Mars Australia Pty Limited v Knight - [2024] NSWPICPD 78

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Mars Australia Pty Limited v Knight [2024] NSWPICPD 78
APPELLANT:	Mars Australia Pty Limited
RESPONDENT:	Anthony Knight
INSURER:	Self-insured
FILE NUMBER:	A1-W5655/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	2 December 2024
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination dated 1 December 2023 is amended to substitute in order 1 the date “18 July 2022” for “20 September 2021”. 3. The Certificate of Determination is otherwise confirmed.
CATCHWORDS:	WORKERS COMPENSATION – adequacy of reasons – reasons delivered ex tempore – consideration of medical evidence – treatment of medical evidence – assessment of incapacity – discretion in refusing cross examination in Commission proceedings
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Catsanos SC, counsel
Bartier Perry Lawyers
Respondent:
Mr R Goodridge, counsel
Firths - The Compensation Lawyers
DECISION UNDER APPEAL:	Knight v Mars Australia Pty Limited, 1 December 2023, W5655/23
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	1 December 2023

INTRODUCTION

This appeal is from a determination of the Personal Injury Commission (the Commission) dated 1 December 2023.
The Member heard the matter on 30 October 2023 and delivered oral reasons for determination on 27 November 2023.
A Certificate of Determination dated 1 December 2023 was issued by the Commission, confirming the oral determination.
The Certificate of Determination provided:
“The determination of the Commission in this matter is as follows:
1. Pursuant to s 4(b)(ii) of the Workers Compensation Act1987 (the 1987 Act), the [respondent] sustained injury to both knees as a result of his employment with the [appellant], deemed to have happened on 20 September 2021, pursuant to s 16 of the 1987 Act. The [respondent’s] employment with the [appellant] was the main contributing factor to the aggravation of the disease process of both his knees.
2.     Pursuant to s 36(1) of the 1987 Act, the [appellant] to pay the [respondent] weekly compensation for the period 18 July 2022 to 16 October 2022, at the rate of $1,792.51 per week.
3.     Pursuant to s 37(1) of the 1987 Act, the [appellant] to pay the [respondent] weekly compensation for the period 17 October 2022 to 27 November 2023, at the rate of $1,509.48 per week.
4.     Pursuant to s 60 of the 1987 Act, the [appellant] to pay for the costs of and incidental to the bilateral knee replacements recommended by Dr Lyons, including the surgery on 4 April 2023.”
The appeal seeks to have the Certificate of Determination and award of compensation of the Member dated 1 December 2023 revoked and in lieu thereof an award in favour of the appellant entered. In the alternative, the appellant seeks to have the matter remitted for redetermination by an alternative Member of the Commission.
For the reasons that follow, the appeal is dismissed and the Member’s determination is confirmed.

PRELIMINARY RULINGS AND DIRECTIONS

The Member made a number of preliminary rulings.
Firstly, he ruled on the appellant’s Application to Admit Late Documents dated 27 October 2023. The appellant sought leave to rely on a report by Dr Breit dated 27 October 2023. This was a second report from Dr Breit. In the event, the Member refused to allow the appellant to rely on the report. There is no appeal from that ruling.
Secondly, the Member ruled that the appellant should not be permitted to cross-examine Dr Dias. The appellant appeals against that ruling.
Thirdly, the Member gave the respondent leave to amend the Application to Resolve a Dispute (ARD) to allege that the deemed date of injury was 14 September 2019.
Fourthly, he granted leave to the appellant to cross-examine the respondent.

BACKGROUND FACTS AND THE MEMBER’S STATEMENT OF REASONS

Following a hearing on 30 October 2023, the Member directed that the parties file written submissions. The parties duly complied with that direction and on 27 November 2023 the Member delivered oral reasons for his determination.
The Member’s oral reasons, when transcribed, are 91 pages and are difficult to follow and understand. The treatment of the evidence and submissions is discursive; the reasoning process on occasions unclear and the findings supporting the Member’s determination are not always easily identified.
What follows is a summary of the most important facts and findings taken from the reasons.[1] Mr Knight, the respondent worker, a qualified electrician, was employed by the appellant, Mars Australia Pty Limited (Mars) from 4 September 2000 to 13 September 2019 as an operations technician.
[1] Transcript of oral reasons 27 November 2023 (reasons). The transcript references in this decision are to the official Commission transcripts and not the transcripts produced by the appellant. By proceeding in this manner, I mean no disrespect to the appellant’s solicitor.
The respondent’s case was that he had sustained a disease injury within s 4(b)(i) or (ii) of the 1987 Act as a result of the nature and conditions of employment with the appellant. The injury was alleged to be caused by performing heavy, repetitive, physically demanding duties over 20 years. The date of injury was alleged to be 14 September 2019.
After leaving the appellant’s employment pursuant to a voluntary redundancy program, the respondent was employed by Tip Top for the period 23 November 2020 to 4 February 2021, by Stephen Smith Contracting from 16 October 2021 to 1 July 2022 and by Agrana Fruit from 4 July 2022 to 17 July 2022.
Arthroscopic surgery was performed on the right knee on 20 April 2009 and on the left knee on the 27 June 2011. Bilateral knee replacement surgery was undertaken by Dr Lyons in April 2023.
The respondent’s evidence in chief was given in three statements.
The Member paraphrased the contents of these statements. The important evidence from the statements is summarised in the following paragraphs.
The respondent gave evidence that before commencing employment with the appellant he had no issues, disabilities or difficulties with his knees.
The work with the appellant was extremely physical and physically demanding on the knees. The respondent was required to fix machinery, namely a palletiser. To do this he was required to get into the machine itself on his hands and knees, reorganise the jammed items and unjam the machine. He estimated he would have to do this about 30 times a day. This would take 5 to 10 minutes.
The machine was at the top of a stairway and the respondent was required to ascend and descend the stairway each time he had to unblock the machine.
The electrical work was performed in a squatting or kneeling position. This occurred at least three times a day.
The respondent said that he had right knee problems caused by jogging in 2008 and an arthroscopy was performed in April 2009 resulting in a few days off work. He returned to suitable duties for 1 to 2 weeks. He had a further problem with the left knee in 2011 resulting in arthroscopy and again a short period of suitable duties ensued.
From 2011 to 2018 the respondent said that he had intermittent pain in the knees. He said that he would visit the doctor. In 2018, he said that he had left knee pain which worsened and became regular pain at the end of each working day. The respondent did not notify his employer of this developing pain.
13 September 2019 was the respondent’s last day of work. At that time, he had bilateral knee pain. This was noted on the medical exit assessment.
On 13 October 2019, the respondent was admitted to Wyong Hospital. This was an admission for a psychological condition. The medical notes included the statement that the respondent was having difficulty adjusting to his unemployment. There was no mention of any problem with his knees.
The respondent did not work between 13 September 2019 and November 2020.
In November 2020 he obtained employment through Forsyth Recruitment with Tip Top Bakeries. This was full-time work operating a packing machine. He did this work from a seated position. It was not necessary for him to rise unless the machine became blocked or jammed. He was not required to go up and down stairs. There were about 10 blockages per day. After about 10 weeks a supervisor noticed that the respondent was limping. Thereafter he was advised that his services would not be required.
The respondent said that the Tip Top Bakeries work did not aggravate the condition of his knees, that it was the lightest employment he could possibly find. Further, the respondent’s evidence was that it was the pre-existing knee condition that caused him to lose the job with Tip Top Bakeries.
The respondent obtained further work with Stephen Smith Contracting. This was cleaning work. He drove a light commercial van. The work was done for the Department of Housing. The respondent’s evidence was that 70% of the work was driving and 30% was light cleaning work. He had an offsider to do the heavier cleaning. He did this from November 2021 until July 2022 when his knee condition deteriorated, and he was unable to continue.
The respondent did 2 weeks’ work with Agrana Fruit driving a forklift. After 2 weeks he could not continue.
In the statement of 4 April 2023, the respondent dealt with the application for employment with Forsyth Recruitment. He said he gave a negative response to the question as to whether there was a prior injury because he believed that if he disclosed that he had a prior injury he would not get employment.[2] He denied that he gave up the employment with Tip Top because he was sick of doing night shifts.[3]
[2] Reasons, 14.5.
[3] Reasons, 14.20.
He said he took voluntary redundancy from the employ of the appellant because he was having difficulties performing his duties due to the knee injury.[4]
[4] Reasons, 14.25.
In the statement of 6 July 2023, the respondent said that the work with the appellant was unlike any of the other work he did because it was much more physically demanding.[5] He said the work with Tip Top was less arduous. He said that he stopped doing that work after about 10 weeks. He said the work with Stephen Smith was not physically demanding and the work with Agrana Fruit was two weeks of very light duties.
[5] Reasons, 14.28.
The respondent said that he assisted his daughter’s partner in a roofing business by driving the partner to work because the partner had lost his licence. He had not performed any roofing work. He said that he worked with an entity called Bajek for one day doing care work but that this sort of work did not suit him.
The respondent was cross-examined pursuant to leave granted by the Member. The Member said of the cross-examination:
“The [respondent] also gave evidence in cross-examination and he also gave evidence in re-examination. Generally speaking … in my view, the [respondent’s] evidence in cross-examination was given in a forthright way. It seemed to me that he was doing his best to assist the Commission and there were matters raised by the [appellant] which I’ll address at a later stage but in general I accept the credit of the [respondent] generally speaking and in particular I note that he wasn’t challenged in respect of the duties that he performed at – whilst in the employ of the [appellant].”[6]
[6] Reasons, 17.8–18.
The Member referred to notes prepared by the appellant. In 2009 after the respondent’s knee arthroscopy the note said the knee was “fine” but there was some pain when the respondent ran. From this the Member inferred that “he had a reasonably good outcome”.[7]
[7] Reasons, 21.22–24.
Prior to leaving the appellant’s employ, an exit document dated 19 August 2019 was prepared. The respondent provided a series of negative responses with respect to injury and disability. The Member said the exit document contained an entry “osteoarthritis”.[8]
[8] Reasons, 24.15–27.
The Member referred to the Forsyth Recruitment documents. The respondent had declared in those documents that he was not disabled or suffering from any injury or disability.
The Member quoted Dr Lyons’ opinion from the report of 13 December 2022 that the work at Mars “precipitated Mr Knight’s meniscal tears and has subsequently been a substantial contributing factor to the development of his arthritis.”[9]
[9] Reasons, 35.25.
The Member was referred to the report of the radiologist, Dr Lannan, dated 21 September 2021. Having quoted from the report, the Member says:
“I do not have before me a study of 2019 or I was not taken to it at least … I do not make anything of this document as it would be necessary to have expert comment on the differences in that regard and how that might relate to employment and there was no expert comment in that sense in this regard.”[10]
[10] Reasons, 38.24–30.
The Member referred to Dr Dias’ reports of 8 August 2022 and 10 July 2023, saying that Dr Dias noted that the worker developed increased bilateral pain which “worsened and progressed from being intermittent and mild to being chronic to moderate and eventually unremittingly severe and he began consulting his general practitioner Dr Cavanagh intermittently from 2016 onwards, complaining of bilateral worsening knee pain.”[11]
[11] Reasons, 41.15–21.
The Member refers to the cross-examination and challenge to the respondent on the basis that there was no note in Dr Cavanagh’s records of the respondent having complained of knee pain from 2016. The Members says:
“I accept that he did complain to Dr Cavanagh of knee pain over the years and this was not recorded. In my view, this is not fanciful.”[12]
[12] Reasons, 42.11–13.
The Member refers to the entries in 2019 with respect to knee pain and to the prescriptions for Nurofen Plus. He says Nurofen Plus is a prescription for knee pain.
The Member refers to Mason v Demasi[13] and observes that Dr Cavanagh was a busy general practitioner who may not have been fulsome in recording what he was told by the respondent. The Member says:
“I accept the [respondent’s] explanation that he did complain over the years to Dr Cavanagh and I apply the caution in Mason v Demasi in that acceptance.”[14]
[13] [2009] NSWCA 227 (Mason v Demasi).
[14] Reasons, 43.17–19.
The Member observes that Dr Dias’ history, included in the history of complaint to Dr Cavanagh, was sound.[15]
[15] Reasons, 43.26
The Member accepts the respondent’s evidence that the work with Tip Top was lighter than the work with Mars.[16] He also accepts that Dr Dias found that the Tip Top job caused a “transient exacerbation” of the bilateral knee pain.[17]
[16] Reasons, 45.10.
[17] Reasons, 46.1.
The Member deals with the evidence of Dr Breit, noting that he declined to admit the report of 27 October 2023. So far as the report of 19 January 2022 is concerned (which was admitted), the Member said:
(a)    there was no detail of the employment duties performed with Mars;
(b)    part of the report was non-responsive, in that in response to a question the author said “see the body of the report”;[18]
(c)    the report did not implicate the employment with Tip Top as being contributory of the respondent’s condition,[19] and
(d)    Dr Breit’s opinion was that the incapacity which was not disputed was not work related.[20]
[18] Reasons, 53.36–54.1.
[19] Reasons, 55.17.
[20] Reasons, 55.27.
The Member said that he did not accept Dr Breit’s views in relation to causation.[21] He said that was because there was no detailed employment history[22] and the Member preferred the history obtained by Dr Dias. Furthermore, according to the Member, Dr Breit failed to explain why employment duties did or did not relate to the respondent’s condition.
[21] Reasons, 56.7–10.
[22] Reasons, 56.10–17.
The Member said that he preferred the evidence of Dr Dias for the following reasons:[23]
(a)    Dr Dias had a detailed history of the respondent’s duties;
(b)    Dr Dias had detailed notes of the arthroscopy procedures;
(c)    there was a detailed note of the onset of symptoms;
(d)    there was a detailed note of the subsequent employment, and
(e)    the Member regarded Dr Dias as having “reached a reasoned and considered opinion as to these issues which, in my view, Dr Breit did not.”[24]
[23] Reasons, 57.10.
[24] Reasons, 57.20.
In passing, the Member noted that Dr Breit was of the opinion that the subsequent employment was not related to the bilateral knee condition in any way. That was an opinion which the Member observed accorded with his own conclusion.[25]
[25] Reasons, 57.25.
The Member rejected the appellant’s submission that there was a significant deterioration at some point after the respondent left the appellant’s employment on the basis that no medical expert provided an opinion to that effect.[26]
[26] Reasons, 57.30.
The Member did not accept Dr Breit’s opinion that while the respondent’s capacity for work was limited, that incapacity was not due to the injury at work.[27]
[27] Reasons, 58.16–20.
The Member dealt with the respondent’s credit. He said he found the respondent to be a forthright witness who did his best to assist the Commission. He was not challenged as to the nature of his duties in the employ of Mars. The Member said that he accepted the respondent’s evidence as to the duties described in the statement between 2000 and 2019.
The Member said that he accepted the respondent’s explanation as to why he had not provided notice of the claim for compensation to the appellant, namely, that the respondent did not realise that his ongoing persisting pain that he felt over the years amounted to an injury.[28]
[28] Reasons, 62.9–13.
The Member observed there was no particular motive for the respondent not to be truthful or not to provide accurate information.[29] The Member said that he thought the exit documents were inconsistent internally.[30] He accepted the respondent’s explanation for the misleading information on the Forsyth Recruitment documentation.[31]
[29] Reasons, 63.5.
[30] Reasons, 63.19.
[31] Reasons, 66.15.
The Member said that as a matter of common sense the injury was an aggravation of the osteoarthritic condition of both knees due to the nature of the respondent’s employment.[32]
[32] Reasons, 70.14–21.
He rejected the submission that Dr Lyons’ history was inadequate. The Member said that Dr Lyons’ report was that the respondent underwent the knee arthroscopies with Dr Patterson “whilst working for the [appellant] as an operation technician”.[33] The Member said that Dr Lyons had not assumed the surgeries were occasioned by the employment with the respondent.[34]
[33] Reasons, 71.27.
[34] Reasons, 71.33–34, 72.5.
In relation to Dr Lyons’ comment that the work “precipitated” the meniscal tear, the Member did not regard that as fatal to the doctor’s opinion. He said:
(a) strict compliance with evidentiary rules is not required,[35] and
(b) all that is required is a “fair climate” for the opinion.[36]
[35] Citing Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
[36] Citing Paric v JohnHolland (the Member did not identify whether he was referring to the Court of Appeal decision at [1984] 2 NSWLR 505 presumably at 509–510, or the High Court decision at 62 ALR 85.
He found that Dr Lyons had a detailed description of work duties and that there was a fair climate for his opinions.[37]
[37] Reasons, 73.23–24.
The Member did not accept that the respondent’s condition deteriorated after leaving the employ of the appellant.[38]
[38] Reasons, 74.5–9.
The Member accepted the evidence of Dr Dias.[39] Furthermore, the Member accepted the evidence of Drs Dias and Lyons that the worker had no capacity for employment.[40]
[39] Reasons, 75.
[40] Reasons, 77.34.
The Member said that he was unable to make a finding that the respondent had no capacity for work or any restriction on his capacity for work in the period before September 2021 because of the absence of any medical evidence.[41] On this basis he made an award from 18July 2022 on the basis that the respondent had no capacity for work after leaving the employ of Agrana Fruit.[42]
[41] Reasons, 82.3–7.
[42] Reasons, 82.26–8.

The Member concluded the reasons by making a finding of injury pursuant to s 4(b)(ii).[43]
[43] Reasons, 83.21.
He found the deemed date of injury to be 18 July 2022, being the first date of economic incapacity.[44]
[44] Reasons, 83.30.
The Member accepted the worker’s evidence that the failure to bring a claim as required by s 261 should be excused under s 261(4) on the basis that the respondent did not realise he had a workers compensation claim until he consulted with his solicitor and obtained the first medical certification on 1 December 2021.[45]
[45] Reasons, 84.5–10, 86.10–15.
The Member made an award with respect to s 60 expenses.[46]
[46] Reasons, 86.23, 89.25.

GROUNDS OF APPEAL

The appellant seeks to agitate three grounds of appeal, namely:
Ground 1 – That the Member erred in law in failing to give proper and adequate reasons.
Ground 2 – That the Member’s decision is affected by several errors of fact and law, namely:
(a)     that the Member disregarded the radiological evidence of Dr Lannan contained in a report dated 21 September 2021;
(b)     that the Member erred in his treatment of the evidence of Dr Lyons;
(c)     that the Member erred in his conclusion as to the worker’s incapacity;
(d)     that the Member erred in his treatment of the evidence relating to the worker’s attendance at Wyong Hospital on 13 October 2019, and
(e)     that the Member erred in his treatment of the evidence relating to the absence of complaint of knee problems in the clinical notes of Dr Cavanagh.
Ground 3 – That the Member erred in the exercise of his discretion and committed error of law in refusing the appellant’s application to cross-examine Dr Dias.

TIME

The appellant says that the Certificate of Determination was dated 1 December 2023 and that the appeal was brought within 28 days as required by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent makes no comment in relation to that. The appeal is brought within time.

MONETARY THRESHOLD

The appellant submits that the award in aggregate exceeds the monetary threshold prescribed under s 352(3) of the 1998 Act. This is not disputed by the respondent. The threshold requirement is met.

ON THE PAPERS

The appellant submits that it is appropriate for the appeal to be dealt with by way of oral hearing for the following reasons:
(a)    the judgment of the Member is discursive, difficult to follow, open to ambiguity and not easily referenced, making it correspondingly difficult to encapsulate arguments in writing in an ordered and cohesive way;
(b)    the appeal in large part challenges the treatment of evidence, as well as complaints as to the Member’s exercise of his discretion not to allow cross-examination manifesting in a denial of procedural fairness, and
(c)    the appellant contends that an oral hearing is in the interests of justice, would be conducive to effectively dealing with the arguments raised and would similarly assist the Presidential Member in addressing areas of contest, while avoiding the potential confusion given the challenges thrown up by the form of judgment.
The respondent opposes an oral hearing and submits that for the reasons that follow it is appropriate for the appeal to be dealt with on the papers:
(a)    the issues are not complex;
(b)    the parties were represented by experienced counsel who each prepared and submitted written submissions before the Member;
(c)    neither counsel suggested the matter was of such complexity that it should not be dealt with by written submissions below;
(d)    the appellant is represented by senior counsel. The funding arrangements do not permit the worker/respondent to have equal representation. The appellant would have an unfair advantage over the respondent given the inequality to have access to senior counsel available and to make oral argument;
(e)    the purported transcript of the Member’s reasons submitted by the appellant was not prepared by the Commission or either party (subsequently an official transcript has been made available to the parties), and
(f)    pursuant to s 354(1) and (6) of the 1998 Act, the appeal is to be conducted with as little formality and technicality as the proper consideration of the matter permits and the Commission should exercise functions under the Act without holding any conference or formal hearing.[47]
[47] Citing Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244.
The respondent then refers to and quotes from what it describes as “Practice Direction PIC 6” and “Practice Direction PIC 1”, however it is apparent from the submissions that the documents being quoted are in fact former Workers Compensation Commission Practice Directions which are no longer in force. The equivalent provisions are paragraph [16] of Procedural Direction WC3 which provides that an appeal will be determined ‘on the papers’, “[i]f the Presidential member is satisfied that sufficient information and submissions have been provided in respect of the appeal” and paragraph [8] of Procedural Direction PIC2, which lists the factors to be considered when determining whether a matter should be determined ‘on the papers’.
The appellant filed submissions in reply concluding that:
“The appellant does not accept that the matter is not complex, however acknowledges in any event that the Presidential Member is well able to deal with complex issues.”[48]
[48] Appellant’s submissions in reply, [5].
It is unnecessary to deal with the parties’ detailed submissions on this issue.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing.
I do not propose to deal with the detailed submissions on this point advanced by the parties, except to say that, contrary to the appellant’s submission, the discursive nature of the judgment persuades me that I am much assisted by the careful written submissions advanced by counsel for each party. I am satisfied that the material and the submissions of the parties provide me with sufficient information to enable the appeal to be determined on the papers. I intend to proceed accordingly.

NATURE OF THE APPEAL

Section 352 of the 1998 Act relevantly provides:
“(5) 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.”

GROUND 1 – REASONS COMPLAINT

Appellant’s submissions

The appellant commences its submissions with a short four paragraph commentary with respect to the reasons for decision overall. The appellant quotes from a passage in the Member’s reasons and says: “It is not at all clear what the Member is determining or seeking to convey in that paragraph.”
The appellant then submits:
“Ultimately, the Member decided that the worker was entitled to recover compensation from the appellant by reason of a disease injury pursuant to s 4(b)(ii), being the aggravation etc of a disease. In doing so, the Member appears to have found a deemed date of injury being 18 July 2022, whereas the Certificate of Determination finds a deemed date of injury of 20 September 2021. The Member found that injury to result from employment with the appellant, notwithstanding the fact that the worker had ceased employment by way of a voluntary redundancy on 13 September 2019 and had given evidence that, but for the redundancy, he would have continued to work for the appellant. Subsequent to the cessation of employment with the appellant, the worker, as outlined in the appellant’s submissions at first instance, engaged in three subsequent periods of employment, two of which were unequivocally in the appellant’s submission, provocative of symptoms.”[49]
[49] Appellant’s submissions, [21].
The appellant then addresses Ground 1 as to the reasons of complaint specifically. The appellant refers to Pollard v RRR Corporation Pty Limited[50] in which McColl JA summarises a number of authorities.
[50] [2009] NSWCA 110 (Pollard), [56]–[67].
The appellant submits:
“The Member failed to provide adequate and discernible reasons for his findings as to the deemed date of injury and how it was concluded that compensable injury resulted from employment with the [appellant], in the face of what the appellant says, were two subsequent periods of provocative employment coupled with an objective deterioration in symptoms in the years after the worker left the [appellant’s] employ.”[51]
[51] Appellant’s submissions, [24].
The appellant submits that the Member’s finding is unclear as to whether the actual deemed date of injury is 20 September 2021 or 18 July 2022.
The appellant complains that the Member appears to reject the proposition that the subsequent employment was causative[52] but he does not in any “meaningful way” engage with the appellant’s submissions at first instance. Rather, the Member simply does not accept the submissions advanced by the appellant (of a tangible worsening of the worker’s knee problems in conjunction with subsequent employment) seemingly on the basis of the opinions of Dr Dias and Dr Lyons.
[52] Reasons, 73–74.
The appellant submits, “that hardly constitutes adequate reasons or disposition of the issue, as neither doctor had, nor dealt with, the various propositions and evidence relied upon by the appellant in demonstrating a significant change in status of the problems after cessation of work with the [appellant] in 2019.”[53] The appellant submits that this is why the appellant ought to have been allowed to cross-examine Dr Dias and that:
“Otherwise, the Member’s reasons are logically inconsistent on the facts of this case and it is effectively unexplained as to how the worker’s date of injury with the [appellant] could occur two or perhaps nearly three years after he ceased that employment.”[54]
[53] Appellant’s submissions, [27].
[54] Appellant’s submissions, [29].
The appellant reiterates the request for an oral hearing.

Respondent’s submissions

The respondent submits that he suffered either a s 4(b)(i) or 4(b)(ii) injury from the Mars employment which was the main contributing factor. No doctor opined that any employment other than Mars was the main contributing factor to the disease or to its aggravation, acceleration or deterioration.
The deemed date of injury is a legislative fiction that is determined by strict application of the legislation. It can only be displaced by the employer establishing that a later employer was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
The respondent submits “applying s 16(1)(b) and s 4” transient increases in symptoms are irrelevant to the determination of the deemed date of injury.
There was no expert opinion evidence that opined that any employment other than that at Mars was the main contributing factor. Mars, if it wished to allege further injury, carried the burden of proof on that issue.
The respondent repeats its submissions made to the Member. The effect of those submissions was that any transient increase in symptoms was not relevant to the deemed date of injury.
The appellant’s submission, that the two subsequent periods of “provocative employment” resulted in “objective deterioration” in the symptoms after the worker left the appellant’s employ, introduces two terms which are not used in and are foreign to the legislation.
The respondent submits:
“The appellant did not establish that a later employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the disease – s 16(1)(b) (noting that the definition requires both ‘a substantial contributing factor’ and ‘the main contributing factor’ as the s 4 definition is incorporated. This renders the term a substantial contributing factor nugatory as it is a less stringent test; see discussion AV v AW [2020] NSWWCCPD 9 by Snell DP at [69]–[78]).”[55]
[55] Respondent’s submissions, [30].
The respondent submits:
“Introducing the new terms provocative employment and objective deterioration [is] unhelpful to the application of the statutory scheme.
Injury is a defined term. Deterioration does not mean or equate to injury (as defined). The symptoms or an effect of an injury, particularly a disease injury, may or may not progress or regress after the date of injury. Such progression or regression has no bearing on the date of injury.”[56]
[56] Respondent’s submissions, [33]–[34].
Dealing with the submissions with respect to the radiologist’s report of Dr Lannan dated 21 September 2021, the respondent submits that:
“… Such progression or regression has no bearing on the date of injury.
The appellant does not in its chronology or in its submissions identify the comparative dates between employment at Mars and the 2019 scan mentioned by Dr Lannan. Mr Knight left employment with Mars on 14 September 2019. There has been no attempt to correlate the date Mr Knight ceased employment at Mars with the date of the scans. Even if, for the sake of argument, the scans were relevant to the question of date of injury, they would prove nothing. Such deterioration may have occurred between the date of the scan and the date Mr Knight left Mars. In short, the appellant’s submissions are an absurdity upon an absurdity.”[57]
[57] Respondent’s submissions, [36]–[37].
The respondent addresses the statutory definition in s 4 of “injury” and subss (1)(a) and (b) of s 16. He says:
“The incorporation of the defined term injury within s 16 incorporates the requirements of s 4 and in particular the requirement that ‘injury’ ‘means’ ‘the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’.”
The respondent repeats a summary of his previous submissions.

Appellant’s submissions in reply

The appellant submits that the respondent’s submission that the appellant has to establish affirmatively that a later employment was the main contributing factor to the contraction or aggravation, acceleration, exacerbation or deterioration of a disease misunderstands the onus and the statute.
Firstly, the Member had to decide the nature of the injury suffered by the worker. In the circumstances of this matter this involved deciding whether the worker contracted a disease (s 4(b)(i)) or aggravated disease (s 4(b)(ii). In either event, the deemed date of injury would in the circumstances of this case be the date of incapacity: ss 15 and 16 of the 1987 Act.
If the worker suffered a contracted disease, compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due (s 15(1)(b)). If the injury was the aggravation of a disease, compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation etc (s 16(1)(b)).
Contrary to the submissions of the respondent at [15(b)], the appellant did not bear any onus to prove injury within the meaning of s 4 with the subsequent employers. Rather, if the worker established a disease injury under s 4 against the appellant, it was then necessary for the worker to establish that the appellant was the employer who last employed the worker in relevant employment in accordance with ss 15 or 16 as the case may be.[58]
[58] Citing Bekkers v State of New South Wales [2018] NSWWCCPD 46 (Bekkers), [70]–[78].
The appellant submits:
“12. As previously outlined in the appellant’s primary submissions, the Member concluded that the [worker] suffered injury with the appellant falling under s 4(b)(ii). However again as previously addressed, the Member anomalously found two different deemed dates of injury. The deemed date of injury was well after the cessation of employment with the appellant. On any view of things, the deemed date of injury occurred subsequent to employment with Tip Top Bakeries, and on the later of the two deemed dates found by the Member, it occurred after the worker’s employment with Agrana Fruits.
13. Contrary to the worker’s approach, in accordance with s 16 the deemed date of injury operates to fix the date from which the Commission must determine the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation etc.
14. Even on the evidence of Dr Dias and for the reasons previously advanced in detail, the worker’s employment with Tip Top Bakeries aggravated or exacerbated his pre-existing degenerative changes. It follows axiomatically that such employment was a substantial contributing factor to that aggravation or exacerbation. Alternatively, Agrana Fruits was the last employer responsible for aggravation etc. of the worker’s degenerative changes.”
The worker’s submissions fail to grapple with or appreciate the effect of the deeming provisions of s 16 and erroneously import concepts of main contributing factor into aggravation etc. caused by later employment. The worker also fails to address the shortcomings of the Member’s reasons set out in the appellant’s primary submissions.
It is the absence of those reasons in the context of the evidence and submissions in the dispute before the Member which infects the decision with error of law.

Consideration

The appellant’s complaints with respect to the Member’s statement of reasons are:
(a) the ambiguity with respect to the deemed date of injury, and
(b) the adequacy of the reasons declining to accept the appellant’s submissions that the respondent’s knees showed a tangible worsening in conjunction with subsequent employments.
The appellant submits that the Member failed to provide adequate or discernible reasons for his finding as to the deemed date of injury and how it was concluded that compensable injury resulted from employment with the appellant in the face of what, the appellant says, were two subsequent periods of provocative employment coupled with an objective deterioration in symptoms in the years after the worker left the appellant’s employ.
For the reasons that follow, neither complaint is upheld, and Ground 1 of the appeal is dismissed.
Order 1 in the Certificate of Determination identifies the deemed date of injury to be 20 September 2021, however, as will be demonstrated, this does not accurately reflect the Member’s finding in the statement of reasons.
Section 294(2) of the 1998 Act requires a brief statement to be attached to the Certificate of Determination setting out “the Commission’s reasons for the determination”.
Rules 78(2) and (3) of the Personal Injury Commission Rules 2021 amplify this requirement as follows:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
The appellant does not refer to s 294(2) or to r 78. The appellant directs attention to the decision of McColl JA in Pollard observing that “the principles are well known and applied regularly in the Commission”.

The appellant submits that it is not clear what the Member’s finding was as to the actual deemed date of injury, whether it was 20 September 2021 or 18 July 2022. However, that is not a fair representation of the Member’s reasons.
At reasons 83.20–34, the Member says this:
“I find pursuant to section 4(b)(ii), … that the [respondent] sustained as a result of his employment with the [appellant] injury in the form of an aggravation of – aggravation, exacerbation, deterioration of a pre-existing degenerative disease condition of both knees as a result of his employment with the [appellant] and pursuant to section 16 of the 1987 Act I find that the deemed date of injury is in this regard being the first date of incapacity that I’ve found for the purposes of weekly compensation being economic incapacity as distinct from an incapacity that does not – economic incapacity as resulting in – as having regard to earlier employment and that deemed date of injury is 18 July 2022.”
The Member’s decision was delivered on 27 November 2023, and he did not have access to the decision of the Court of Appeal in Haddad v The GEO Group Australia Pty Limited,[59] which was published on 5 June 2024.
[59] [2024] NSWCA 135 (Haddad).
That decision clarifies the operation of the deeming provisions in ss 15 and 16 of the 1987 Act. Although Haddad dealt with s 15, it is applicable to the operation of s 16.
The principle articulated by Griffiths AJA (Kirk and Stern JJA agreeing) is as follows:
“As explained in [Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166], the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity.”[60]
[60] Haddad, [80].
It is plain from the passage of the reasons quoted above that the Member directed his attention to the correct principle in identifying the deemed date of injury pursuant to s 16(1)(a)(i) of the 1987 Act.
Confirmation that the deemed date of injury intended by the Member was 18 July 2022 is apparent from a consideration of the Member’s discussion of the issue between reasons 81.5–83.30.
The Member says that the first reference to incapacity for work is in Dr Cavanagh’s referral letter dated 20 September 2021.[61] The subsequent discussion of the evidence concludes “the period of total incapacity … [commences] after the cessation of employment with Agrana Fruit and that is from 18 July 2022, there being insufficient evidence for me to – medical evidence …, for me to make a finding as to capacity prior to that date.”[62]
[61] Reasons, 81.9.
[62] Reasons, 82.18–24.
The Member discusses the evidence and makes a finding with respect to the respondent’s incapacity. The reasoning process is apparent at reasons 81–83. Although the Member did not refer to any controlling authority or legal precedent, he applied the correct legal principle to determine the deemed date of injury to be 18 July 2022.
It will be necessary to correct the deemed date of injury appearing in the Certificate of Determination order 1 from 20 September 2021 to 18 July 2022 to correctly reflect the Member’s determination.
The second complaint by the appellant with respect to the Member’s reasons is the submission that the Member failed to provide adequate reasons for not accepting the appellant’s submission of a tangible worsening of the respondent’s knee problems in conjunction with subsequent employment. The appellant complains that the submission was rejected “seemingly on the basis of the opinions of Dr Dias and Dr Lyons” and that this does not constitute adequate reasons or disposition of the issue.
Further, the appellant submits that the Member’s reasons are logically inconsistent on the facts of the case as it is effectively unexplained as to how the worker’s date of injury with the appellant could occur 2 or perhaps nearly 3 years after he ceased employment.
The appellant’s submissions overlook the Member’s acceptance of the respondent’s evidence that while the work with Tip Top Bakeries “worsened” the symptoms of bilateral knee pain, this was a “transient increase of bilateral knee pain [which] reverted to the baseline level of symptomatology after ceasing employment with Tip Top Bakeries in February 2021”.[63]
[63] Reasons, 50.15–21.
The Member accepted from the respondent that the role at Tip Top Bakeries was lighter than the role at the appellant’s operations.[64] In addition, the respondent only worked 10 weeks at Tip Top Bakeries.[65]
[64] Reasons, 45.11.
[65] Reasons, 45.20.
The Member makes a clear distinction between symptomatology and a continuing condition[66] and he expands this later when the says:
“the difference between symptomatology and an expert opinion as to causation is important in this matter and the [appellant] was relying upon an argument as to symptomatology. The next step was not taken – [it] was not available in evidence for the [appellant] as to causation.”[67]
[66] Reasons, 46.5.
[67] Reasons, 46.15–20.
The Member recognises that the absence of cross-examination of Dr Dias goes to weight.[68] He nevertheless accepts Dr Dias’ opinion that the worker continued to suffer chronic debilitating bilateral knee pain, stiffness and discomfort since ceasing with Mars in September 2019.[69] He accepts further the respondent’s evidence that he was “hanging on” for a voluntary redundancy notwithstanding the chronic debilitating pain.[70]
[68] Reasons, 46.25.
[69] Reasons, 46.30–35.
[70] Reasons, 47.5–10.
In addition, the Member accepts Dr Dias’ opinion that “the subsequent employment with Tip Top Bakeries, Stephen Smith Contracting and Agrana Fruit … did not result in any permanent aggravation, acceleration or deterioration of the disease process in the right and left knees”.[71]
[71] Reasons, 50.5–10.
The Member acknowledged the limited inconsistency in the worker’s cross-examination that there was no increase in symptoms when working at Tip Top, but he did not take this to be an indication that the respondent’s evidence should not be accepted.[72]
[72] Reasons, 51.15.
Acceptance of the evidence of the respondent and Dr Dias by the Member led the Member to the conclusion that the employment subsequent to leaving the employ of the appellant resulted in a transient increase in the symptomatology in both knees which resolved so that the continuing incapacity was the result of the disease injury sustained in the course of employment with the appellant.
The Member’s reasons comply with the requirements of s 294 of the 1998 Act and r 78 of the Commission’s Rules. Ground 1 of the appeal is dismissed.

GROUND 2 – ERRORS OF FACT AND LAW

Appellant’s submissions

(a) The evidence of Dr Lannan

After quoting Dr Lannan’s report of 21 September 2021 the appellant submits that the evidence of Dr Lannan was significant because it confirmed a change in the worker’s status subsequent to, and in the appellant’s submission consequent upon, the work performed by the worker at Tip Top Bakeries.
It was put to the Member that the worker had included the radiological report in the ARD and did not put forward any evidence to dispute the progression of the pathology evidenced by that report. The appellant submits:
“Notably by September of 2021, the worker was obtaining medical certificates of incapacity relating to the knees for the first time since probably 2012.
This was important evidence. It was objective, it was adduced in the worker’s case and it showed a progression of pathology in conjunction with evidence of the manifestation of symptoms. This was to be contrasted with the evidence and the objective material supporting the conclusion that at the time the worker ceased employment with the appellant some years earlier, he was not manifesting incapacity or significant symptoms in his knees.”[73]
[73] Appellant’s submissions, [33]–[34].
The appellant refers to its submissions to the Member (paragraph [9(jj)–(mm)]). The appellant refers to a passage from the Member’s reasons (38.10–30).
Of that passage the appellant says:
“There was in fact no issue as to the reliability of the report of Dr Lannan nor the accuracy of its contents. It is inescapable that the report provided evidence of deterioration or progression of the osteoarthritic changes in the worker’s knees after 2019. Clearly Dr Lannan was an expert radiologist. The report, on its face, supported the appellant’s submissions in relation to progression and was inconsistent with the worker’s denial of any change in symptoms after leaving employment with the appellant.
It was an error of fact and law to ignore the evidence of Dr Lannan when it touched on an issue directly relevant to the contest between the parties.”[74]
[74] Appellant’s submissions, [37]–[38].

(b) The Member’s treatment of the evidence of Dr Lyons

The appellant submits that Dr Lyons’ report was flawed because of the assumption by Dr Lyons that the bilateral meniscal tears were caused by employment, whereas in fact the unequivocal evidence of the worker was that they were caused by events occurring outside the workplace. Accordingly, on the appellant’s case, there was a consistency of opinion as to causation between Dr Lyons and Dr Breit when one had regard to the correct history.
This was important because it undermined the views expressed by Dr Dias and left him as the only doctor supporting the theory that the employment had aggravated a pre-existing degenerative change.
At reasons 70.25–74.5 the Member discusses the opinions expressed by Dr Lyons. At 71.30 the Member appears to suggest that Dr Lyons did not assume that the arthroscopies performed in 2007 and 2009 were occasioned by tears suffered in the course of employment. If that was the Member’s conclusion, it was clearly wrong as in his report dated 13 December 2022, Dr Lyons specifically says that employment precipitated the meniscal tears.[75]
[75] ARD, p 92.
“Somewhat inconsistently”, the Member at 72.25 “appears to acknowledge that Dr Lyons found the work to have precipitated the meniscal tears”.
Of this the appellant submits:
“Frankly, with respect, it is not clear how the Member then goes on to convert the opinion of Dr Lyons from meniscal tears caused by employment which have subsequently ‘been a substantial contributing factor to the development of the arthritic process’ to a conclusion that Dr Lyons was of the view that employment caused the aggravation of a pre-existing degenerative condition.”[76]
[76] Appellant’s submissions, [43].
The appellant submits that clearly Dr Lyons took the view that causation in the employment context was due to the meniscal tears which (contrary to Dr Lyons’ assumption) the evidence established unequivocally had not occurred at work. It is clear that the Member erred in his conclusion as to the views expressed by Dr Lyons. These were errors of fact and law. At the very least, the Member failed to provide adequate reasons for those conclusions.

(c) The Member’s conclusions as to incapacity

The appellant submits that contrary to the Member’s determination, the appellant’s submissions at first instance pointed overwhelmingly to the conclusions that:
(a)    the worker was not incapacitated at the time his employment with the appellant came to an end by way of voluntary redundancy;
(b)    employment at Tip Top Bakeries and Agrana Fruit subsequent to employment with the appellant was aggravational and caused a deterioration in his condition;
(c)    employment subsequent to the worker’s employment with the appellant was the main contributing factor to the aggravation of the pre-existing osteoarthritic changes in the knees;
(d)    the date of incapacity as found by the Member, be it 20 September 2021 or 18 July 2022, was not reflective of aggravation caused by employment with the appellant, and
(e)    the deemed date of injury occurring years after cessation of employment with the appellant, on the facts of this case, established that the appellant was not the last relevant employer for the purpose of ss 15 and 16 of the 1987 Act.

(d) The Member’s treatment of the evidence relating to the respondent’s attendance at Wyong Hospital

A significant issue raised by the appellant was the fact that a month after ceasing employment with the appellant, the worker attended the Wyong Hospital complaining of not insignificant emotional problems in the context of adjusting to his post-redundancy circumstances.
It was put to the Member that no suggestion of the worker having issues with his knees was raised during that consultation.
The appellant submits:
“Again, this was significant evidence because of its contemporaneity. The Member dealt with these arguments by suggesting that the hospital records were not a full record of what was discussed and relied upon the reasoning of the Court of Appeal in Mason v Demasi in suggesting that physical injury may have been discussed but not recorded. The Member’s approach was clearly erroneous in fact because the worker, when tested on this issue, had acknowledged that he had not said anything at the hospital as to concerns about his knees.”[77]
[77] Appellant’s submissions, [50].

(e) The Member’s treatment of the evidence as to the absence of complaint to Dr Cavanagh

The appellant submitted there was an absence of any complaints in respect of the worker’s knees to the general practitioner, Dr Cavanagh, over extended periods. This was important because it went to the appellant’s contention that the work with the appellant per se was not causative and that at the time of redundancy, the worker had no restriction in his capacity to work.
The appellant submits that the Member dealt with this by again invoking the observations of the Court of Appeal in Mason v Demasi. In doing so, the Member purported to note that Dr Cavanagh was a “busy general practitioner”. This was entirely speculative, there was no evidence in relation to the doctor being busy, much less to the point of being so busy that he did not record complaints over an extended period. Similarly, there was no explanation as to why Dr Cavanagh would have recorded complaints about some matters but not others.
The appellant submits that, more to the point, Mason vDemasi cannot be called as a general catch all explanation for the suggested protracted failure to record complaints, rather Mason vDemasi simply sounded the need for caution to be exercised when considering inconsistencies in clinical notes. As Basten JA pointed out in Mason vDemasi (at [2]) there are a range of factors which may bear on how a record is treated. However, the Member undertook no analysis of the kind suggested by Basten JA and the evidence provided no basis for simply rejecting what was an important issue.
The appellant concludes that the various component errors which make up Ground 2 of the appeal are each significant. They reflect error causative of miscarriage warranting the relief sought by the appellant.

Respondent’s submissions

The respondent repeats its submissions under the heading of Ground 1 and Background.

Appellant’s submissions in reply

The appellant submits that the respondent misconceives the operation of s 16 by suggesting that the term “substantial contributing factor” as used in that section is rendered nugatory by the operation of s 4. The appellant submits that s 16 operates independently of s 4. The operation of s 16 does not involve the concept of “main contributing factor” and it is clear by invoking the term “substantial contributing factor” the section contemplates that there can be different degrees of contribution and more than one employer which has made a substantial contribution when vesting liability.
As outlined above, it was for the worker to establish that the appellant was the last relevant employer for the purpose of s 16(1)(b). Otherwise, the worker’s submissions ignore the fact that Dr Dias does accept that there was an exacerbation caused by the work at Tip Top Bakeries. Transient exacerbation is nonetheless exacerbation. However, the objective evidence of permanent deterioration following upon the work at Tip Top Bakeries is compelling for the reasons previously outlined.
The objective evidence shows that the appellant was not the last relevant employer.
The worker’s proposition that without medical evidence the appellant could not succeed on its case that subsequent employment caused relevant aggravation is misplaced and is inconsistent with the observations of Deputy President Snell in AV v AW.[78] The significance of Dr Lannan’s scan is that it showed deterioration subsequent to cessation of employment with the appellant over a period of time which included the work at Tip Top Bakeries. To that extent it was particularly relevant. To simply make nothing of the document was to ignore relevant evidence.
[78] [2020] NSWWCCPD 9.
It is incorrect to assert as the worker does that there is no evidence that subsequent employment contributed to the aggravation. The worker’s criticism of the terms ‘provocative employment’ and ‘objective deterioration’ used in the appellant’s primary submission is misplaced. Those terms were used in the context of targeted submissions in relation to the application of the facts to the statutory requirements, obviously they are not words used in the Act. The worker’s criticisms are a distraction.

Consideration

(a) The evidence of Dr Lannan

The appellant submits that the report of Dr Lannan dated 21 September 2021 was “evidence of deterioration or progression of the osteoarthritic changes in the worker’s knees after 2019.” It submits further rejection of that evidence on the basis of reliability was an error of fact and law.
Dr Lannan, a radiologist, reported on 21 September 2021: “The appearances have progressed since the study of 2019”.[79]
[79] ARD, p 98.
The Member said this:
“It was also noted that the appearances have progressed since the study of 2019. I do not have before me a study of 2019 or I was not taken to it at least and there was reference made to it in some submissions; however, I do not make anything of this document as it would be necessary to have expert comment on the differences in that regard and how that might relate to employment and there was no expert comment in that sense in this regard.”[80]
[80] Reasons, 38.23–30.
The appellant submitted to the Member that the report of Dr Lannan “confirmed a change of the worker’s status” subsequent to leaving the employ of the appellant. That proposition is undoubted; that is what the report says.
The appellant’s further proposition that the changes were “consequent upon the work performed by the worker at Tip Top Bakeries”[81] does not follow from the report.
[81] Appellant’s submissions, [32].
The medical evidence accepted by the Member did not demonstrate that the changes on the X-ray were due to work at Tip Top Bakeries or the subsequent employments.
The full text of the Member’s reasons makes this clear. He said:
“… however, I do not make anything of this document as it would be necessary to have expert comment on the differences in that regard and how that might relate to employment and there was no expert comment in that sense in this regard.” (emphasis added).
The Member’s reference to “how [the radiological finding] might relate to employment” shows that the Member was concerned that there was no expert medical evidence to relate the findings on X-ray with the respondent’s employment duties. The point is that the relationship between the employment and the radiological finding is unexplored in the medical evidence.
I reject the complaint with respect to the Member’s treatment of the report of Dr Lannan.

(b) The Member’s treatment of the evidence of Dr Lyons

The appellant complains that the Member’s acceptance of the opinion of Dr Lyons was “flawed” because Dr Lyons assumed that the bilateral meniscal tears were caused by employment, whereas in fact the unequivocal evidence of the worker was that they were caused by events occurring outside the workplace. The appellant submits that this was important because it undermined the view of Dr Dias and left him as the only doctor supporting the theory that employment with the appellant had aggravated the pre-existing degenerative changes.

The appellant submits further that the Member failed to provide adequate reasons for his conclusions.
The Member said:
“Now, in my view, … Dr Lyons has not said that he’s assumed, and it can’t be inferred, in my view, … that the knee surgeries were … occasioned by his employment with the [appellant] …
In this regard, … he simply stated that there were knee surgeries whilst working for Mars. He didn’t make a causal link between those knee surgeries and the work as an operations technician and importantly …”.[82]
[82] Reasons, 71.30–72.7.
The Member acknowledged that Dr Lyons did say that the work precipitated the meniscal tears, but he specifically said, “this is not fatal to the opinion of Dr Lyons” because he thought there was a fair climate for the doctor’s opinion.
He amplified this in the following passage:
“In my view, there was a fair climate for Dr Lyons to provide his opinion in relation to this matter and, therefore, I accept the opinion of Dr Lyons as to causation. It was submitted by the [respondent] that that opinion ... could be the foundation for a section 4(a) or section 4(b)(i) or (ii) finding. …
I think on balance the better … interpretation of Dr Lyons’ opinion and consideration … is that his opinion … support[s] ... an aggravation of the pre-existing degenerative condition, there being an assumption which can’t be made out one way or the other as to whether or not those earlier arthroscopies were related to the [respondent’s] employment and, therefore, his opinion still stands, in my view, for that … finding.”[83]
[83] Reasons, 73.21–74.3.
The Member’s reasoning is not easy to follow but a consideration of the reports of Dr Lyons dated 14 December 2021 and 13 December 2022 clarifies what the Member had in mind.
In the first report, Dr Lyons obtained a history which included “[h]e has had two previous arthroscopies on both knees.” There is nothing in this report as to what event(s) necessitated the knee arthroscopies.[84]
[84] ARD, p 73.
In the report of 13 December 2022, Dr Lyons, in response to the question, “What history did you obtain?” says, “I enclose my consultation letter from the 14th of December, 2021 to answer this particular question.” He then says that Mr Knight is suffering from tricompartmental osteoarthritis of the knees.[85]
[85] ARD, p 91.
In response to the question, “What is the cause of our client’s condition?” Dr Lyons says:
“Mr Knight has advanced arthritis of both knees. He underwent knee arthroscopies with Dr Darren Paterson back in 2007 and 2009 whilst working for the Mars Company as an Operations Technician. It was noted at the time that he had chondral damage of the medial compartment in addition to a meniscal tear. This has deteriorated since those interventions.”
Dr Lyons is saying that the respondent underwent knee arthroscopies “whilst working for the Mars Company as an Operations Technician.” He does not say that the need arose out of the employment with the appellant.
In response to question 8, “Do you believe that work was a substantial contributing factor to our client’s injury?” Dr Lyons says:
“Yes, I do believe that Mr Knight’s occupation as an Operations Technician and an Electrician for the Mars Company which involved getting in and out of forklifts, working machinery in tight spaces, precipitated Mr Knight’s meniscal tears and has subsequently been a substantial contributing factor to the development of his arthritic process.”
In answer to the question of whether or not the employment with the appellant was the main contributing factor to the injury, Dr Lyons says:
“I do believe his employment was the major contributing factor to the development of his arthritic process. Answered above in question 8.”
Dr Lyons’ second report is ambiguous with respect to the meniscal tears for which he received arthroscopic surgery. The Member regarded a “fair reading” of Dr Lyons’ reports to be that the doctor found the operations had occurred when the respondent was employed by the appellant and notwithstanding the use of the word “precipitated”, Dr Lyons was not intending to imply the meniscal tears had been caused by the work with the appellant. That was a reading of the reports that was open to the Member. Others may have adopted a different interpretation, but it does not follow the Member was in error in his view of the doctor’s intention.[86]
[86] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [19] discussing Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506.
No error on the part of the Member is demonstrated.

(c) The Member’s conclusions as to incapacity

The appellant submits that the Member’s determination, contrary to the appellant’s submissions at first instance, that the worker suffered incapacity as a result of his employment with the appellant was wrong.
The submissions in support of this ground of appeal are largely a repetition of what is advanced with respect to other matters in the appeal and are dealt with in that context. However, this alleged error highlights the difficulty the appellant has in succeeding in the appeal in circumstances where the Member has accepted the respondent’s evidence that the subsequent employment caused a transient increase in symptoms such that the condition of the knees returned to that in which they were as a consequence of the employment with the appellant. Furthermore, the acceptance of Dr Dias’ evidence makes the asserted error with respect to this issue untenable.
There is no error with respect to the Member’s conclusions as to incapacity based as they are on acceptance of the respondent’s and Dr Dias’ evidence.

(d) The Member’s treatment of the evidence relating to the respondent’s attendance at Wyong Hospital

The Member dealt with the respondent’s attendance at Wyong Hospital commencing at reasons 36.9–18. Having noted that the respondent was admitted to Wyong Hospital between 12 October 2019 and 13 October 2019, he said:
“… it was subject of some cross-examination with a view to the issue of whether or not there was significance of any continuing condition post employment with the [appellant], that is, initially after or at the time of cessation with the [appellant] and shortly afterwards.”
The Member set out at length the contents of the Wyong Hospital Discharge Summary. Later in the reasons the Member returned to the Wyong Hospital Discharge Summary.
He accepts the respondent’s explanation with respect to working in the roofing business (that he was not working but merely driving his son-in-law to and from work because the son-in-law had lost his licence).
He said:
“… the attendance at the Wyong Hospital is in relation to a mental health issue. The [respondent] was there at the request of his family and he provided information in relation to the events at the time. There’s no suggestion … from Wyong Hospital that this was a full record of what was discussed for the same reasons as Mason v Demasi, that is, that caution should be taken in relation to this history. I apply the same caution.
That was a mental health, in my view, or an attendance in relation to an issue that might be regarded as a mental health attendance … and a mental health attendance, in my view, may or may not include reference to physical ailments. It may but it may not have been recorded at the same time, it might [have] been discussed, there’s simply no way to know … and I apply the caution[ary] regard called for in Mason v Demasi and in my view, there’s nothing to be found one way or the other in relation to the [respondent] in this regard.”[87]
[87] Reasons, 64.22–65.8.
The Member’s reference to Mason v Demasi is submitted by the appellant to be erroneous because the worker, when tested on the issue, had acknowledged that he had not said anything at the hospital as to concerns about his knees.
That, with respect, is not a fair reading of what the Member said or for what he utilised the reference to Mason v Demasi. The Member was directing himself that he was required to exercise caution with respect to the history contained in the Wyong Hospital Discharge Summary. He concluded that there was simply no way of knowing whether there had been a discussion about the respondent’s physical capacity on attendance at the Wyong Hospital. He may have overlooked or disregarded the concession given by the respondent in cross-examination by the appellant.
The Member made no finding adverse to the appellant with respect to this issue. The Member proceeded on the basis that he could not determine whether or not the respondent had made a complaint when he attended Wyong Hospital with respect to the mental health issue. The appellant obtained from the respondent a concession that he had not complained about his physical capacity at that time. The Member’s approach was the equivalent of the concession obtained by the appellant, albeit the Member proceeded on the basis that he just did not know one way or the other.
I accept that the Member may have overlooked or ignored the concession the appellant obtained in cross-examination, but I cannot see how that had any impact on the Member’s reasoning process.

(e) The Member’s treatment of the evidence as to the absence of complaint to Dr Cavanagh

The appellant submits that there was an absence of any complaints in respect of the worker’s knees to his general practitioner, Dr Cavanagh, over extended periods.
The appellant’s point as I understand it was that there was no record in Dr Cavanagh’s notes of complaint by the worker with respect to his knees from about 2016 and when the respondent left the appellant’s employ in September 2019. The appellant submits that the Member misused Mason v Demasi in his reference to the doctor being a busy general practitioner in circumstances where there was no evidence that Dr Cavanagh was a busy general practitioner.
The appellant submits:
“[More] to the point, however, Demasi cannot be called in aid as a general catch all explanation for this suggested protracted failure to record complaints. Rather, Demasi simply sounded the need for caution to be exercised when considering inconsistencies in clinical notes.”[88]
[88] Appellant’s submissions, [54].
The Member addressed the notes of Dr Cavanagh. Having made the observation that he saw “nothing from cross-examination to shake” the respondent’s statement, the Member said:
“I should say the [respondent] was taken to this history, that is the history of complaint to Dr Cavanagh in cross-examination and it was his explanation that he did, in fact, complain to Dr Cavanagh about … his bilateral knee pain over the years from about 2016 or perhaps even earlier according to the evidence, the [respondent] was taken to an absence of documentary – clinical notes in that regard and the [respondent] said that nevertheless he did make those complaints to Dr Cavanagh.”[89]
[89] Reasons, 41.24–33.
The Member then referred to Mason v Demasi and said:
“In this regard, the [respondent] maintained and has provided an explanation which I accept that he did complain to Dr Cavanagh of knee pain over the years and this was not recorded. In my view, this is not fanciful. It seems to me that on the basis of the clinical notes that I could see with entries which then turn up which indicate some – to me in 2019, for example, knee pain recorded by Dr Cavanagh and I should say that in this regard it was – a prescription was added at that time for Nurofen Plus.
So it seems to me based on my capacity as a specialist tribunal Nurofen Plus is a prescription in respect of, as the [respondent] indicated also … in his statements and also Dr Dias referred to it as well, and I should say Dr Lyons, that there was … a prescription for knee pain. The reason I say that is because Nurofen Plus is a treatment for pain and symptoms and there was only reference in that document, that is an entry of 9 December 2009 to the knee.”[90]
[90] Reasons, 42.10–28.
The Member was not required to provide an explanation for why there was no complaint recorded in Dr Cavanagh’s notes. All that was necessary was for the Member to accept the evidence of the worker that he had made those complaints even though there was no record.
The reference to Mason v Demasi was no more than a reference to the caution directed to tribunals of fact when assessing clinical notes. The Member’s reference to Mason v Demasi did not undermine the fundamental finding that the evidence of the respondent on this point was to be accepted.
Ground 2 of the appeal is dismissed.

GROUND 3 – REFUSAL TO ALLOW CROSS-EXAMINATION

Appellant’s submissions

The appellant submits that the Member, in denying it an opportunity to cross-examine Dr Dias, denied it procedural fairness. The appellant submits that the cross-examination of Dr Dias was important to:
(a)    test his theories as to causation which were not consistent with those of Dr Breit and on the appellant’s case not consistent with the opinion of Dr Lyons;
(b)    test the history provided by the worker;
(c)    test the proposition that subsequent employment was not causative, particularly in light of the various matters put to the Member by the appellant, and
(d)    test the account of the worker as to the nature of the work performed at Tip Top Bakeries as well as the worker’s account in relation to a worsening of symptoms at Tip Top Bakeries. Significantly in giving his evidence the worker departed from the account recorded by Dr Dias on those matters.
The appellant asserts the most effective way of determining the reliability of competing expert opinions is to interrogate the controversy by questioning a protagonist of a competing opinion.
The appellant submits that the Member took an inflexible approach to the application of cross-examination and does not avert to the desire on the part of the appellant to test the fabric of Dr Dias’ opinion. The Member suggests that the matters of controversy can be dealt with in submissions. The appellant submits that “ignores the purpose of cross-examination, the outcome of which may well inform the final submissions.”[91]
[91] Appellant’s submissions, [64].
In refusing the second application for leave to cross-examine, the Member was directed to Procedural Direction PIC10 at paragraph [12] which contemplates that cross-examination will be allowed if considered “necessary or is otherwise significantly preferred, in the interests of justice or for any other reason.”
The Member adopted an approach directed by policy rather than the flexible approach to cross-examination contemplated by the paragraph. At the hearing of the matter on 30 October 2023, the Member said, “it’s the Commission’s practice not to allow cross-examination of doctors other than in exceptional circumstances”.[92] The suggestion that exceptional circumstances are required elevates the standard much higher than that contemplated by the Procedural Directions quoted above. It is also a term undefined by the Member. Whatever be the determinant, in the appellant’s submission it should be aimed at doing justice between the parties and achieving a determination on the merits.
[92] Transcript of proceedings 30 October 2023 (T), T 29.28–30.
The appellant observes that appellate courts not infrequently are critical of the failure to cross-examine medical experts in circumstances where medical reports are simply not enough. The appellant quotes from Seltsam Pty Ltd v Ghaleb,[93] per Mason P.
[93] [2005] NSWCA 208.
It is the appellant’s submission that the denial of the opportunity to test the opinion of Dr Dias operated to deny the appellant procedural fairness in the circumstances.

Respondent’s submissions

The respondent submits that the appellant’s submissions “contain a series of unsubstantiated and unsustainable assertions of fact”. He then quotes Procedural Direction PIC10.
The respondent refers to the Member’s decision on the point at reasons 30, in particular 30.31 and 25.22.
The respondent’s submission is that the application for cross-examination of Dr Dias was unfair and against the interests of justice because:
(a)    the application, if granted, would have necessarily led to the non-completion of the hearing during the time agreed to by both parties at the preliminary conference;
(b)    there had been no enquiries as to the availability of Dr Dias. For all that is known, the application may have been futile or impractical;
(c)    there was no compliance with Procedural Direction PIC10 by the appellant;
(d)    there was no evidence put on by the appellant as to the duties and labours required by the worker in his employment, and
(e)    the appellant submitted that a purpose for the application was to test the account of the worker as to the nature of the work performed at Tip Top Bakeries. At the time of the application there was no evidence to challenge the nature of the employment. If it was the appellant’s case that the duties were not as assumed within the reports of the doctor, then it was incumbent upon the appellant, as the employer, to fairly raise the issue in a timely manner, and permit response and expert opinion upon such allegations and evidence.
The respondent submits that had the Member exercised his discretion to allow the application, then the Member would have fallen into error. The Member is vested with a discretion and such discretion did not miscarry.

Appellant’s submissions in reply

The appellant submits that, contrary to the respondent’s submission, it did direct the Member’s attention to Procedural Direction PIC10 at T 78–80.
It is conceded that there was no witness schedule or start and end times as to witnesses’ attendance provided, but the appellant submits that the Procedural Direction was geared towards pre-hearing case management of witnesses and so far as Dr Dias was concerned, any list would have been a list of one.
The Member’s reasons for rejecting the application cited by the respondent do not engage with the legitimate forensic purpose of testing the doctor’s evidence in circumstances where his assumptions were to be challenged and his reasoning scrutinised in the context of competing medical opinions and importantly the worker’s departure from the history recorded by Dr Dias.
The unfairness to the appellant of being unable to question Dr Dias is demonstrated, for example, by the Member’s treatment of the evidence at reasons 44.25–30 where he reads into the history recorded by Dr Dias a dilution of the worker’s account that ‘job role’ was distinguishable from ‘work duties’. This was important not only on issues of diagnosis and the extent of aggravation, but it also went to the reliability of the worker’s account to the Commission and whether he was giving evidence inconsistent with what he told Dr Dias.
The respondent’s submission at [44(b)] highlights the failure of the Member to address the forensic issues outlined at length in the appellant’s earlier submissions. The appellant submits that it can be accepted that in many cases cross-examination may not be needed, however, that does not warrant an inflexible approach steeped in the undefined requirement of exceptional circumstances to be established. The application was opposed and foreclosed at the outset. The availability of Dr Dias was not raised and is not open to be deployed now as a speculative point when it was not raised at the time.
The worker argues there was no evidence to challenge the nature of the duties at Tip Top Bakeries, yet it answers a case about the work he performed there which the appellant contends is inconsistent with the account recorded by Dr Dias. There was in fact conflicting evidence on the issue going to the fabric of the opinion of Dr Dias which the appellant was entitled to test.

Consideration

The appellant made two applications for leave to cross-examine Dr Dias. Both were rejected.
Procedural Direction PIC10 provides in paragraph [12] as follows:
“Questioning or cross-examination of witnesses (including parties) may be permitted if the presiding member decides that it is necessary or is otherwise significantly preferred, in the interests of justice or for any other reason.”

The appellant wished to test Dr Dias’ evidence as to:
(a)    causation;
(b)    history provided by the worker;
(c)    the proposition that subsequent employment was not causative, and
(d)    test the account of the worker as to the nature of the work at Tip Top.
The Member rejected the application on the second occasion, being an application advanced by senior counsel for the appellant who had not previously been in the matter.
The Member said that he had previously declined leave to cross-examine Dr Dias and Dr Lyons because the issues were clear in terms of the opinion of Dr Dias,[94] and with respect to the latest application he said this:
“In my view, it’s a matter for submissions based upon what Dr Dias says in terms of his assumptions and the facts that he assumes. It’s the same as it has been previously in Commission proceedings, it’s the Commission’s practice not to allow cross-examination of doctors other than in exceptional circumstances …
…
So in my view, the Commission’s procedures including today in dealing with these sorts of matters are robust in terms of considering these sorts of causative issues and I see no reason to depart from my earlier decision about that.
… The [appellant’s] case has been clear about its dispute in terms of the last relevant employer.”[95]
[94] T 29.22.
[95] T 29.25–30.24.
The essence of the Member’s reasoning on this point appears to be that the histories given by Dr Dias depend on the evidence of the respondent worker. The Member allowed cross-examination of the worker.
As the worker’s history was tested by cross-examination, it was possible to consider whether the history relied on by Dr Dias accorded sufficiently with the worker’s evidence. If it did not, Dr Dias’ opinion would not prevail. It was unnecessary and indeed “undesirable” to cross-examine Dr Dias. A fair climate for Dr Dias’ opinion depended on the evidence of the worker and its correlation with the history recorded by the medical specialist in his report.
The Member’s approach in this regard is uncontroversial.
In Aluminium Louvres & Ceilings Pty Ltd v Zheng[96] Bryson JA (Handley JA and Bell J agreeing) said this:
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.
… No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law.”[97]
[96] [2006] NSWCA 34 (Zheng).
[97] Zheng, [37]–[38].
Unlike Zheng, my jurisdiction does not extend to a review of the Member’s decision. My jurisdiction is limited to correcting error once established.
The appellant submits that the Member was in error in referring to “exceptional circumstances” being required because it elevates the standard much higher than that contemplated by the Procedural Direction quoted above. However, in the context in which the Member uses the expression “exceptional circumstances” this was no more than a reference to the rarity of cross-examination of medical professionals in this jurisdiction. The Member did not use the expression “exceptional circumstances” as a standard by which to judge whether cross-examination of Dr Dias should be allowed but rather as a reference to the occasions on which cross-examination of doctors occurs in the Personal Injury Commission.
Furthermore, granting leave to cross-examine is a matter of practice and procedure which requires an appellate tribunal when reviewing the Member’s decision to proceed with “added restraint” and “particular caution”.[98]
[98] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 558 [36] per Gageler J (as his Honour then was) referring to Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170, 176–177 citing Re Will of Gilbert (1946) 46 SR (NSW) 318, 323.
In addition to that restraint, it seems to me that the implicit assumption in the appellant’s submission is that cross-examination of Dr Dias would result in concessions favourable to the appellant that may have occurred. But the Member was correct when he said that the advantage to the appellant was that it could make submissions contradictory of the opinion of Dr Dias even though he had not been cross-examined on those propositions. Because cross-examination was foreclosed the appellant was not precluded by the rule in Browne v Dunn[99] from submitting that the evidence of Dr Dias should not be accepted because, for example, it conflicted with the evidence of Dr Breit or was not supported by the respondent’s evidence or the like.
[99] (1893) 6 R 67.
The Member exercised his discretion against allowing cross-examination of Dr Dias. The discretion did not miscarry, and no error has been demonstrated. Ground 3 of the appeal is dismissed.

RESPONDENT’S NOTICE OF CONTENTION PURSUANT TO RULE 125

Respondent’s submissions

By his Notice of Contention, the respondent submits the non-Presidential Member’s decision should be affirmed.
The respondent submits that the Member erred in failing to apply the law and address the worker’s clearly articulated submission that an employer, having been found to have caused injury and who alleged a relevant further injury with a subsequent employer, had the burden of proof that an aggravation, acceleration, exacerbation or deterioration of the disease was caused by the later employment that was itself the main contributing factor for disease or for its aggravation, acceleration, exacerbation or deterioration.
Dr Breit’s report should have been rejected as inadmissible on the basis of Procedural Direction PIC4, clause 10, clause 11(d), (e), (f) and ultimately on the basis that the opinion should have been rejected as irrelevant and could not be given any weight as the doctor did not expose any understanding of the respondent’s working conditions.

Appellant’s response to the Notice of Contention

The submission as to the burden of proof found in the first ground of the Notice of Contention is contrary to authority: Bekkers. The worker in fact failed to discharge the onus on him to establish that the appellant was the last relevant employer.
So far as the second ground of the Notice of Contention is concerned, it is not clear what complaint is made in relation to the admission into evidence of Dr Breit’s report. The contention does not articulate the report to which it refers.
The report of 19 January 2022 was admitted without objection. As no objection was taken at the time and the report formed part of the evidence before the Member, no complaint can now be made about the admissibility of that report.
The second report of Dr Breit dated 27 October 2023 was rejected upon objection from the worker. That aspect of the Member’s decision is not the subject of appeal.

Consideration

It is unnecessary to consider the Notice of Contention.

DECISION

The appeal is dismissed.
The Certificate of Determination dated 1 December 2023 is amended to substitute in order 1 the date “18 July 2022” for “20 September 2021”.
The Certificate of Determination is otherwise confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

2 December 2024