Jowett v S & R Jowett Pty Ltd - [2022] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Jowett v S & R Jowett Pty Ltd [2022] NSWPICPD 42
APPELLANT:	Scott Jowett
RESPONDENT:	S & R Jowett Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-W5327/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	11 November 2022
ORDERS MADE ON APPEAL:	1. The Member’s decision dated 28 February 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – proof of consequential conditions – credit findings – alleged factual error
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr W Carney, counsel
Shine Lawyers
Respondent:
Mr J McEnaney, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF Member’s DECISION:	28 February 2022

INTRODUCTION AND BACKGROUND

Scott Jowett (the worker/appellant) was a qualified landscaper. He had a prior history of work-related low back pain dating back to the mid-1980s, for which he underwent a lumbar fusion in about 1993. He received workers compensation in connection with this, including some lump sum compensation. In about 2014 he set up a business, S & R Jowett Pty Ltd t/as Sea Scapes (the respondent/employer).[1] It carried out mainly residential projects. The worker performed “hands on” landscaping work with the firm, which also had three to four other employees. His low back remained symptomatic. It deteriorated in 2017. On 27 February 2017 he underwent further lumbar surgery at the hands of Dr Coughlan.[2]
[1] Worker’s statement 25/11/19, [7], Reply, p 24.
[2] Worker’s statement 28/9/21, [16]–[21], [26]–[28], Application to Resolve a Dispute (ARD), p 2.
The appellant suffered an injury on 13 June 2017. He attended premises at Berkeley Vale Hydraulics and Engineering to wash a bobcat used in the business. He was lowering the cabin of the bobcat when it stuck and then suddenly came free, causing it to drop quickly. The worker lost his footing and fell against the inside of a pit well. He was taken to Gosford Hospital.[3]
[3] ARD, pp 3–4.
The appellant suffered a serious injury to his left foot and ankle for which he ultimately came to a fusion of the left subtalar joint on 14 February 2019. There was a problem with non-union. On 28 May 2020 the appellant underwent left calcaneal osteotomy with removal of the screws and a revision fusion. He has required extensive use of crutches.[4]
[4] ARD, p 5.
The appellant stated that on 15 February 2019 he was due to be discharged from hospital following the surgery to fuse his left ankle. He stated that he showered and was readying himself to go home. He was using a crutch when it caught in his bag causing him to stumble, hitting his left shoulder against a wall and falling to the ground. The worker stated that he started exercising when he got off crutches. He said his shoulder “became much more problematic”. He stated that eventually he came under the care of Dr Bateman who recommended surgery to the left shoulder. The workers compensation insurer declined liability for this surgery.[5]
[5] ARD, pp 5–6.
The appellant described multiple physical disabilities. The employer’s insurer paid him appropriate weekly benefits. He resumed work for a period following the accident on 13 June 2017, but eventually stopped working in about September 2018.[6] He said the employer was closed down.[7]
[6] Dr Dias report 25/3/20, ARD, p 13.
[7] ARD, pp 6–7.
Dr Bateman, a treating orthopaedic surgeon, reported on 27 July 2020.[8] He took a history that in the incident on 13 June 2017 the worker “landed heavily on the left side injuring the shoulder”. He also recorded that while reliant on crutches the worker had “a couple of slips landing on the shoulder”. The doctor described this as “all related to his workplace event” and thought the insurer had liability for the left shoulder problems. In a shorter report of the same date the doctor recommended left shoulder arthroscopic surgery, including rotator cuff repair, and biceps tendon tenodesis.[9]
[8] ARD, pp 83–84.
[9] ARD, p 65.
The worker was examined by Dr Dias, an occupational physician, at his solicitors’ request, on 12 March 2020. Dr Dias assessed 28 per cent whole person impairment in his initial report dated 25 March 2020.[10] The worker’s solicitors made a claim for lump sum compensation on this basis.[11] The employer’s insurer obtained a report from Dr Miniter, an orthopaedic surgeon, dated 12 May 2020.[12] The insurer issued a dispute notice dated 4 June 2020.[13] The notice stated that the circumstances of injury were not in issue and it was “evident you suffered a fracture in the left ankle”. In respect of claimed injuries to the neck, back, left shoulder, right hip and right knee, the insurer denied injury to these parts, relying on Dr Miniter’s opinion in concert with various treating records. It denied that permanent impairment had reached maximum medical improvement.
[10] ARD, pp 8–30.
[11] Letter 6/4/20, ARD, pp 48–49.
[12] ARD, pp 56–64.
[13] ARD, pp 50–55.
The current proceedings were listed for hearing on 24 January 2022. Mr Carney appeared for the worker and Mr McEnaney appeared for the employer. There were no applications to adduce oral evidence. Both counsel made submissions and the Member reserved her decision. The Commission issued a Certificate of Determination dated 28 February 2022, accompanied by 21 pages of reasons.[14] The Member rejected the worker’s case that he injured his left shoulder on 13 June 2017. The Member rejected the worker’s case that there was a consequential condition of the left shoulder as a result of a fall at North Shore Private Hospital in February 2019. The Member accepted the worker’s claim that there was a consequential condition affecting his left shoulder as a result of the use of crutches following the injury on 13 June 2017. The Member found the worker had failed to discharge the onus of establishing that the surgical procedure recommended by Dr Bateman was reasonably necessary as a result of the injury on 13 June 2017.
[14] Jowett v S & R Jowett Pty Ltd [2022] NSWPIC 82 (reasons).

THE MEMBER’S REASONS

The Member noted the pleaded claim was for lump sum compensation together with the left shoulder surgery recommended by Dr Bateman. The issues were whether the worker sustained an injury and/or consequential condition of the left shoulder as a result of the incident on 13 June 2017, and whether the proposed left shoulder surgery was reasonably necessary as a result.[15] The Member summarised the contents of the worker’s statements dated 28 September 2019 (sic, 2021) and 25 November 2019. She summarised the medical evidence and the submissions by both parties.
[15] Reasons, [6], [10].
The Member referred to two decisions of Roche DP dealing with the proof of ‘consequential conditions’.[16] It was not necessary that a worker establish that an alleged consequential condition was an ‘injury’ within the meaning of s 4 of the 1987 Act. The Member quoted from Kooragang Cement Pty Ltd v Bates, saying it was necessary to decide whether, on a commonsense evaluation of the causal chain, “the disputed incapacity or death ‘resulted from’ the work injury which is impugned”.[17] The Member referred to Nguyen v Cosmopolitan Homes (NSW) Pty Limited[18] in which McDougall J, applying Briginshaw v Briginshaw,[19] said that, to be satisfied of the existence of a fact, a tribunal of fact “must feel an actual persuasion of the existence of that fact”[20].[21]
[16] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134, Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni).
[17] (1994) 35 NSWLR 452 (Kooragang), 464C.
[18] [2008] NSWCA 246 (Nguyen).
[19] [1938] HCA 34; 60 CLR 336.
[20] Nguyen, [44].
[21] Reasons, [86]–[90].
The Member said that the worker, in his statement dated 28 September 2021, gave a detailed account of the fall on 13 June 2017, including the mechanism by which the left shoulder was injured. He said that “he put out his left hand to stop himself from falling further and in doing so the left shoulder hit the pit wall”. The Member said that this mechanism was not described in the contemporaneous evidence around the time of the event. She said it was not described in the worker’s statement dated 25 November 2019. She said that neither this mechanism of injury or the left shoulder symptoms were mentioned in the ambulance records on 13 June 2017 or the records at Gosford Hospital. The worker described losing consciousness in the fall and having “difficulty with his memory and being unable to recall things”. She said the worker did not address how he came to be “able to recall with precision the mechanism of injury to his shoulder” despite the head injury and loss of consciousness.[22]
[22] Reasons, [92]–[96].
The Member referred to the worker’s explanation of the lack of description of the left shoulder injury, on the basis that the “significant left foot injury” took priority. She said the force of this explanation was reduced by the lack of recorded complaints of symptoms on specific examination of the upper limbs at the hospital. The Member described the notes of Dr Cavanagh as “in large part brief and unhelpful”. The Member said in those notes there was no reference to left shoulder symptoms for “almost two years” following the work injury. Dr Cavanagh’s certificates made no reference to it. She said the worker sought treatment for his right wrist “[n]ot long after the event” but that referral did not mention left shoulder symptoms.[23]
[23] Reasons, [97]–[98].
The Member referred to Watson v Foxman[24] and Onassis v Vergottis,[25] quoting a passage from Onassis that dealt with the importance of contemporaneous documents. She quoted from a decision of Keating P that dealt with the importance of contemporaneous complaint.[26] The Member described the absence of contemporaneous evidence as “significant in the present case”. The Member said there were references to left shoulder symptoms in the clinical records that predated the date of injury. There was an ultrasound of both shoulders on 22 August 2013. A clinical note on 18 January 2016, about 18 months before the work injury, recorded an acute injury to the shoulder after a fall and the need for physiotherapy, ultrasound and review. The Member said this clinical note was not addressed in the worker’s statement evidence and did not appear to have been brought to the attention of Dr Bateman or Dr Dias. Dr Dias initially recorded there were no prior symptoms in the left shoulder. When the 2013 ultrasound was brought to his attention, the doctor took a history that the 2013 symptoms were “only transient” and the left shoulder was “completely asymptomatic for several years prior to the work injury in 2017”.[27]
[24] (1995) 49 NSWLR 315.
[25] (1968) 2 Lloyds Report 403 (Onassis).
[26] Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland).
[27] Reasons, [101]–[103].
The Member described the clinical note dated 18 January 2016 as “not clear or specific”. It did not say which shoulder was involved. The Member referred to the need for “caution” in dealing with clinical notes. She noted there was no “contemporaneous corroboration” of a left shoulder injury on 13 June 2017. She said the clinical note on 18 January 2016 required “some explanation from the [worker] or his doctors”. The Member said that Dr Dias did not attribute the left shoulder condition to the injury on 13 June 2017, but rather to the fall at North Shore Private Hospital in February 2019. The Member referred to Dr Bateman’s comment on the 2013 ultrasound. Dr Bateman described it as “completely normal with no signs of any pathology”. The Member described this as “difficult to reconcile with the report of the 22 August 2013 ultrasound”, which referred to “bursal change and changes to the supraspinatus tendon suggestive of small tear”.[28] The Member concluded:
“Weighing all the evidence, I am not satisfied on the balance of probabilities that an injury to the left shoulder was sustained in the event on 13 June 2017.”[29]
[28] Reasons, [104]–[106].
[29] Reasons, [107].
The Member turned to an alternative argument that the left shoulder was injured in a fall in February 2019 following surgery for the left foot. She said there were “a number of inconsistencies” regarding the circumstances of this alleged fall. In the appellant’s statement dated 28 September 2021 he said the fall occurred on 15 February 2019, while getting ready to go home following surgery, when his crutch caught in his bag and he stumbled, hitting his left shoulder against the wall as he fell. In his statement dated 25 November 2019 he said that straight after the surgery (which was on 14 February 2019) he was mobile, placed his crutch on a towel on the ground and fell, dislocating his left shoulder.[30]
[30] Reasons, [108]–[111].
The Member said that the records of North Shore Private Hospital referred to the worker having a shower on 15 February 2019 but with assistance. She said there was a reference in the notes to the worker, after showering himself, tripping over a plastic bag that he was removing from his left leg. The Member said the note referred to the worker “falling to his right knee”. There was no reference to him striking or dislocating his left shoulder. The nurses’ observations recorded the worker as “satisfactory”. There was an x-ray of the left foot and the worker was “cleared to discharge”.[31]
[31] Reasons, [112]–[113].
The Member referred to a clinical note of Dr Cavanagh on 10 April 2019. It referred to a fall occurring on 14 February 2019 but without further details. This was the second consultation with Dr Cavanagh following the 2019 surgery, the first did not refer to the left shoulder. Dr Cavanagh again referred to shoulder symptoms in a consultation in October 2019, in the context of the worker “pushing himself up” and a “slip in a shower”. On 17 December 2019, Dr Cavanagh “recorded that the left shoulder symptoms were related to a fall, using crutches and noted difficulty swimming”.[32]
[32] Reasons, [114]–[115].
The Member said that the worker addressed the delay in reporting shoulder symptoms following the fall in February 2019 “by stating that the symptoms initially were sore and niggling but [he] wasn’t using that shoulder as he was not doing any physical activity”. The Member said this did not suggest “an acute or sudden onset”. She considered this “significant” given the prior left shoulder symptoms before the 2019 fall. She said this was not “entirely consistent” with Dr Dias’ history of “ongoing pain, stiffness and discomfort affecting the shoulder on a continual basis since the fall in February 2019”.[33] The Member concluded:
“Whilst I am satisfied that the [worker] sustained a fall at hospital for surgery to his injured left hindfoot on 16 February 2019, the inconsistencies in the descriptions of the fall; the absence of contemporaneous evidence of the shoulder being impacted in the fall; the delayed recording of symptoms; and the prior history of left shoulder pathology and investigations, leave me unsatisfied, on the balance of probabilities, that the [worker] sustained a consequential condition at the left shoulder in that fall.”[34]
[33] Reasons, [116]–[118].
[34] Reasons, [119].
The Member then turned to whether the left shoulder pain resulted from using crutches after the February 2019 surgery. This was supported by the worker’s statements and the opinion of Dr Bateman. The Member concluded:
“I am prepared to accept on the basis of this evidence that the [worker] did experience some increase or intensification of symptoms in the left shoulder as a result of the use of crutches following the injury to his left foot and ankle on 13 June 2017 and particularly following the surgery in 2019. Although the [worker] appears to have had pre-existing changes at the left shoulder, I am satisfied that the use of crutches rendered the [worker’s] experience of those symptoms more intense and that the [worker] sustained a consequential condition affecting his left shoulder as a result of the injury on 13 June 2017.”[35]
[35] Reasons, [123].
The Member then dealt with the causal relationship between this condition and the left shoulder surgery proposed by Dr Bateman. The Member referred to a Presidential decision of Murphy v Allity Management Services Pty Ltd which reviewed a number of authorities regarding causation and which concluded, in the context of a claim for surgery, that the worker “has to establish that the injury materially contributed to the need for the surgery”.[36] The Member said there was “no medical dispute that the surgery in the form proposed by Dr Bateman is currently reasonably necessary”. She said, “[t]he causal relationship between the surgery and the work injury is in dispute”.[37]
[36] [2015] NSWWCCPD 49 (Murphy), [58].
[37] Reasons, [127].
The Member said that Dr Dias did not assist the worker as Dr Dias related the need for shoulder surgery to the fall in February 2019, a proposition which the Member had rejected. Dr Dias gave no opinion on the contribution made by the worker’s use of crutches to the need for surgery. Dr Bateman supported the claim for the cost of the proposed surgery on the basis that there were a number of factors contributing to this need for treatment, including the use of crutches, the injury on 13 June 2017, and the subsequent fall in February 2019. She said that Dr Bateman had failed to address the effects of an acute fall in 2016 or the pathology reported in the ultrasound in 2013.
The Member referred to the opinion of Associate Professor Miniter in the employer’s case. He said the left shoulder condition was unrelated to the incident on 13 June 2017. He said it was highly unlikely that the episode at North Shore Private Hospital was causative of the shoulder issues. He referred to “a prior ultrasound demonstrating features of bilateral rotator cuff disease and rotator cuff tear on the left-hand side”. The Member said there was uncertainty regarding which ultrasound the doctor was referring to, his description is broadly consistent with the changes noted on the August 2013 ultrasound. The Member said that “Associate Professor Miniter gave no opinion with regard to the impact of the use of crutches on the [worker’s] current left shoulder condition or the need for surgery”. The Member concluded:
“131. Whilst I accept that a consequential condition at the left shoulder due to the use of crutches need not be the only or even a substantial contributing factor to the need for surgery, weighing the evidence currently before me, I am not satisfied that the consequential condition has materially contributed to the present need for surgery.
132. I am not satisfied that the surgery proposed by Dr Bateman is reasonably necessary as a result of the injury on 13 June 2017 for the purposes of s 60 of the 1987 Act.”

THE GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Member erred in not finding consequential condition in the left shoulder as a result of the fall at Royal North Shore Hospital [sic, North Shore Private Hospital] in February 2019. (Ground No. 1)
(b) The Member erred in finding that the appellant did not discharge the onus of proof of for [sic] surgery in the form of left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure recommended by Dr Bateman. (Ground No. 2)

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The decision is not interlocutory.

THE NATURE OF THE APPEAL

The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[38] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[39] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[40]
[38] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[39] (1966) 39 ALJR 505, 506.
[40] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill,[41] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[42]
[41] [2020] NSWCA 54 (Hill).
[42] Hill, [20].
In Northern NSW Local Health Network v Heggie,[43] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”[44]

GROUND NO. 1

The Member erred in not finding a consequential condition in the left shoulder as a result of the fall at [North Shore Private Hospital] in February 2019

[43] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

[44] Heggie, [72].

Appellant’s submissions

The appellant submits the Member’s decision on this issue “is contained in paragraph [119] of her reasons”. That paragraph reads:
“Whilst I am satisfied that the [appellant] sustained a fall at hospital for surgery to his injured left hindfoot on 16 February 2019, the inconsistencies in the descriptions of the fall; the absence of contemporaneous evidence of the shoulder being impacted in the fall; the delayed recording of symptoms; and the prior history of left shoulder pathology and investigations, leave me unsatisfied, on the balance of probabilities, that the [appellant] sustained a consequential condition at the left shoulder in that fall.”
The appellant refers to Bouchmouni. The appellant submits that decision represented a correct statement of the law regarding the proof of a consequential condition, which the Member failed to apply. The Member referred to an “absence of contemporaneous evidence of the shoulder being impacted”. The appellant submits he “explained his reasons for not complaining, and in fact alleges he did complain”, referring to the reasons at [116]. The appellant submits the only challenge to his credit was through the differing accounts of the accident at North Shore Private Hospital referred to in the reasons at [110] and [112]. In one of these he stated he hit his shoulder when he stumbled over a bag, in the other he stated that he slipped in the shower. The Member found that “a fall did occur”, but then found that the shoulder was not injured on the basis of a lack of contemporaneous complaint. The appellant submits this is not the test, there are many injuries or conditions that are not immediately apparent or the topic of immediate complaint.[45]
[45] Appellant’s amended submissions (hereafter referred to as appellant’s submissions), [3].
The appellant submits that he was “much more worried about his foot”, a natural reaction. He submits there was “no reason not to accept the [appellant’s] explanation” regarding why he did not immediately seek treatment for the shoulder. He states that he told the nurses of the fall against his shoulder. The appellant submits that he told Dr Cavanagh about the fall (referring to the reasons at [115]). He submits this was consistent with his evidence that he was more concerned about his foot than his shoulder. The appellant submits that there was no challenge to his credit, so his evidence should be accepted regarding the shoulder condition resulting from the fall at North Shore Private Hospital.[46]
[46] Appellant’s submissions, [4]–[7].

Respondent’s submissions

The respondent submits, dealing with the appeal generally, that the appellant contends there were “erroneous conclusions of fact”. The respondent refers to Raulston and submits the appellant needs to identify error. It submits the appellant seeks to “re-contest matters already properly decided on the basis of preference of outcome, rather than by establishing any error”.[47]
[47] Respondent’s submissions, [2]–[5].
The respondent refers to the appellant’s submission that, in the absence of a challenge to the appellant’s credit, the appellant’s evidence that the shoulder condition resulted from the fall at the hospital should be accepted. The respondent submits the appellant does not identify “what ‘condition’” resulted. It submits the appellant cannot identify “a specific pathology which was produced by the fall”. It submits that for a condition to have been found the Member would need to be in a position to determine that some change had arisen from earlier pathology. It submits the appellant cannot identify what condition was present, either before or after the fall. The respondent submits the appellant “cannot satisfy the relevant test for a ‘condition’ to have been received”.[48]
[48] Respondent’s submissions, [6]–[11].
The respondent submits that the Member’s assessment of the appellant’s evidence was not based on ‘credit’ but rather on his reliability. It submits the fact that the Member did not make a finding adverse to the credit of the worker does not mean his evidence is accepted as being “factually correct”. A witness may ‘misremember’ events. The respondent submits the appellant’s recollection “must be regarded as having dimmed or faded with time”. This calls into question the accuracy of his recollection (as opposed to his honesty). His account of the fall varied across statements. The respondent refers to the pre-existing pathology demonstrated in 2013 and the “GP record of a fall in January 2016”, which required physiotherapy and a further scan. It submits these matters were not relayed accurately to the medico-legal assessors or explained in the statement evidence. The respondent submits they go to reliability as opposed to ‘credit’. The respondent submits it was open to the Member to make the factual finding that the appellant did not suffer the alleged consequential condition, for the reasons which she gave. It submits the appellant has not demonstrated error, but rather a result that he would prefer based on a different reading of the evidence.[49]
[49] Respondent’s submissions, [12]–[18].

Consideration

The Member’s finding, at [107] of the reasons, that the appellant had not discharged his onus of establishing injury to the left shoulder in the incident on 13 June 2017, is not challenged on this appeal. The appellant’s challenge to the Member’s decision is made against the finding that there was not a consequential condition of the left shoulder “arising out of” the fall at North Shore Private Hospital in February 2019. The use of the phrase “arising out of” has the (no doubt unintentional) potential to mislead. The issue before the Member was not whether the appellant suffered injury to the left shoulder ‘arising out of’ his employment, but rather whether the left shoulder was affected by a ‘consequential condition’ that resulted from the conceded injury that occurred on 13 June 2017.
State of New South Wales v Bishop[50] was a matter in which a worker, following a back injury at work in 2004, periodically experienced symptoms in which her left leg would collapse. On one occasion, in 2011, such an episode was alleged to have caused the worker to collapse at home, injuring her left foot and ankle. Basten JA said “The question as to the causal link (if any) between the back injury in 2004 and the fall in 2011 was pre-eminently a question of fact.”[51] In Bouchmouni, Roche DP said:
“It is accepted law that if an ‘injury’ is aggravated by medical treatment, or if the treatment adopted to remedy the injury causes a secondary condition, the total condition is attributable to the original incident or event (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR at 172)”.
And:
“… It was no part of Mr Bouchmouni’s duties to have surgery on his knee or to walk with an altered gait. Those things arose because he suffered an injury to his knee in the course of his employment. If a further medical condition has resulted from the treatment of the knee injury (or from an altered gait because of knee symptoms), as has happened in this case, that condition (the back condition) has resulted from the injury but is not itself an ‘injury’.”[52]
[50] [2014] NSWCA 354; 14 DDCR 1 (Bishop).
[51] Bishop, [6].
[52] Bouchmouni, [70], [73].
The issue was whether, as a matter of fact, the appellant established that the condition of his left shoulder resulted from the accepted injury on 13 June 2017. On appeal the issue is whether the Member erred (applying the principles outlined at [27] to [30] above) in finding that the appellant had failed to discharge that onus. The appellant states that the Member’s reasons on the issue relied on an absence of contemporaneous evidence. The appellant makes the following points:
(a)    The appellant explained why he did not complain and also alleges that he did complain. He submits he told the nurses of the fall. The appellant says that he was much more worried about his foot, a natural reaction.
(b)    Whether there is contemporaneous complaint of a consequential condition is not the test.
(c)    The only challenge to the appellant’s credit was based on the two versions of the incident, whether the shoulder was hurt when he stumbled over a bag or when he slipped in the shower. He submits there was no challenge to his credit, so his evidence should be accepted.
There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied in the giving of that evidence.[53] The rejection of evidence does not amount to a conclusion that a witness knowingly gave false evidence.[54] Similarly, a person’s credit can be challenged, for example on the basis of unreliability, without it being asserted or found that he or she was being deliberately untruthful.
[53] Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256.
[54] Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444, [69].
In Onassis, to which the Member referred in her reasons, Lord Pearce said:
“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?”[55]
[55] Onassis, 431.
Issues of ‘credibility’ raised in the above discussion extend to matters beyond deliberate untruthfulness. In Fox v Percy the plurality, after referring to limitations on the ability of judges to accurately distinguish between truth and falsehood on the basis of appearances, said:
“Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”[56]
[56] [2003] HCA 22; 214 CLR 118, [31].
The appellant’s submission, that the test for whether a consequential condition is established does not require proof of contemporaneous complaint, is superficially true. The causation issue before the Member was one of fact, to be decided on the evidence overall. What is relevant to the proof of a secondary condition will clearly vary, depending on the circumstances of the particular case.
In his statement dated 28 September 2021 the appellant said that, at the time of the fall on 15 February 2019 (when his crutch caught in his bag) his left shoulder was sore but he was more worried about his foot. He said that he believed he told Dr Cavanagh “about my shoulder being sore initially after it happened”. The appellant’s version was of left shoulder symptoms contemporaneous with the fall. In his statement dated 25 November 2019[57] the appellant described the fall at North Shore Private Hospital as occurring on 14 February 2019 “straight after the surgery when I was mobile”. He said he placed his crutch on a towel on the ground and it slid. The appellant said that he “fell over and dislocated left shoulder”. He said he was released from hospital “a couple of days later”.[58] This version also involves symptoms (a dislocation) immediately after the fall. The presence of contemporaneous complaint was potentially relevant to the occurrence of the fall, on either of the versions in the statements. Did “contemporary materials, objectively established facts and the apparent logic of events” support the case that the appellant sought to make?
[57] Reply, pp 23–33.
[58] Reply, pp 31–32.
The causation issue before the Member was one of fact, to be decided on the evidence overall. She concluded that there were inconsistencies in the appellant’s descriptions of the circumstances. The Member did not conclude that the appellant’s evidence was intentionally untruthful.
The Member identified a number of “inconsistencies” relating to the allegation of a consequential condition that resulted from a fall at the hospital. The differing versions in the statements and medical records were discussed at [108] to [113] of the reasons. The Member referred to clinical notes of the hospital. On 16 February 2019 these recorded that the appellant showered himself and then tripped over a plastic bag he was removing from his left leg. This was not consistent with either of the versions in the statements. The Member said the hospital notes did not refer to striking or dislocating the left shoulder and the appellant was cleared for discharge. The Member said that the next recorded mention was made to Dr Cavanagh on 10 April 2019 and referred to a fall on 14 February 2019. The Member referred to entries in Dr Cavanagh’s notes in October and December 2019, that included reference to a slip in a shower and using crutches. The Member said the appellant’s description of his symptoms did not suggest “an acute or sudden onset of severe or more intense symptoms in the left shoulder following the fall”.[59] The Member’s factual finding rejecting this allegation was in her reasons at [119], quoted at [18] above. She specifically relied on the “inconsistencies” in descriptions of the fall, the delayed recording of symptoms and the prior history of left shoulder pathology. Reading the Member’s reasons as a whole, it cannot be accurately said, as the appellant submits, that there was no challenge to his credit and his evidence should therefore be accepted. The Member’s references to inconsistencies reflected findings of unreliability when the appellant’s evidence was measured against contemporary materials and objectively established facts (see the reasons at [119]). Although the Member did not find that the appellant had been deliberately untruthful, there were significant reservations about the appellant’s reliability.
[59] Reasons, [109]–[117].
The appellant submits this involved an incorrect test. It submits there are many injuries or conditions that are not immediately apparent or the topic of immediate complaint. It is not unusual for a secondary condition to become apparent well after the employment injury from which it results. Conditions that result from overuse to a limb, due to guarding a limb or part that was previously injured in a work injury, are common examples. The circumstances in Bishop (see [38] above) involved a contrary situation, where there was a leg injury due to a collapse that resulted from a previous work-related back injury. The Member quoted at some length from the well-known decision in Kooragang, saying that causation “is a question of fact to be determined on the basis of the evidence, including, where applicable, expert evidence.”[60]
[60] (1994) 35 NSWLR 452, 464A.
The extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature. The matters referred to by the Member in her reasons at [119] were relevant. The Member, in her reasons at [101], dealt with the ultimately unsuccessful argument that the left shoulder was injured in the incident on 13 June 2017. In that context she said the “absence of contemporaneous evidence is significant in the present case, particularly given that there are prior references to left shoulder symptoms in the clinical records” (emphasis added). This comment was consistent with an awareness that the relevance of contemporaneous complaint depended on the circumstances of the case. I do not accept the submission that, in considering whether there were reported, contemporaneous shoulder symptoms at the time of the fall/s, the Member applied an incorrect test.
The balance of the matters raised in Ground No. 1 largely seek to reagitate submissions that were dealt with by the Member at first instance.

The appellant submits he explained his reasons for not complaining of the left shoulder contemporaneously, and additionally asserts that he did complain to the nurses (see [32] to [33] above). The Member dealt with this. References to the entries in the hospital notes appear at [29] to [31] of the reasons. In the reasons at [112] to [115] the Member referred to the notes and said they contained no mention of the appellant showering on 14 February 2019. He showered on 15 February 2019 with assistance. There was no reference to a fall on 14 or 15 February 2019. There was a reference to a fall on 16 February 2019 when the appellant showered himself and was trying to remove a plastic bag from his leg. The note stated that he fell to his right knee. The nurses’ observations recorded him to be “satisfactory”. There was no reference to striking or dislocating the left shoulder. He was cleared for discharge.
The appellant submits he complained to Dr Cavanagh about the fall. The Member dealt with this. She set out relevant aspects of the notes at [32] to [34] of the reasons. She dealt in greater detail with Dr Cavanagh’s records at [114] to [115] of the reasons. The first mention of a fall in those notes was on 10 April 2019. The doctor recorded a fall had occurred on 14 February 2019 without other details of the history. The Member referred to Dr Cavanagh’s notes in the reasons at [98], describing them as “in large part brief and unhelpful”.
It is necessary that the reasons be read as a whole.[61] The Member dealt with the allegation of a consequential injury in a fall at the North Shore Private Hospital at some length, in the reasons at [108] to [119]. She identified various historical inconsistencies. In the context of the prior left shoulder pathology and investigations, she made a factual finding that the appellant had not satisfied his onus of proof on the causation issue. She ultimately concluded that a fall had occurred at the North Shore Private Hospital but she was not satisfied that the appellant had established a consequential condition of the left shoulder. This approach was open to the Member. The appellant has failed to establish ‘error’ within the meaning of the authorities referred to at [27] to [30] above.
[61] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
Ground No. 1 fails.

GROUND NO. 2

The Member erred in finding that the appellant did not discharge the onus of proof of for [sic] surgery in the form of left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure recommended by Dr Bateman.

Appellant’s submissions

The appellant refers to the summary of the opinions of Dr Bateman and Dr Cavanagh at [31] to [39] of the reasons. The appellant submits the Member correctly noted that Associate Professor Miniter’s opinion on the need for the proposed surgery failed to deal with the effect of crutches. The appellant accepts the test described in Murphy, being whether “the injury (condition) materially contributed to the need for the surgery”. The appellant submits it is clear that the need for surgery arose after the fall and the use of crutches accelerated the need. Reference is made to the appellant’s statement at [94] and [95] and to the reasons at [29] to [39] (which deal with the evidence of Dr Bateman and Dr Cavanagh). The appellant submits that, even if the Member’s findings are not disturbed, “the need for surgery only arose after the accepted consequential condition (use of crutches)”. It submits there is no other cause for the need set out in the findings or the evidence.[62]
[62] Appellant’s submissions, [8]–[9].
The appellant refers to the Member’s criticism of Dr Bateman for not addressing the acute fall in 2016 or the pathology identified on ultrasound in 2013. The appellant submits Dr Bateman commented on both of these matters. The doctor said that the 2013 ultrasound showed the shoulder was “completely normal”. The doctor said the acute fall caused “minor niggles” (referring to the reasons at [37]). The appellant submits that Associate Professor Miniter’s conclusion on the findings in the ultrasound was “meaningless” and not relied upon by the Member. The appellant submits the only treating material that dealt with the 2016 fall was one entry in Dr Cavanagh’s notes. Dr Cavanagh supported the increase in symptoms in late 2019 (there is reference to the reasons at [32] to [35]). The appellant submits the fall in 2016 “does not seem to be a relevant injury to the need for surgery”. The appellant submits it was an error for the Member to conclude that the reference to the fall in 2016 negated Dr Bateman’s opinion on the cause of the need for surgery.[63]
[63] Appellant’s submissions, [10].
The appellant submits that Dr Bateman and Dr Cavanagh treated the appellant because his symptoms increased. The past ultrasounds or past accidents that were relatively asymptomatic were “irrelevant”. The increase in symptoms dated from the use of crutches, there was no other cause offered for the increase in symptoms at that time. It was an error to conclude otherwise. The need for surgery results from the consequential condition in the left shoulder.[64]
[64] Appellant’s submissions, [11]–[12].

Respondent’s submissions

The respondent states the Member rejected both the allegation of injury to the left shoulder in the work injury on 13 June 2017 and the allegation that a consequential condition occurred as a result of the fall at North Shore Private Hospital in February 2019. It submits the only “factual relationship between the injury at work and the symptoms in the shoulder was by way of an ‘intensification of symptoms’ as a result of the use of crutches” for brief periods after each fall. In the appellant’s medical case, Dr Dias attributed the need for surgery to the fall at hospital in February 2019 (which the Member rejected). Dr Bateman considered the use of crutches against the background of the two falls (which were rejected) and without considering the shoulder symptoms in 2013 and 2016 which precipitated ultrasound scans and complaints to the general practitioner.[65]
[65] Respondent’s submissions, [19]–[21].
The respondent accepts the test applied, that in Murphy, was correct. One cannot say that any consequential condition must necessarily rise to the level of material contribution. It was necessary that the Member have an actual sense of persuasion that the consequential condition made a material contribution to the need for the proposed surgery. The respondent refers to the appellant’s argument that the increased symptoms causing the need for surgery must be the use of crutches, there is no other reason offered. The respondent submits “it is entirely plausible in fact that the [a]ppellant’s shoulder problems, revealed in 2013 and increased in the fall in 2016, had simply deteriorated over time”. The injury on 13 June 2017 “brought about the need for crutches briefly on two occasions”. The respondent submits this did not “rise to the level of a material contribution or bring forward the need for surgery”.[66]
[66] Appellant’s submissions, [22]–[25].
The respondent submits the appellant has not demonstrated error and simply cavils with the result.[67]
[67] Appellant’s submissions, [26].

Consideration

It is common ground that the test described in Murphy is appropriate. The only positive finding in the appellant’s favour, regarding the left shoulder, was that the use of crutches “rendered the [appellant’s] experience of those symptoms more intense”.[68] Did that consequential condition materially contribute to the need for the proposed surgery to the left shoulder?
[68] Reasons, [123].
The Member said that Dr Dias’s view on causation was that the need for surgery resulted from “the fall at North Shore Private Hospital in February 2019”. She said that she had rejected that “proposition”. Dr Dias did not comment on any causal relationship between the need for surgery and the use of crutches. His opinion did not assist the appellant.[69] The Member referred to the report of Associate Professor Miniter, relied on by the respondent. The Member noted Associate Professor Miniter gave no opinion regarding the impact of the use of crutches on the [appellant’s] current left shoulder condition or the need for surgery.[70]
[69] Reasons, [128].
[70] Reasons, [130].
The Member referred to the opinion of Dr Bateman, who reported on 27 July 2020.[71] The Member noted Dr Bateman “does suggest that the use of crutches contributed to the condition for which surgery is proposed, but only as one of a number of factors”. Dr Bateman had a history that in the incident on 13 June 2017 the appellant “fell in a pit, 4 metres, on the 13th June 2017 and severely injured his left ankle and landed heavily on the left side injuring the shoulder”. This history of injury to the left shoulder in the incident on 13 June 2017 was inconsistent with the Member’s findings. Dr Bateman recorded a history that the appellant “had a bit of a niggle in 2013 and the ultrasound showed that the shoulder is completely normal with no signs of any pathology and it appropriately settled with a small amount of physiotherapy”.[72] The Member said:
“Importantly, Dr Bateman has also not addressed the evidence of an acute fall affecting [the] shoulder in 2016 or properly grappled with the pathology reported on the ultrasound in August 2013 in expressing his opinion.”[73]
[71] ARD, pp 83–84.
[72] ARD, p 83.
[73] Reasons, [129].
The finding of a consequential condition, made at [123] of the reasons, was of a very limited nature:
“I am prepared to accept on the basis of this evidence that the [appellant] did experience some increase or intensification of symptoms in the left shoulder as a result of the use of crutches following the injury to his left foot and ankle on 13 June 2017 and particularly following the surgery in 2019. Although the [appellant] appears to have had pre-existing changes at the left shoulder, I am satisfied that the use of crutches rendered the [appellant’s] experience of those symptoms more intense and that the [appellant] sustained a consequential condition affecting his left shoulder as a result of the injury on 13 June 2017.”
None of the medical evidence addresses the question of whether the injury on 13 June 2017, on the basis of only that limited finding of a consequential condition, represents a material contributing factor to the need for left shoulder surgery. The Member’s ultimate finding of fact is quoted at [22] above. Effectively she found that the appellant had not discharged his onus on this topic. The fact that the requirement for the surgery arose after the found consequential condition does not prove that the consequential condition materially contributed to that requirement. It is an issue on which the appellant carries the onus. I do not accept the appellant’s contrary argument (see [54] above). As the respondent submits, “it is entirely plausible in fact that the [a]ppellant’s shoulder problems, revealed in 2013 and increased in the fall in 2016, had simply deteriorated over time”. The approach taken by the Member was properly open to her on the evidence. The appellant has not succeeded in establishing error within the meaning of s 352(5) of the 1998 Act. This ground largely seeks to reargue points that failed at first instance.
Ground No. 2 fails.

CONCLUSION

Both of the grounds have failed. The appeal fails.

DECISION

The Member’s decision dated 28 February 2022 is confirmed.

Michael Snell
Deputy President

11 November 2022