Lamont-Salter v Qube Ports Pty Ltd - [2021] NSWPICPD 15

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15
APPELLANT:	Steven Lamont-Salter
RESPONDENT:	Qube Ports Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-4944/20
MEMBER:	Ms J Peacock
DATE OF MEMBER’S DECISION:	1 December 2020
DATE OF APPEAL DECISION:	4 June 2021
CATCHWORDS:	WORKERS COMPENSATION – alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Foye Legal
Respondent:
Mr T Grimes, counsel
BBW Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 1 December 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Steven Lamont-Salter (the appellant) worked full time as a stevedore with Qube Ports Pty Ltd (the respondent) from May 2018. He unloaded cars from ships. He then worked unloading grain ships. He said that he did not experience any symptoms in his back or shoulders.[1] He had previous employment injuries with other employers.
[1] Appellant’s statement 27.5.20 (Appellant’s statement), [13]–[17], Amended Application to Resolve a Dispute (ARD), p 4.
On about 8 September 1990 and 7 November 1991, the appellant injured his right shoulder while working with Airtherm Pty Ltd as an air conditioning installer.[2] He stated that he underwent a shoulder reconstruction for this injury.[3] He received lump sum compensation in respect of 30 per cent permanent loss of use of his right arm at or above the elbow, together with pain and suffering compensation and interest.[4] He stated that he underwent a laminectomy in “around 1991 or 1992”, following a different employment injury, with Carlton Sheet Metal. He said he received lump sum compensation in respect of this injury, he did “not recall the details”.[5]
[2] Amended Application for Determination, Compensation Court of NSW, matter no. 6692/92, ARD, pp 73–74.
[3] ARD, p 3.
[4] Compensation Court of NSW award, matter no. 6692/92, 19.10.93, ARD, p 68.
[5] ARD, p 3.
The appellant was involved in an incident on 20 April 2019, the occurrence of which is not disputed. He was descending a steel ladder into the hold of a ship. He slipped off a rung and fell “about 1.5 to 2 metres before I grabbed on to right edge of the ladder with my right arm. I also caught my right foot on one of the rungs to stop my fall”, taking the weight of his body on his hands. He said he felt “immediate pain in [his] back”. He reported the matter and went home.[6] He saw a general practitioner on 22 April 2019 and was prescribed Endone. He was off work until 23 April 2019, when at the suggestion of the respondent he obtained a certificate of capacity to resume work for 20 hours per week. He said he could not cope with the pain in his back and his certification was reduced to 12 hours per week. He was paid weekly compensation for make-up pay.[7]
[6] Appellant’s statement, [20]–[24], [29]–[30], ARD, pp 4–5.
[7] Appellant’s statement, [32]–[40], ARD, pp 5–6.
The appellant said that in August 2019 he requested that he be taken off Endone. As he “transitioned to panadeine forte for pain management, [he] immediately noticed pain in [his] shoulders”. Scans revealed pathology in both shoulders.[8] He was certified “completely unfit for work” from 26 September 2019. The respondent denied liability for bilateral shoulder injuries in a s 78 notice dated 17 October 2019.[9] It denied liability for ongoing compensation benefits in a s 78 notice dated 8 September 2020 on the basis that incapacity no longer resulted from the employment injury. This was based on medical evidence the respondent obtained from Dr Deshpande that the effects of the injury to the back had resolved.[10]
[8] Appellant’s statement, [51]–[56].
[9] ARD, pp 18–22.
[10] Reply, p 14.
The current proceedings plead the back and bilateral shoulder injuries allegedly suffered on 20 April 2019. The relief sought is the cost of future treatment to both shoulders, including cortisone injections, the cost of orthopaedic consultations and potential surgery to the shoulders. Why the relief claimed is restricted to the shoulder injuries is not completely clear. The reasons note the dispute before the Member “concerns only the alleged injury to the bilateral shoulders” and that “no determination in respect of the back is sought”.[11] The appellant’s submissions indicate that the question of whether there is an entitlement referable to the back injury “need not be resolved at this stage”, a footnote refers to an application to litigate the issues simultaneously having been declined.[12]
[11] Lamont-Salter v Qube Ports Pty Ltd (4944/20, 1 December 2020) (the reasons), [4].
[12] Appellant’s submissions, [9].
The proceedings were listed for a conciliation and arbitration hearing on 21 October 2020. Mr Robison appeared for the appellant and Mr Grimes for the respondent. Neither party sought to cross-examine or to adduce oral evidence. Counsel addressed and the Member reserved her decision. The Commission issued a Certificate of Determination dated 1 December 2020, accompanied by the Member’s reasons. The decision relates to the allegations of bilateral shoulder injuries. The Member was not satisfied that the appellant suffered injury to his shoulders on 20 April 2019; she entered an award for the respondent.

TRANSITIONAL MATTERS

After the current appeal was lodged, the Workers Compensation Commission was abolished.[13] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[14] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[13] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[14] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of 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 without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act and the monetary thresholds in s 352(3) of the 1998 Act are satisfied. The ARD pleads that a sum of more than $9,468.10 is at issue for medical expenses.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    Ground No. 1: The Member erred in failing to apply the correct test as to causation as required by law.
(b)    Ground No. 2: The Member erred in giving legally required consideration to the matter:
Particulars
(i)Finding in favour of the respondent as to liability for injury by taking into account the irrelevant consideration of whether there was a prior injury to the left shoulder.
(ii)Failing to take into account the relevant consideration of injury to the right shoulder.
(iii)Failing to give proper consideration as to questions of injury.
(c)    Ground No. 3: The Member erred in fact in determining that the appellant had not injured his shoulders in the course of employment with the respondent.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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,[15] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[16] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[17]) 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’.”[18]
[15] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[16] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[17] [1996] HCA 140; 140 ALR 227.
[18] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[19] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[20]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[21]
[19] [2017] NSWWCCPD 5, [67].
[20] [2001] FCA 1833, [28].
[21] Raulston, [20].
In Northern New South Wales Health Network v Heggie,[22] 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”.[23]
[22] [2013] NSWCA 255 (Heggie).
[23] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[24] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. 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).”[25]
[24] [2020] NSWCA 54 (Hill).
[25] Hill, [20].

THE MEMBER’S REASONS

The Member noted the dispute was confined to whether the appellant had sustained injury to the shoulders. The appellant sought orders for payment of future medical expenses in respect of the shoulders together with a general order pursuant to s 60 of the 1987 Act.[26] The Member said it was common ground that injury to the shoulders was not reported on 20 April 2019, nor was treatment for the shoulders sought until August 2019.[27] She noted the appellant’s evidence regarding the fall on 20 April 2019, and that he was prescribed Endone by his general practitioners on 22 April 2019.[28] She said there was one explanation offered by the appellant for the four month delay in reporting shoulder symptoms, which was that he noticed the symptoms in August 2009 when he stopped taking Endone. She said this explanation was not given to Dr Bodel (qualified in the appellant’s case), Dr Bodel simply recorded that the shoulders were injured in the fall.[29]
[26] Reasons, [6]–[7].
[27] Reasons, [26].
[28] Reasons, [23]–[24].
[29] Reasons, [27]–[30].
The Member referred to the general practitioner’s clinical notes, from the Crown Medical Centre. There was a left shoulder complaint on 25 June 2016 that referred to “left shoulder pain for some time has had shoulder problem for years”. On 10 July 2016, the appellant was given a referral for a steroid injection and physiotherapy. On 13 July 2016 the note recorded the appellant had had the injection and was sore. There were then no complaints recorded in respect of either shoulder until August 2019. The notes showed that Endone was prescribed on 23 April 2019 for back pain as a result of the injury on 20 April 2019. On 11 July 2019, Endone prescriptions ceased and Panadeine Forte was prescribed instead. On 2 August 2019, the appellant was seen for back pain, “still no better”, and Endone was again prescribed. On 15 August 2019, back and bilateral shoulder complaints were recorded, with a history of right shoulder reconstruction in the past. This was the first reference to shoulder symptoms after the fall, and there was no mention in the notes of the shoulders being injured in the fall at work. On 24 August 2019, the notes reveal a history “[i]njured his shoulder after a fall at work”. The Member said that the notes did not refer to a history that awareness of shoulder symptoms coincided with ceasing Endone, in August 2019 or at any other time.[30]
[30] Reasons, [32]–[49].
The Member referred to the report of Dr Kalsi (of the Crown Medical Centre) to the appellant’s solicitors dated 21 August 2020. He thought it plausible that strong analgesics (Endone or Panadeine Forte) would have numbed shoulder pain. He said the injury “did play its part in the claimed shoulder injury” but recommended that specialist opinion be sought. The Member said that the doctor had not correlated his opinion with his clinical records. Endone was not prescribed until three days after the injury and was ceased from 11 July 2019 to 2 August 2019. She said that Dr Kalsi’s opinion was equivocal, deferring to the need for specialist medical opinion on causation. She said there was no specialist opinion that taking Endone could have masked the symptoms such that the appellant did not realise he had injured his shoulders until 15 or 24 August 2019.[31]
[31] Reasons, [50]–[53].
The Member said Dr Bodel was not told about the prior left shoulder problems. He did not record a history that the appellant did not notice his shoulder symptoms until August 2019, about four months after the fall. The Member noted Dr Bodel’s opinion that the injury was “the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of [the appellant’s] disease process in the neck and both shoulders”.[32]
[32] Reasons, [62]–[65].
The Member referred to the need that a history given to an expert should “provide a fair climate for their opinion”. She said Dr Bodel’s history did not include the history of a four-month delay before noticing shoulder symptoms or the history that symptoms were masked by Endone and immediately noticed when the appellant ceased Endone. She said this undermined the weight of Dr Bodel’s opinion, without this history there was not a fair climate for his opinion.[33]
[33] Reasons, [66]–[69].
The Member then dealt with the reports of Dr Deshpande, on which the respondent relied. Dr Deshpande had a history of the delay in reporting shoulder symptoms. He thought the right shoulder symptoms “most probably related to the old injury and two previous operations” and were “not related to the work injury”. The left shoulder findings “can also be a normal age-related finding”. Dr Deshpande thought work was not a substantial cause of the appellant’s shoulder complaints, “shoulder symptoms appeared months after the injury at work”. The Member said that Dr Deshpande had a history of the pre-existing problems, there was “a fair climate for the opinion that Dr Deshpande expresses as to causation. I prefer therefore the opinion of Dr Deshpande.”[34]
[34] Reasons, [70]–[79].
The Member concluded she was not satisfied that the appellant “suffered injury to his shoulders on 20 April 2019”. There was an award for the respondent.[35]

GROUND NO. 1

[35] Reasons, [82].

Appellant’s submissions

The appellant summarises the evidence in his statement dated 27 May 2020. He disclosed his prior problems. At the time of the incident he felt immediate pain in his back, which was “the preoccupying issue”. On the date of the incident he was prescribed Endone. When he transitioned to different medication, from Endone to Panadeine Forte, “he immediately noticed pain in his shoulders despite the absence of any intervening events”. Scans showed “significant pathology” in the shoulders.[36]
[36] Appellant’s submissions, [11].
The appellant refers to March v E & MH Stramare Pty Ltd.[37] The appellant submits that March “emphasises the role of the ‘but for’ test in causation … [which] will usually be appropriate absent multifactorial causation or cases of an intervening causative act”. Reference is made to comments made by Mason CJ in March that “underlying factual issues ‘must be determined by applying common sense to the facts’”. The appellant quotes the following frequently cited passage from Kooragang Cement Pty Ltd v Bates:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”[38]
[37] [1991] HCA 12; 171 CLR 506 (March), referred to in appellant’s submissions, [12].
[38] (1994) 35 NSWLR 452 (Kooragang), 463–464, quoted in appellant’s submissions, [13].

The appellant quotes at some length from passages from Watts v Rake[39] which deal with issues of onus.[40] The submissions quote from the following passage from Greif Australia Pty Ltd v Ahmed in which Roche DP, discussing Watts and Purkess v Crittenden,[41] said:
“In [Brown v Lewis [2006] NSWCA 87], Mason P stated at [83], ‘the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg [Watts]) but the ultimate persuasive onus remains with the plaintiff.’ In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in [Purkess]). Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed ‘if his evidence be accepted’ (at 168).”[42]
[39] [1960] HCA 58; 108 CLR 158 (Watts).
[40] Appellant’s submissions, [14].
[41] [1965] HCA 34; 114 CLR 164 (Purkess).
[42] Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461 (Greif), [54], quoted in appellant’s submissions, [17].
This led to the appellant’s concluding submission dealing with Ground No. 1:
“Consistent with the authorities, in approaching the question of causation, the [Member] was required to, but did not, acknowledge that despite no formal shifting in the onus, it fell to the respondent to identify and prove a novus actus interveniens which it did not, and having proved the surrounding circumstances, the worker below was entitled to proceed [sic, succeed].”[43]
[43] Appellant’s submissions, [18].

Respondent’s submissions

The respondent refers to the description of the incident in the appellant’s statements. It submits the circumstances do not support the occurrence of a bilateral shoulder injury, as they do not support an allegation of impact involving the left shoulder.[44]
[44] Respondent’s submissions, [9]–[10].
The respondent disputes the appellant’s factual case that he was prescribed Endone on 20 April 2019, the date of the incident. The general practitioner’s clinical note dated 22 April 2019 records the appellant was “taking Panadeine Forte from a friend”. The general practitioner’s note on 23 April 2019 records the prescription of Endone. The reasons at [37] to [38] are consistent with this. It is submitted the Member’s findings at [28] to [29] of the reasons do not support the proposition that the appellant failed to notice shoulder symptoms as he was focussing on his back symptoms.[45]
[45] Respondent’s submissions, [11]–[12].
The respondent disputes the appellant’s factual case that when he transitioned from Endone to Panadeine Forte he immediately noticed pain in his shoulders. The appellant ceased Endone from 11 July 2019, it was not prescribed between that date and 2 August 2019. Shoulder problems were reported on 15 August 2019, when the appellant was next prescribed Endone. This is inconsistent with the appellant’s evidence that “he immediately noticed the shoulder symptoms when he stopped taking Endone”.[46]
[46] Respondent’s submissions, [13].
The respondent submits the Member correctly applied the ‘common sense’ test of causation. The Member correctly rejected the opinion of Dr Kalsi, whose opinion was inconsistent with his own clinical notes. It submits the rejection of Dr Bodel’s opinion was correct. Dr Bodel did not have a history of the prior injury to the left shoulder, or the four-month delay in reporting shoulder symptoms. There was not a fair climate for Dr Bodel’s opinion.[47]
[47] Respondent’s submissions, [15].

Appellant’s submissions in reply

The appellant submits that although the appellant’s statement refers to grabbing the ladder with his right arm, this does not mean he did not also injure the left arm “in the melee which befell him”.
The appellant submits that on a common sense basis if there is an accident, and thereafter there are bilateral shoulder conditions with no other explanation, on the probabilities both shoulders were injured in the accident.[48]
[48] Appellant’s submissions in reply, [1]–[2].

Consideration

The initial and primary matter in issue before the Member was whether the appellant had suffered the alleged injury to his shoulders in the incident on 20 April 2019. The Member quoted from the appellant’s statement dated 27 May 2020:
“51.   In August 2019 I requested to be taken off Endone as I felt I was too reliant on it for pain management.
52.    As I transitioned to panadeine forte for pain management, I immediately noticed pain in my shoulders. There were no intervening incidents or events since my injury until August 2019.
53.    I reported this pain to Dr Kalsi, and he referred me for scans on my shoulders.”[49]
[49] Reasons, [27].
The Member noted the above was the only explanation offered for “the delay in noticing symptoms in his shoulders or seeking treatment in respect of same.” She noted that Dr Bodel (the orthopaedic surgeon relied on in the appellant’s case) recorded no history of the four-month delay in reporting shoulder symptoms after the incident, or that these symptoms were allegedly noticed immediately when the appellant ceased taking Endone. Dr Bodel simply recorded a history that “the shoulders were injured in the fall on 20 [April] 2019”.[50]
[50] Reasons, [28], [30].
The Member referred to the clinical notes of Dr Kalsi, the appellant’s general practitioner. The clinical notes following the fall, from 22 April 2019 to 2 August 2019 inclusive, referred to back symptoms, but made no reference to shoulder complaints. The first recorded shoulder complaints subsequent to the incident were on 15 August 2019. That clinical entry recorded the previous right shoulder reconstruction but made no reference to the incident on 20 April 2019. The Member noted that on the next consultation, on 24 August 2019, the clinical notes recorded “Injured his shoulder after a fall at work”. The Member said the general practitioner’s notes did not refer to an awareness of shoulder symptoms coinciding with the cessation of Endone, in August 2019 or at any other time. The Member set out details of Dr Kalsi’s prescription of medications which were, on their face, inconsistent with the contents of the appellant’s statement quoted by the Member (see [34] above).[51]
[51] Reasons, [37]–[49]
The respondent’s dispute notice dated 17 October 2019[52] described the alleged injury to the shoulders as a “claimed consequential condition”. This description was wrong and was inconsistent with the appellant’s case, which was brought on the basis that the shoulders were injured in the incident on 20 April 2019, rather than on an allegation of consequential injury. The respondent’s dispute notice dated 3 April 2020[53] denied liability in respect of the shoulder injuries on the basis that the insurer did “not agree that [the appellant’s] injury was received in the course of employment as required by section 4” of the 1987 Act, and that additionally s 9A of the 1987 Act was not satisfied. Overall, the notices were sufficient to place in issue the question of whether the appellant suffered injury to his shoulders in the incident on 20 April 2019. This was, in any event, consistent with how the case was conducted, which could restrict or enlarge the issues.[54]
[52] ARD, pp 18–23.
[53] Reply, pp 5–10.
[54] Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490, 517 (per Isaacs and Rich JJ), Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, [18] (per Mason and Gaudron JJ), Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157, [36].
It was clear that the parties and the Member approached the hearing on the basis that there was a fundamental issue regarding whether the appellant had suffered the alleged injury to his shoulders. At the opening of his submissions counsel for the respondent said: “the main issues in this matter are obviously section 4, section 9A and section 60”.[55] In the course of his submissions, the respondent’s counsel referred to the statutory definition of ‘injury’ and the need for “a sudden identifiable pathological change in the body brought about [by] an internal/external event to be a personal injury”.[56] The appellant’s counsel, at the start of his submissions, referred to the allegation of injury to both shoulders as “the issue before you in terms of both injury and in respect of section 60”.[57] The respondent’s counsel, addressing in reply, said the appellant “bears the onus in this case”. He referred to Nguyen v Cosmopolitan Homes[58] and submitted to the Member that she “must be persuaded that there was a, in my submission, frank injury that occurred on 20 April 2019”.[59]
[55] Transcript of arbitration hearing 21/10/20 (T), T 2.29–30.
[56] T 9.9–11.
[57] T 15.32–33.
[58] [2008] NSWCA 246.
[59] T 29.1–11.
It was against this background that the Member engaged in the fact finding summarised at [17] to [23] above, leading to the entry of an award for the respondent.
Watts was a case involving the assessment of damages in common law proceedings where the defendant argued the plaintiff’s post-accident condition would have been affected, in any event, by an existing arthritic condition. Dixon CJ observed that the plaintiff carried the onus “throughout”. His Honour said: “it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health”.[60] Purkess (in which similar arguments were run by a defendant) explained the effect of the decision in Watts, the plurality saying:
“We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him.”
And:
“… where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that [Watts] was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.”[61]
[60] Watts, [8].
[61] Purkess, [4].
In the course of the appellant’s submissions dealing with the above authorities, he quoted a passage from the decision of Roche DP in Greif, set out at [26] above. This does not assist the appellant. The passage refers to circumstances where a worker has made out a prima facie case that his or her condition “has resulted from a compensable work injury and that employment was a substantial contributing factor”. This was not the appellant’s position. The appellant’s claim failed in the current matter because he did not establish that he had suffered a compensable injury to his shoulders as alleged, in the course of his employment. This was in circumstances where there was a delay in the onset of shoulder symptoms of about four months from the date of alleged injury. The alleged cause of this delay (masking by the effects of Endone) was not on its face consistent with the Member’s consideration of the clinical notes. The appellant’s qualified orthopaedic surgeon, Dr Bodel, proceeded without a history of the four-month delay in the onset of shoulder symptoms, or of the alleged masking due to Endone. The respondent’s qualified orthopaedic surgeon, Dr Deshpande, had a history of the delay of several months between the incident and shoulder symptoms, and of the appellant’s explanation that he did not appreciate the shoulder pain due to the effects of Endone. Dr Deshpande rejected the proposition that the injury to the shoulders resulted from the incident as the symptoms appeared months later. The Member preferred the opinion of Dr Deshpande whose opinion was based, unlike that of Dr Bodel, on a history sufficiently like that established on the evidence that it provided a ‘fair climate’ for its acceptance.[62] (emphasis added)
[62] Reasons, [66]–[82].
The Member’s assessment of the weight to be afforded to the respective medical cases and her preference for the respondent’s medical evidence, having regard to the adequacy of the recorded histories, was consistent with authority.[63]
[63] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, 509G–510B; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, 8 DDCR 399, [83].
The decisions in Watts and Purkess deal with the sometimes moving evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability with a view to reducing the damages otherwise recoverable. Those decisions, and the decisions in Brown v Lewis and Greif which discuss them, make it clear that the ultimate persuasive onus remains with the plaintiff (the worker in the context of the current proceedings). The appellant did not make out a prima facie case “that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence” (to appropriate the words used in Purkess). The appellant failed to establish that he suffered the alleged shoulder injuries as a result of the incident. I do not accept the appellant’s submission that he was entitled to succeed in the absence of the respondent proving a novus actus interveniens.
Ground No. 1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant refers to the Member’s reasons at [67] where she said:
“Dr Bodel takes a history from the applicant. However, it is a history that includes only reference to a pre-existing right shoulder [problem] and includes no reference to any pre-existing condition in the left shoulder which had been the subject of prior complaints to his GP.”
The appellant submits it is “difficult to see how … a history of prior problems in one shoulder, but not the other (as recorded by the doctor) is particularly relevant especially when the mechanism of injury was that both upper limbs bore the brunt of the fall”. The appellant submits that the Member “distracted herself from the true enquiry incumbent upon her – namely the question of whether the shoulders were injured in the course of employment”.
The appellant submits that Dr Bodel was in any event “alive to a right shoulder injury in 1989 as this is recorded” in his report. The appellant submits that the Member, “in looking at the lacking history as to one shoulder, failed to consider whether the history as to the other shoulder (which was correct) was such that there was a compensable injury in that regard”. It is submitted the Member “failed to consider whether there was injury in the right shoulder”. She was required to give this question “proper, genuine and realistic consideration” (reference is made to Minister for Immigration and Citizenship v SZJSS[64]).[65]
[64] [2010] HCA 48.
[65] Appellant’s submissions, [19]–[21].

Respondent’s submissions

The respondent disputes that the mechanism of injury involved both upper limbs bearing the brunt of the fall.
The respondent submits the Member correctly considered the accuracy of Dr Bodel’s history. This was consistent with the then r 15.2(3) of the Workers Compensation Commission Rules 2011, evidence based on speculation or unsubstantiated assumptions is unacceptable. It was consistent with the application of authorities such as Paric, there must be a fair climate for a doctor’s opinion. The Member’s conclusion in the reasons at [82], that there was not a ‘fair climate’ for the acceptance of Dr Bodel’s opinion, was correct. So too was her conclusion that Dr Deshpande’s opinion was preferable. [66]
[66] Respondent’s submissions, [16]–[19].

Consideration

The appellant’s submissions on this ground are not easily understood. The way in which the ground is framed does not assist. Doing as well as I can, the appellant appears to be submitting that the reference at [67] of the reasons, to this aspect of Dr Bodel’s history, was to a matter that was not strictly relevant to the issue of bilateral shoulder injury. The submission that it “distracted” the Member from the real issue, of whether there was bilateral shoulder injury in the incident, is incorrect. The fundamental difficulty with the appellant’s argument, regarding whether he suffered injury to the shoulders in the incident, was largely the same in respect of both shoulders. It referenced the time gap in experiencing and reporting shoulder symptoms after the incident, the medical significance of that gap, and whether Endone consumption during the period satisfactorily explained the gap. On the evidence, the first recorded mention of symptoms in the shoulders, following the incident, was in August 2019. The appellant referred to when he transitioned from Endone and became conscious of pain in the shoulders. When he mentioned this to Dr Kalsi the doctor referred him for a scan of his shoulders (see the statement excerpt at [34] above). The Member referred to the note of Dr Kalsi on 15 August 2019, “bilateral shoulder pain”.[67]
[67] Reasons, [43]–[45].
The Member quoted from Dr Kalsi’s report dated 21 August 2020, which referred to a previous scan of the left shoulder in 2016 and previous reconstructions of the right shoulder.[68] Dr Kalsi’s references were sometimes vague regarding which shoulder he was speaking of, but this was not the fault of the Member, who could only do her best with the evidence in front of her. The Member referred to the fact that Dr Bodel was not told about the previous left shoulder problems.[69] This was relevant. The adequacy of Dr Bodel’s history, and whether it afforded an appropriate foundation for the doctor’s opinion, was, as the respondent submits, an issue in the case.[70] The mention of the deficiency, in the history of left sided symptoms, does not indicate the Member was somehow unaware of the need to consider ‘injury’ in the context of alleged bilateral symptoms. She clearly did so.
[68] Reasons, [50].
[69] Reasons, [54].
[70] See respondent’s submissions, [18]–[19].

The appellant failed on the issue of ‘injury’ because the Member preferred the evidence of Dr Deshpande, in the respondent’s case, to that of Dr Bodel on which the appellant relied. The Member discussed Dr Bodel’s report in detail, including the extent to which the history on which the doctor relied provided a ‘fair climate’ for the expression of his opinion.[71] The Member noted that Dr Bodel was not told about the previous left shoulder problems.[72] Dr Bodel did not record a history that the shoulder problems were not noticed until August 2019, “some four months after the subject injury”.[73] Dr Bodel was not given the history that the delay in noticing symptoms was due to Endone masking the symptoms. The Member said that consequently, Dr Bodel did not address these matters in his opinion, he simply said the shoulders were injured on 20 April 2019.[74] The Member said:
“These omissions from the history undermine the weight which can be afforded to Dr Bodel’s opinion when I weigh his opinion with the other evidence before me. The history given to Dr Bodel, absent these salient facts, does not provide a fair climate for his opinion.”[75]
[71] Reasons, [54]–[69].
[72] Reasons, [54], [67].
[73] Reasons, [63], [68].
[74] Reasons, [69].
[75] Reasons, [69].
The Member then considered the opinion of Dr Deshpande on which the respondent relied.[76] Dr Deshpande recorded the history of a delay in experiencing symptoms in the shoulders, which the appellant attributed to the consumption of Endone.[77] The Member noted Dr Deshpande’s opinion that “it took him several months to complain about the shoulders”. Dr Deshpande said that if there were such symptoms he would have expected the appellant to have mentioned it to his treating doctor. Dr Deshpande said that the shoulder symptoms were “not related to the work injury”.[78] Dr Deshpande said that “work is not a substantial cause as his shoulder symptoms appeared months after the injury at work”.[79] The Member referred to inconsistencies between the appellant’s description of when he noticed shoulder symptoms in the context of his consumption of Endone, in light of Dr Kalsi’s clinical notes.[80] The Member concluded:
“81. The history recorded by Dr Bodel is absent these salient facts, such as, the delay in noticing symptoms, such delay being explained on the basis that Endone masked the symptoms and when ceased the symptoms were ‘immediately noticed’ and treatment sought, and the history of the left shoulder problems. Because of these omissions from the history, I cannot be satisfied, when regard is had to the totality of the evidence, that the history given to Dr Bodel provides a fair climate for his opinion. When I weigh all the evidence in the balance, I prefer the opinion of Dr Deshpande whose opinion takes account of [the] four month delay in reporting of the symptoms.
82. I have to have regard to the totality of the evidence and weigh the evidence in the balance to come to a decision whether it is more likely than not the applicant injured his shoulders on 20 April 2019. When I weigh all of the evidence in the balance I am not satisfied on the balance of probabilities, for the reasons expressed throughout, that the applicant suffered injury to his shoulders on 20 April 2019. Accordingly, there will be an award for the respondent.”
[76] Reasons, [71]–[80].
[77] Reasons, [71].
[78] Reasons, [76]–[77].
[79] Reasons, [78].
[80] Reasons, [80].
The submission that the Member was distracted from her real task of determining whether there was bilateral shoulder injury is without merit. This issue was decided by reference to the medical and lay evidence. Clear reasons were provided for the conclusion the Member reached.
Ground No 2 fails.

GROUND NO. 3

Appellant’s submissions

The appellant argues there was factual error in determining that he did not injure his shoulders in the course of his employment. He states that Grounds Nos. 1 and 2 allege errors of law. Ground No. 3 alleges factual error. The appellant states that he relies, in respect of Ground No. 3, on the submissions he makes in support of Grounds Nos. 1 and 2.

Respondent’s submissions

The respondent refers to s 352(5) of the 1998 Act, and to Raulston and associated authorities dealing with the scope of appeals pursuant to s 352.

Consideration

The nature of an appeal pursuant to s 352(5) of the 1998 Act, and the restrictions on the scope of such an appeal, are summarised at [12] to [16] above. In dealing with Grounds Nos. 1 and 2, I have sought to engage with the substance of the submissions made in support of those grounds and have concluded that those grounds do not succeed. For the reasons given in dealing with Grounds Nos. 1 and 2, and having regard to the established principles governing appeals pursuant to s 352(5), Ground No. 3 fails.

CONCLUSION

The appellant’s grounds of appeal have all failed. It follows that the appeal does not succeed.

DECISION

The Certificate of Determination dated 1 December 2020 is confirmed.

Michael Snell
DEPUTY PRESIDENT

4 June 2021