty v Lendlease Building Pty Limited [2021] NSWPICPD 19 regarding the use of medical opinion where there is a lack of proven underlying facts.”[59]
[59] Appellant’s submissions, [16(a)–(c)].
The appellant states that even on the respondent’s own lay and medical evidence, the evidence was that he had suffered a frank injury only.[60]
[60] Appellant’s submissions, [17].
The appellant then points to the following aspects of the evidence that was before the Member:
“(a)    Dr Sharp (ARD 30) in his 14 May 2020 report notes that there ‘aren’t any obvious large tears’. Therefore, the pathological change on the date in question, whilst identifiable, was not significant.
(b)     On any view there was pre-existing changes. However, as Dr Petrelis notes in his 23 September 2021 report (ARD 50), no symptoms materialised up until March 2020. That is, no general nature and conditions was troubling in this regard. This gels with the worker’s own account.
(c)     Dr Powell’s 9 February 2022 report (Reply 12) concedes continued symptoms in the shoulder. However, as per Dr Sharp – the accident related pathology appears to be limited. Therefore, it is logical to assume, and confirmed by Dr Powell, that the current problems do not relate to that traumatic process. In other words, the effects of any work injury have ceased. The previous incident alluded to in 2017 resulted in no time off work or investigation and would have to be considered de minimis. In any event, that matter does not appear to relate to the ‘heavy’ work deposed to by the worker.”[61]
[61] Appellant’s submissions, [18(a)–(c)].
In reply the respondent submits that there was no dispute about the injury on 3 April 2020 and that the only issue requiring decision was limited to, as Dr Powell opined, whether the aggravation suffered on 3 April 2020 had ceased. The respondent says that the Member reviewed the treating specialist evidence stating:
“The Member noted that Dr Stephenson considered that the ‘need for surgery is causally related to the work injury, noting the continuing pain and discomfort following that injury to date and consequent restrictions’.
The Member, having considered the opinions of the respondent’s treating doctors, and Dr Stephenson, as well as Dr Powell’s opinion, proceeded to find, as was open to him, that the respondent’s ‘ongoing symptoms’ did not ‘reflect the extent of long-standing pre-existing degenerative disease’, but were ‘the sequelae of injury to the shoulder arising out of or in the course of employment with the [appellant]’.
The Member’s finding of continuing sequelae necessarily rejected the appellant’s case of cessation, as asserted by Dr Powell.”[62]
[62] Respondent’s submissions [31]–[33], citing reasons, [62]–[63].

Consideration

The error of law pursued under this ground depends upon a finding in favour of the appellant in Ground One. I have, for the reasons set out above, dismissed Ground One. The Member was, for the reasons I have expressed above, appropriately seized of the power to determine the nature and conditions issue. Having done so, there was no need to decide the issue in the way it is argued by the appellant in this ground. The error of law asserted has not been established.
I would remark however that the Member’s first order in the Certificate of Determination did in fact find injury on 3 April 2020, contrary to the assertion in this ground. The Member also found a deemed injury in the same order, but the essential assertion made by the appellant is wrong.
This aspect of Ground Two is dismissed.
I now turn to the asserted error of fact. The findings which the appellant takes issue with are those at reasons [52] and [53], I set these two paragraphs out in full:
“52. I do not therefore accept the [appellant’s] submission that the [respondent] has produced insufficient evidence to show that the heavy nature of his work over the period he worked for the [appellant] was of such a nature to aggravate the degenerative condition in his left shoulder from which he suffered. I find that the so called ‘nature and conditions’, describing a series of micro traumata to the shoulder in the course of employment, were sufficient to aggravate the condition.
Has the aggravation ceased?
53. The [appellant’s] case is that the aggravation to the degenerative condition in the left shoulder caused by the frank incident on 3 April 2020, based on the opinion of Dr Powell had ceased by the time of the doctor’s examination on 7 December 2021. In accordance with my finding in [52] above, there must also be a determination as to whether the aggravation to the shoulder caused by the nature and conditions of employment had ceased. In either event, the date of injury is the same.”
The appellant challenges the factual finding that the aggravation had not ceased and at paragraph [16(a)–(c)] of the appellant’s submissions (which I have set out above), the appellant describes the findings that ought to have been made. As is apparent from an examination of these three sub paragraphs, the appellant submits that there was a “dearth of evidence” to support the finding that the long term heavy nature of the respondent’s work caused and/or contributed to his condition and hence the requirement for, or “material contribution” to the need for, surgery.
Although not specified in the appellant’s submissions, the relevant findings which are being challenged appear at reasons [50] where the Member held the following:
“Bearing in mind that caution with which clinical notes should be treated, as ‘experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury’, I think that what the doctors have recorded about the [respondent’s] work, taken with his statement evidence, is sufficient to find that Mr Conlan was engaged in heavy physical work over the 10 years he was employed by the [appellant]. The Commission is a specialist tribunal, and I also take notice of the heavy nature of work as a concreter.”[63]
[63] Reasons, [50], citing Davis, [35], per Mason P, Beazley and Tobias JJA agreeing.
This issue, namely the sufficiency of the respondent’s evidence about the heavy nature of his work, was the subject of argument. Before the Member, the appellant submitted on this issue that the respondent’s evidence was insufficient and lacking in detail.[64] This, it was submitted, meant that the respondent did not discharge his onus.[65]
[64] T 27.34–28.2.
[65] T 28.14–16.
Consequently, it is the appellant’s task on appeal to show why the Member’s finding at [50] was wrong. This is the duty on appeal.[66]
[66] Section 352(5) of the 1998 Act; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.
I accept that the evidence on this point was brief and succinct. In the respondent’s statement, the evidence was as follows:
“2.     I started work initially as a concreter with the Council and then as a water truck driver. I then took on the role of concreter again. My service overall dated back approximately 10 years.
3.      My work has always been of a heavy nature putting pressure and strain on my neck and both shoulders and although I cannot bring to mind any specific left shoulder pain and/or discomfort prior to the specific incident of 3 April 2020.
4.      I hurt it in that specific incident and there has been no resolution of my pain and discomfort since then.”[67] (emphasis added)
[67] ARD, p 1.
The appellant led no evidence contrary to the respondent’s statement in the sections of his statement I have recounted.
But this was not the only evidence which supported the respondent’s argument. The Member from reasons [44] commenced a review of the medical evidence, appropriately directing himself as to the caution to be exercised when approaching such records.[68] At reasons [51] the Member refers to Dr Stephenson’s opinion about the “direct relationship between the condition in the left shoulder he found on examination and the injuries sustained in employment”. I would also refer to the report of Dr Petrelis dated 29 September 2021[69] where the doctor says that “… the type of work that he is doing and has done, has flared up his arthritis to a point where he now needs surgery.” (emphasis added)
[68] Reasons, [50].
[69] ARD, p 51.
There are a number of problems with the appellant’s submissions on this point.
The respondent said he performed heavy work for 10 years and, as stated, this evidence was not contradicted by the appellant. The respondent’s assertion also had support in his medical case as identified by the Member (at reasons [50]). In Australian Securities and Investments Commission v Hellicar[70] Heydon J referred to the Blatch v Archer[71] analysis in the following terms:
[70] (2012) 247 CLR 345, 441.
[71] (1774) 1 Cowp 63 [98 ER 969].
“The Court of Appeal’s conclusion cannot be supported by reference to the first strand in its reasoning, resting on a duty of fairness. The respondents in this Court preferred to support the outcome on the second strand. It is based on the Briginshaw qualifications to the standard of proof on the balance of probabilities in proceedings of the present kind, as reflected in s 140(2)(a)–(c) of the Evidence Act. It is also based on the following passages. In Blatch v Archer Lord Mansfield CJ stated:
‘It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’
In G v H Brennan and McHugh JJ stated:
‘[W]hen a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.’
In Ho v Powell Hodgson JA stated:
‘[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
…
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.’
In Shalhoub v Buchanan Campbell J stated:
‘[F]ailure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of Lord Mansfield’s maxim.’
In Whitlam v Australian Securities and Investments Commission Hodgson, Ipp and Tobias JJA stated:
‘[T]he principle in Briginshaw calls attention to the requirement that a party seeking a finding of serious misconduct produce adequate material to enable a court to reach a comfortable satisfaction on such a serious matter. Although this is not the same as the obligation of the Crown to call available evidence in a criminal prosecution, we think it is fair to say that a person seeking such a finding does need to be diligent in calling available evidence, so that the court is not left to rely on uncertain inferences.’
And in Cook’s Construction Pty Ltd v Brown Hodgson JA stated, in an ex tempore judgment:
‘[W]here a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party’s favour from indirect and second-hand evidence, when the party doesn’t call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.’” (citations omitted, emphasis added)
At [257] Heydon J described the principle in these terms:
“However, counsel for the Hellicar respondents submitted that the authorities quoted above support the view that where a witness who could have been called by a party is not called ‘the direct evidence of that party may be more readily rejected and the inferences for which that party contends may be treated with greater reserve’. (This substantially quoted Glass JA’s words in his reasons for judgment in Payne v Parker.) They also contended that the trier of fact could make ‘an assessment of the overall weight of the evidence unfavourable to that party.’ (This paraphrased part of Austin J’s reasons for judgment in Australian Securities and Investments Commission v Rich.) The better reading of these propositions drawn from Glass JA’s and Austin J’s reasons is that the weaker one party’s evidence, the less adequate that party’s evidence as a whole may be to meet a burden of proof. Items of evidence can have a mutually reinforcing character even if they are not strictly corroborative of each other. They can have that character even if they are circumstantial only. But the two quoted propositions do not support or correspond with the Court of Appeal’s reasoning. The Court of Appeal did not hold that, in the absence of Mr Robb’s evidence, a piece of evidence capable of giving rise to uncertain inferences only was insufficient to satisfy ASIC’s burden of proof. Rather it held that an exact proof — the minutes — should be given discounted weight and reduced cogency because of Mr Robb’s absence.” (citations omitted, emphasis added)
Heydon J’s observations of the assessment of this principle by Glass JA and Austin J are apt to the circumstances of this case. The respondent led evidence about the heavy nature of his employment over a period of 10 years. This evidence was brief. This evidence had elements of corroboration in his medical evidence. Whilst the appellant has criticised the sufficiency of the respondent’s evidence as not meeting the onus of proof, the appellant was in a position to counter this evidence but did not do so. In this circumstance, the respondent’s evidence as a whole was available for use by the Member, even though the evidence was not as comprehensive as it might otherwise need to be. The Member, in accordance with the passage (above) from Ho v Powell,[72] clearly decided that the “limited material” constituted an “appropriate basis on which to reach a reasonable decision”.
[72] [2001] NSWCA 168, [14].
I note the Member also relied on the following proposition: “The Commission is a specialist tribunal, and I also take notice of the heavy nature of work as a concreter.”[73] No issue is taken with the Member’s approach in this regard on appeal. The Commission is permitted to rely on its expertise provided that it is not used to reach a conclusion contrary to the evidence.[74] The Member’s conclusions on this issue at [50] were consistent with the evidence. The complaint about the Member’s factual finding with respect to the heavy nature of the respondent’s work as a concreter is not established. This aspect of this ground fails.
[73] Reasons, [50].
[74] Daly Smith Corporation (Aust) Pty Ltd t/as DSC Personnel v Scherf [2008] NSWWCCPD 74.
I have set out paragraph [18] of the appellant’s submissions above. Those submissions deal with the question as to whether or not the aggravation produced by the 3 April 2020 injury had ceased. The Member dealt with this issue from reasons [53] onwards. I would remark that there has been no attempt by the appellant, on this discrete issue, to point to any error said to have been made by the Member in these passages starting at [53]. This submission in truth seeks to reagitate the merits argument without identifying error. The Member in the passages from reasons [53] has reviewed the evidence before reaching the terminus of his decision making on this issue at reasons [63]. The Member preferred the respondent’s medical evidence to that of the appellant, specifically Dr Powell’s opinion, for the reasons expressed therein. This was a decision plainly open on the evidence and well within the province of the Member as the finder of facts. There is nothing in this complaint.
As a result of the above, this ground has failed to establish error. Ground Two is dismissed.

As to Ground Three

Ground Three is shortly expressed as follows:
“As noted above, there was no jurisdiction to entertain a claim of this nature. If such a claim was before the Commission. It is insufficiently clear on the Member’s reasons why the Member regarded it is appropriate to make such a finding in light of the matters raised in Ground 2.”[75]
[75] Appellant’s submissions, [19].
This ground is based upon the establishment of Grounds One and Two. Given my decision on both grounds, Ground Three as a consequence also fails.

DECISION

The Certificate of Determination dated 16 May 2023 is confirmed.

Judge Phillips
PRESIDENT

1 March 2024