McMinimee v State of New South Wales (South Western Sydney Local Health District) - [2023] NSWPICPD 18

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	McMinimee v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 18
APPELLANT:	Valerie McMinimee
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W5201/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	14 April 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 12 April 2022 is confirmed. 2. The matter is remitted to the same Member to settle the terms of referral to a Medical Assessor.
CATCHWORDS:	WORKERS COMPENSATION – consequential injury – causation – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570 considered – aggregation of injuries for the purpose of whole person impairment – s 322 of the Workplace Injury Management and Workers Compensation Act 1998 – Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Moffet, counsel
AM Legal Compensation Lawyers
Respondent:
Mr L Robison, counsel
HWL Ebsworth
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF Member’s DECISION:	12 April 2022

INTRODUCTION AND BACKGROUND

Ms Valerie McMinimee (the appellant) was employed by the respondent to work in the South Western Sydney Local Health District. The appellant commenced employment in 1991 initially as an enrolled nurse and later during her employment in an administrative role. Before the Member in the proceedings below, the appellant stated that she suffered injury to her right shoulder and elbow on 7 March 2011. On this date, the appellant had attended an elderly patient’s home where she slipped and fell on external stairs. A repeat x-ray taken one week later revealed a fracture to the right elbow.[1] The appellant was off work for about two months before returning to work on light duties. This involved working in the office rather than performing nursing duties.[2]
[1] Appellant’s statement 22 November 2019, ARD, p 13, [21]–[23].
[2] Appellant’s statement 22 November 2019, ARD, p 13, [24]–[25].
In the course of her work on light duties in August 2011, the appellant sustained another injury. The appellant states as follows:
“In August 2011 I pulled out a compactor in order to retrieve a file. This action caused pain in my left shoulder.”[3]
[3] Appellant’s statement 22 November 2019, ARD, p 13, [29].
In the appellant’s second statement, the August incident is described thus:
“In August 2011 while officially performing suitable duties, I was pulling at a large compactus in order to retrieve a file when I fractured my left humerus and felt severe left shoulder pain. I also experienced a sore neck. This was during my so-called suitable duties. I was using my left arm to open the compactus, to protect my right arm.”[4]
[4] Appellant’s statement 17 May 2021, ARD, p 16, [8].
In the proceedings before the Commission, the appellant seeks permanent impairment compensation with respect to her right upper extremity, left upper extremity, cervical spine and scarring. The respondent’s case below did not dispute that the appellant suffered injuries in the course of her employment as a result of the above injurious events. Rather, the claim was resisted on the basis that the impairment suffered as a result of each injury cannot be aggregated, thus bringing to light a dispute regarding the nature of the injury sustained on 10 August 2011. The claim pursued by the appellant below was that this August 2011 injury was a consequential condition.
The Member found that while the appellant suffered an injury to the left arm on 10 August 2011, it was not a consequential condition, and therefore, impairments cannot be aggregated. It is from this decision that the appellant has appealed.

ON THE PAPERS

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

THRESHOLD MATTERS

Whilst the parties agree that the monetary threshold for the appeal has been satisfied, they do so for different reasons, a controversy which for present purposes I do not need to resolve. I accept that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act (the 1998 Act) have been met.

THE EVIDENCE

The issue in dispute giving rise to this appeal is whether the injuries in question are able to be aggregated for the purposes of whole person impairment, and thus, the evidence relevant to this is the appellant’s case as to the cause and circumstances connecting her injury of August 2011 to the initial injury. On this, I have summarised the appellant’s case as contained in her statement evidence at [2] and [3] above. As I will describe in detail in the reasons below, the appellant also relies on the medical opinions of Dr Drew Dixon, orthopaedic surgeon who examined the appellant and provided reports nine years following the incidents, in 2020 and 2021, in which he aggregated both injuries in an assessment of whole person impairment based on his opinion that the appellant’s left shoulder injury was consequential to the injury of 7 March 2011.
In coming to this opinion, Dr Dixon refers to the appellant’s injury being caused by “overuse”, precipitated by the action of pulling the compactus with her left arm in an attempt to protect her right shoulder.
In Dr Dixon’s initial report of 17 September 2020, the appellant is diagnosed with “post traumatic stiffness of the left shoulder consequential to her right shoulder injury due to overuse with some trapezial muscle pain”. The doctor reports that the appellant’s conditions are “causally related to the nature and condition of her employ” and states “[t]he consequential injury to her left shoulder, being due to overuse while favouring her right shoulder, is confirmed.”[5] In a 29 July 2021 supplementary report, the doctor qualifies his opinion on causation, stating that “the left shoulder condition, which was precipitated by the compactus incident in August 2011, occurred because she was unable to use her right upper extremity and had to pull on the heavy compactus at work using her left arm, in order to protect her right arm and while her right shoulder remains symptomatic, she was using her left arm to pull the heavy compactus, resulting in pain in the left shoulder, due to overuse.”[6]
[5] ARD, p 56.
[6] ARD, p 59.
This opinion was not accepted by the Member.

THE MEMBER’S REASONS

The Member did not accept that the 10 August 2011 injury was consequential to the accepted injuries of 7 March 2011. Rather, the Member found that the evidence was indicative of a separate injury to the left arm on 10 August 2011, and as a result, the claimed impairments for the purposes of lump sum compensation could not be aggregated for a combined assessment of whole person impairment.
The Member noted the appellant’s submission that in using the common sense approach in evaluating causation, the close causal relationship between the incidents on 7 March 2011 and 10 August 2011 puts the injuries in the same chain of causation.[7] It was submitted that this close causal relationship was demonstrated through Dr Dixon’s opinion, and thus, permanent impairment with respect to those injuries could be assessed together under s 322(3), applying Ozcan v Macarthur Disability Services Ltd.[8] The appellant referred to it being common knowledge that a compactus is of substantial weight and expected to be opened by a person using both arms.
[7] McMinimee v State of New South Wales (South Western Sydney Local Health District) [2022] NSWPIC 154 (reasons), [45].
[8] [2021] NSWCA 56 (Ozcan), reasons, [54].
The respondent submitted that although the appellant had suffered compensable injuries on 7 March 2011 and 10 August 2011, the appellant had not demonstrated a “persuasive case theory on the aggravation of pathology”. The respondent submitted that the injury to the left arm on 10 August 2011 would have occurred notwithstanding the existing right arm injury of 7 March 2011. The respondent asserted that the appellant’s medical reports had not adequately demonstrated the need to protect the right arm as being the cause of the injury to the left arm. Further, it submitted that Dr Dixon’s statement linking the injury with the nature and conditions of the appellant’s employment was a bare ipse dixit. As a result, the reports provided little assistance in establishing causation. Rather, Dr Machart’s (orthopaedic surgeon for the respondent) analysis showed the absence of a link.[9]
[9] Reasons, [47]–[48].
With respect to Ozcan, the respondent noted that the aggregation of pathology needed to turn on its own facts, and referred to Secretary,New South Wales Department of Education v Johnson[10] in respect of the causal nexus, as well as Kooragang Cement Pty Ltd v Bates.[11]
[10] [2019] NSWCA 321 (Johnson).
[11] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
Both parties made submissions that, in essence, the question was one of fact to be determined on the evidence.
In coming to her decision, the Member considered s 322 of the 1998 Act and the principles applicable from Ozcan (with reference to State Government Insurance Commission (Western Australia) v Oakley[12]) and Johnson. The Member evaluated the evidence, ultimately finding that it did not to support the appellant’s case about the causation of her left shoulder injury being consequential. The Member considered that there was no contemporaneous description of the left shoulder injury in the medical evidence, and no reference to the need to protect her right arm, but noted it was reasonable that it might have been the case. Notwithstanding, the Member considered that in the absence of a description of the compactus, or the method of opening it, she could not accept the appellant’s submission that the Member could conclude it was heavy, or needed to be moved with both arms, and whilst the guiding principle in s 43(2) of the 2020 Act allows the Commission to inform itself on matters as it considers appropriate, it does not allow the Member to fill gaps in the evidence.[13]
[12] (1990) 10 MVR 570 (Oakley).
[13] Reasons, [65].
In coming to this conclusion, the Member found that the only evidence to assist in determining causation was the appellant’s statements (namely, those summarised at [2] and [3] above), and Dr Dixon’s reports provided on 17 September 2020 and 29 July 2021. The Member also referred to the reports of Dr Machart, who did not consider the injuries should be assessed together as there was no reason to believe they were related.[14]
[14] Reasons, [39].
In regard to the appellant’s statements, the Member considered that they did not provide sufficient details on what happened that day and were, rather, in the form of a “conclusion”.[15]
[15] Reasons, [68].
Further, she found Dr Dixon’s first report was almost identical to the appellant’s statement and in his second report, he described the compactus as being ‘heavy’, despite no reference to this in the appellant’s statement.
The Member ultimately held that “the brevity of that evidence does not permit [her] to determine whether the event on 10 August was a consequence of the right arm injury or a separate injury.”[16] The Member distinguished the evidence in the case at hand from that provided in Kumar v Royal Comfort Bedding Pty Ltd,[17] which she remarked had a satisfactory level of contemporaneous evidence connecting those injuries in comparison to the appellant’s case.
[16] Reasons, [69].
[17] [2012] NSWWCCPD 8 (Kumar).
The Member agreed with the respondent’s submission that Dr Dixon’s statement as to the appellant’s condition being caused by overuse is a bare ipse dixit. Referring to the requirements for expert evidence as set out in South Western Sydney Area Health Service v Edmonds,[18] the Member found that Dr Dixon’s evidence was not probative, finding there to be no evidentiary basis for the history taken in his supplementary report as he did not see the appellant prior to providing this latter opinion.[19]
[18] [2007] NSWCA 16 (Edwards).
[19] Reasons, [72].
The Member held that there was no medical evidence which “considers and supports” the appellant’s case about causation of the left shoulder condition, and concluded that “[a]s the evidence stands, I am unable to determine that the incident on 3 August 2011 [sic] was in fact a consequential condition”, and thus, the impairments cannot be aggregated.[20] The Member noted that counsel did not address the orders to be made in respect of referral of the remaining right arm and neck conditions for assessment by a Medical Assessor, and allowed the parties liberty to apply in respect of the form of that referral.
[20] Reasons, [76].
The Certificate of Determination issued on 12 April 2022 therefore records:
“The Commission determines:
1.     I find that the applicant suffered an injury to her right arm and neck on 7 March 2011 and an injury to her left arm on 10 August 2011.
2.     I find that the applicant did not suffer a consequential condition on 10 August 2011.
3.     I grant liberty to the parties to apply by email within seven days as to the form of any referral to a Medical Assessor.”

LEGISLATION

Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
…”

GROUNDS OF APPEAL

The appellant submits that the Member’s decision is affected by the following errors set out in her grounds of appeal. The grounds of appeal are as follows:
Ground One: The Member misdirected herself on what the appellant was claiming. This is an error of law.
Ground Two: Asking the wrong question of fact or identifying a wrong issue of fact. This is an error of law.
Ground Three: Making a decision that was against the evidence and based on no evidence or an insufficiency of evidence. This is an error of law or fact.
Ground Four: Failing to apply the law referred to. This is an error of law or fact.
Ground Five: Applying an incorrect principle. This is an error of law.
Ground Six: Making an incorrect finding of fact. This is an error of law or fact.
Ground Seven: Making an incorrect finding of fact. This is an error of law or fact
Ground Eight: Failing to properly apply the facts to the law. This is an error of law or fact.
Ground Nine: Failing to properly apply the relevant law. This is an error of law.
Ground Ten: Failing to consider submissions. This is an error fact, law or discretion.
Ground Eleven: Whilst initially pursued, Ground Eleven has been abandoned by the appellant.

PRINCIPLES ON APPEAL

The principles to be applied on appeal are found in s 352(5) of the 1998 Act. These principles have been examined in a number of cases and are well settled. In Raulston v Toll Pty Ltd[21] (since 1 March 2021[22] applying to a ‘member’ rather than an ‘arbitrator’) Roche DP said as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c)     It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[21] [2011] NSWWCCPD 25, [19].
[22] The date of relevant commencement of the 2020 Act.
The principles governing the aggregation of injuries are discussed in the following authority. The parties have relied on State Government Insurance Commission (Western Australia) v Oakley,[23] which is also considered by the NSW Court of Appeal in Ozcan. In Oakley the Supreme Court of Western Australia relevantly held at [15]–[25]:
(1)     where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2)     where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3)     where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.
[23] State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley).
In Ozcan, the Court of Appeal considered the aggregation of injuries suffered in different incidents for the purposes of an entitlement to whole person impairment within the meanings prescribed by ss 65(1) and 65(2) of the 1987 Act, and s 322(3) of the 1998 Act. The Court of Appeal held it was correct to add the whole person impairment percentages referable to injuries suffered in multiple incidents where the subsequent injuries were materially contributed to by those suffered in the first incident.[24] The Court of Appeal considered Oakley and applied s 65(1) and (2) of the 1987 Act. Further, where it is clear subsequent injuries “resulted from” and “arose out of” the first incident, they should all be treated as one injury and assessed together, as directed by s 65(2) of the 1987 Act and s 322(3) of the 1998 Act.[25]
[24] Ozcan, [14].
[25] Ozcan, [15]–[16].

It should be noted that the Court of Appeal considered the long standing causation principles of Kooragang that “the question of whether another injury or an impairment results from an injury is a question of fact.”[26]
[26] Ozcan, [26].
Ozcan queried the authority of Department of Juvenile Justice v Edmed,[27] wherein the question of subsequent injuries, for the purposes of an entitlement to pain and suffering compensation, was considered. It was held in that “a worker must establish that he or she has sustained ‘an injury’ (that is, one injury in either one incident or one pathology in two or more incidents) that has ‘resulted in’ a degree of permanent impairment of 10% or more.”[28] (emphasis in original)
[27] [2008] NSWWCCPD 6 (Edmed).
[28] Edmed, [38].
In Kumar, Roche DP considered whether a consequential shoulder injury arose from surgery arising from an accepted back injury. Deputy President Roche also considered the principles established by Kooragang, relevantly that “each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts …What is required is a commonsense evaluation of the causal chain.”[29] Deputy President Roche in Kumar found “an unbroken chain of undisputed evidence”, which, with the facts, went “beyond mere predisposing circumstances” to reach the conclusion that the subsequent injury resulted from the original injury.[30]

AS TO GROUND ONE: THE MEMBER MISDIRECTED HERSELF ON WHAT THE APPELLANT WAS CLAIMING. THIS IS AN ERROR OF LAW.

[29] Kooragang, 463–464, per Kirby P.

[30] Kumar, [48].

The appellant frames this appeal ground in the following manner. The appellant’s claim below was for a consequential condition to the appellant’s left shoulder. The Member found, at reasons [79], an injury to the left shoulder on 10 August 2011 in circumstances where that claim had not been advanced by the appellant. This, it is asserted, is an error of law.
The respondent says that paragraph [79] must be read in the context of the paragraphs of the Member’s reasons surrounding [79] and in particular the respondent points to reasons [75], [76] and [80]. The respondent states as follows:
“Ground 1 is predicated on an unstated assumption that the Member was bound to adopt the worker’s case theory on causation. True it is that the ARD did not allege a stand alone injury to the shoulder, but that is the factual finding the Member made. This is not the result of misdirection, rather it is the terminus of the fact finding process that the Member was obliged to undertake regardless of the applicant’s own position. The applicant’s position was not the respondent’s position and the Member was required to determine a dispute in this regard. This is because the respondent did not place in issue the proposition that the relevant body parts had been injured, rather the causation of those injuries, and the question of whether there were linked [sic] to permit aggregation in assessment was the real issue (see respondent’s submissions below dated 24 February 2022 at [1] and [2]).”[31]
[31] Respondent’s submissions, [14].

Consideration

This ground asserts that the Member misunderstood what the appellant was claiming. The appellant says:
“The claim was for a consequential condition to the left shoulder. The ARD was never amended to include a claim for injury to the left shoulder.”[32]
[32] Appellant’s amended submissions 25 May 2022, [4].
Ultimately the Member found injury to the left shoulder.[33]
[33] Reasons, [79].
The Member in her decision framed the appellant’s claim in the following way:
“Her case is that on 7 March 2011 she suffered an injury to her right shoulder and elbow. While on suitable duties in August 2011, she pulled a compactus and suffered a consequential condition in her left shoulder arm and neck.”[34] (emphasis added)
[34] Reasons, [1].
At reasons [2], the Member records that the respondent did not dispute the injuries but did dispute that they could be aggregated for the purposes of permanent impairment compensation.
This follows on from the Notice issued by the respondent’s insurer on 20 November 2019. This Notice, issued under s 78 of the 1998 Act, disputed that the appellant’s injuries could be aggregated for the purposes of a whole person impairment claim.[35] A second notice under s 78 of the 1998 Act, dated 9 April 2021, repeated this position that the discrete injuries could not be aggregated.[36] The notices are referred to by the Member at reasons [42]–[44].
[35] Reply, p 4.
[36] Reply, p 12.
The Member summarised the evidence, in particular noting Dr Dixon’s opinion of the consequential condition (reasons [33]) and the doctor’s assessment of whole person impairment (reasons [34]–[36]).
From reasons [45]–[55], the Member summarised the parties’ submissions, noting that while the respondent conceded injury, it disputed whether the injury was consequential.
The Member’s reasoning in the “Findings and Reasons” section of her decision dealt squarely with the dispute as framed by the parties.[37]
[37] Reasons, [56]–[81].
As a consequence of the above, I do not accept the submission that the Member was unaware of or misdirected herself on what the appellant was claiming. It is clear from the passages of the decision and the evidence referred to above that the terms of the dispute and the appellant’s claim were correctly articulated.
The terms of the dispute were clear. There was no dispute about the fact of an injurious event in August 2011 which caused injury to the appellant. The question was about its nature, either consequential or injury simpliciter. The Member specifically found that the appellant did not suffer a consequential injury.[38] But an admitted injury still occurred at work, hence the finding at reasons [79].
[38] Reasons, [80].
I accept the respondent’s submission that this finding was “the terminus of the fact finding process that the Member was obliged to undertake regardless of the [appellant’s] own position.”[39]
[39] Respondent’s submissions, [14].
The Member did not misdirect herself as to the appellant’s claim rather she merely found against it. No error has been established. Ground One is dismissed.

AS TO GROUND TWO: ASKING THE WRONG QUESTION OF FACT OR IDENTIFYING A WRONG ISSUE OF FACT. THIS IS AN ERROR OF LAW.

Ground Two is a derivation of Ground One. The appellant points to reasons [64] where the Member found that the appellant “may well have suffered a left shoulder injury on 3 August 2011 [sic] when opening the compactus, irrespective of the condition of her right arm.” The appellant once more asserts that an injury of the left shoulder was not claimed and that this was an error of law.
In response, the respondent asserts that this ground must be rejected for the same reasons relied upon by the respondent in opposition to Ground One.

Consideration

As I have described Ground Two above, it is a derivation of Ground One. For the same reasons that Ground One has not succeeded, Ground Two also cannot be established. No error has been identified. Ground Two is dismissed.

AS TO GROUND THREE: MAKING A DECISION THAT WAS AGAINST THE EVIDENCE AND BASED ON NO EVIDENCE OR AN INSUFFICIENCY OF EVIDENCE. THIS IS AN ERROR OF LAW OR FACT.

The appellant points to reasons [63] in the Member’s decision where the appellant’s evidence is recounted about the August 2011 incident. The appellant states as follows:
“in terms of the truth of that evidence the Member said that ‘it is reasonable in the context of the treatment she was undergoing and the fact that her duties had changed that that might be the case’ and referred to no evidence that contradicted it.”[40]
[40] Appellant’s amended written submissions, [6].
The appellant asserts that the logical conclusion of such reasoning should have been to find that a consequential condition of the appellant’s shoulder had been established, there being no evidence to the contrary.
The respondent resists this ground by asserting that the appellant bore the onus of proof before the Member. The respondent points to reasons [63] where the Member said as follows:
“The cause of the left shoulder injury is not described in any of the contemporaneous medical evidence.”
The respondent states that the appellant has been unable, either below or on this appeal, to identify such material. The respondent describes the significance of contemporaneous medical records[41] and concludes the submission by stating that error has not been identified. The respondent states that absent error, an appeal does not permit the re-agitation of factual findings.
[41] Respondent’s written submissions, [17].

Consideration

The appellant impugns the Member’s findings at reasons [63] which provides as follows:
“The cause of the left shoulder injury is not described in any of the contemporaneous medical evidence. Ms McMinimee said that she opened the compactus with her left arm because she was protecting the right. There is little evidence about what happened on that day. None of the medical evidence refers to the need to protect her right arm though it is reasonable in the context of the treatment she was undergoing and the fact her duties had changed that that might be the case.”
I would remark that there is no dispute that the appellant suffered an injurious event to her left shoulder at work on 10 August 2011. The dispute is about whether this was a consequential injury, as alleged by the appellant, or injury simpliciter as maintained by the respondent.
This ground misunderstands the approach adopted by the Member in dealing with this dispute. It is trite to say that the appellant bore the burden of proving that her left shoulder injury was a consequential injury and could thus be aggregated to her earlier injuries.
The Member had principally two issues with the appellant’s evidence. Firstly, the brevity of the appellant’s description of what occurred at work in August 2011 was insufficient.[42] Secondly, the Member was concerned about the lack of contemporaneous medical evidence supportive of the appellant’s case.
[42] Reasons, [63], [65]–[71].
It is not correct, as asserted in this ground, that the appellant’s evidence was not contradicted. Rather, the appellant’s case was very brief on the precise issue in dispute and this clearly did not satisfy the Member in terms of the discharging of the appellant’s burden of proof. It was not contradicted as far as it went.
Reading the decision as a whole, it is apparent that the appellant did not persuade the Member of the existence on the probabilities of the relevant fact(s) to establish the appellant’s claim.[43] The Member was not satisfied that the appellant had discharged her burden of proof. This is not a finding against the evidence or one that was based on no or insufficient evidence as alleged.
[43] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [55].
This ground of appeal has not been established. Ground Three is dismissed.

AS TO GROUND FOUR: FAILING TO APPLY THE LAW REFERRED TO. THIS IS AN ERROR OF LAW OR FACT.

The appellant records that the Member correctly quoted the relevant paragraph from Kumar and the remarks of Deputy President Roche in that matter at reasons [70]. The appellant asserts that this extract from Kumar was in fact supportive of the appellant’s case, arguing that the appellant’s evidence, consistent with the evidence in Kumar, was “unchallenged and not implausible”. The appellant points to the Member’s finding at reasons [63] as being supportive. The appellant also states that Dr Machart in this case, like Dr Wallace in Kumar, did not address the issue in question.
Ultimately, the appellant asserts that the Member’s finding at reasons [71] is a misinterpretation of the quote from Kumar as being authority for the proposition that “detailed evidence” was required.
In response, the respondent states that the decision in Kumar was distinguishable and was correctly distinguished by the Member at reasons [71]. The respondent states that while the evidence in Kumar was “unchallenged and not implausible”, the worker’s case in this matter was both challenged and, in the respondent’s submission, also implausible.

Consideration

The appellant, as I have described above, takes issue with the use by the Member of the words or phrase “detailed evidence” at reasons [71]. This, the appellant alleges, is not a correct interpretation of the relevant extract from Kumar which appears at reasons [70].
Reasons [71] is in the following terms:
“Evidence of that nature was not provided here. It was important that detailed evidence about the events of 3 August [sic] be available when the State conceded that Ms McMinimee had suffered an injury on that day.” (emphasis added)
Kumar has similarities to this case. In Kumar, Deputy President Roche was grappling with a case where the “evidence is less than ideal and the general preparation of his case by his solicitors has been sloppy”.[44]
[44] Kumar, [59].
Notwithstanding these problems with the case, the Deputy President was able to assess the evidence and establish a basis to find for the injured worker.
In this matter, like Kumar, the evidence is not ideal and has the deficiencies identified by the Member. I would remark that no issue is taken on this appeal that the Member was in any way in error or mistaken on these factual deficiencies.
Paragraph [71] of the Member’s reasons appears at the conclusion of a series of paragraphs commencing at reasons [63]. From [63] onwards, the Member is undertaking an assessment of the evidence. It is apparent from a review of these paragraphs that the Member had a number of concerns about the evidentiary case advanced by the appellant. For example at reasons [63] the Member records:
“The cause of the left shoulder injury is not described in any of the contemporaneous medical evidence.” (emphasis added).
Further at reasons [63]:
“There is little evidence about what happened on that day. None of the medical evidence refers to the need to protect her right arm ....”
In the following three paragraphs the Member describes the evidence:
“65. In the absence of a description of the compactus or the method of opening it, I am not able to accept Mr Moffet’s submission that I can draw the conclusion that it was heavy or had to be moved with both hands. It may well have been heavy and it may be a safe work practice to use both hands or it might have rolled easily. Ms McMinimee did not give evidence as to how she would have opened it under normal circumstances. The ability of the Commission’s to ‘inform itself on any matter as the Commission thinks appropriate and the proper consideration of the matter … permits’ in s 43(2) of the Personal Injury Commission Act 2020 does not allow me to fill in obvious gaps in the evidence.”
“68. Ms McMinimee’s own evidence is in the form of a conclusion. She did not describe the compactus in any way nor the way in which she used her left arm. She did not describe her height and weight or any difficulty in moving the compactus. The reference to her weight on which Mr Moffet relied came from Dr Dixon’s report.”
“69. The brevity of that evidence does not permit me to determine whether the event on 10 August was a consequence of the right arm injury or a separate injury.” (emphasis added)
In these paragraphs the Member has described what she saw as problems with the nature and quality of the evidence. Indeed there is no evidence on several relevant matters associated with the injurious event. By the time the decision reaches the impugned phrase at reasons [71], “detailed evidence”, it is with respect clear what the deficiencies were as they had been earlier identified.
A decision needs to be read as a whole.[45] Additionally it is not the role of a Presidential member “to comb through the [Member’s] findings and reasons in search of error”.[46]
[45] Beale v Government Insurance Office (NSW) [1997] NSWLR 430 (Beale).
[46] Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230, [63].
Reading this decision consistently with this authority reveals:
(a) The Member identified various matters on which the evidence was silent (see the extracts from the reasons set out above);
(b) The Member identified the relevant passage from Kumar and on the facts clearly distinguished the evidence in that case from that led by the appellant in this case. The appellant asserts in this appeal that her evidence was, consistent with Kumar, both “unchallenged and not implausible”. This is not an accurate reflection of the evidence. Whilst one could accept that the appellant’s evidence, brief as it was, might have had those attributes (as the Member concedes at reasons [63]), it was insufficient to meet the burden of proof. In short, the evidence now asserted by the appellant as “unchallenged and not implausible” was not enough to persuade the Member and as much is clear from the Member’s reasons.
When the Member refers to “detailed evidence”, I consider that it is tolerably evident that this phrase is referring to the evidence that had not been provided and which the Member had earlier identified. That phrase when read in conjunction with the earlier paragraphs exposes the Member’s reasoning on this issue. That phrase cannot be read in isolation nor as the imposition by the Member of a higher standard of required evidence. On this basis, Kumar was properly distinguished.
No error has been established, Ground Four is dismissed.

AS TO GROUND FIVE: APPLYING AN INCORRECT PRINCIPLE. THIS IS AN ERROR OF LAW.

The appellant complains that at reasons [67] and [68], the Member dismissed the evidence that was in the histories recorded by Dr Dixon, but did not dismiss the same evidence in the appellant’s statements. The appellant asserts that evidence of the medical history is evidence of the truth of the history.[47]
[47] Appellant’s amended written submissions, [8].
In reply, the respondent points to the authorities relied upon by the appellant under this ground as being cases pertaining to the strict application of the rules of evidence. The respondent points to the Member’s findings at reasons [69] to the following effect:
“The brevity of that evidence does not permit me to determine whether the event on 10 August was a consequence of the right arm injury or a separate injury.”
The Member did note at reasons [66], as argued by the respondent, that the appellant’s brief supplementary statement was in almost identical terms to the history in Dr Dixon’s report. It is, the respondent asserts, not a matter of the Member giving different weight to the appellant’s statement as opposed to the history given to Dr Dixon.

Consideration

This appeal ground misunderstands the Member’s approach to Dr Dixon’s evidence and the approach taken to expert evidence in the Commission. I would note that Dr Dixon’s reports were produced in 2020 and 2021, 9 years and more after the 2011 injurious events.
In terms of dealing with expert evidence where the rules of evidence do not apply (as they do not apply in the Commission[48]) the approach is well settled. In Hancock v East Coast Timber Products Pty Ltd[49] Beazley JA said as follows:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.
…
85. With respect to his Honour, this reasoning is the same reasoning as that rejected by this Court in ASIC v Rich. Dr Summersell’s opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.” (emphasis added)
[48] Section 43(2) of the 2020 Act.
[49] [2011] NSWCA 11; 80 NSWLR 43.

The approach in Hancock was expressly affirmed in Onesteel Reinforcing Pty Ltd v Sutton.[50] In Sutton the then President of the Court of Appeal, Allsop P, said this:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the [1998 Act], s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].
…
The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor's opinion. Much will depend on the context and the issues tendered for consideration as to how the Commission evaluates material before it. In most cases, as here, that evaluation will be a factual question, although the question whether material could or can support a factual conclusion is ultimately a question of law: Kostas at 418 [91].”[51]
[50] [2012] NSWCA 282 (Sutton).
[51] Sutton, [2], [4].
The question in the Commission regarding expert evidence is not one involving admissibility, rather it involves assessing the weight to be given to the expert’s opinion.
The two cases cited by the appellant do not assist in this context. R v Welsh[52] involved an appeal from a conviction in a murder case and the construction of s 60 of the Evidence Act 1995, particularly in relation to a history taken by a doctor. In Welsh, Hunt CJ at CL said as follows:
“The history taken by a doctor has always been admissible in evidence as establishing the basis upon which the doctor formed the expert opinion which he or she was being called to express: Ramsay v Watson (1961) 108 CLR 642 at 648. Where the history consisted of statements made by the patient concerning his or her state of health at the time when the history was taken or within a short period beforehand, evidence that such statements had been made were direct evidence as to the truth of what was said and not hearsay: ibid at 674; Batista v Citra Constructions Pty Ltd (1986) 5 NSWLR 351 at 354–356; Walton v R (1989) 166 CLR 238 at 288–289, 300–301. (See also, in relation to statements of intention – which provided similar but not identical problems – Dobson v Morris (1986) 4 NSWLR 681 at 681, 683.) The history given to a psychiatrist was equally admissible as direct evidence in this way: Gordon v R (1982) 41 ALR 64 at 64. But where the history consisted of statements as to the past sensations, experiences and symptoms of the patient (that is, where the statements were purely historical in nature), evidence that such statements had been made was hearsay, and did not establish the truth of what was said: Ramsay v Watson at 69. In Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 at 531, Dixon J referred to such hearsay as ‘a narrative of a past event’. It was accordingly often difficult to determine the value of the doctor’s expert opinion where the truth of some of the material upon which it had been based had not been established in evidence or where the evidence was contrary to that material: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 50; on appeal: (1985) 62 ALR 85 at 87–88. See also R v Turner [1975] 1 QB at 840; R v Fowler (1985) 39 SASR 440 at 443; R v Perry (1990) 49 A Crim R 243 at 249.”[53] (emphasis added)
[52] (1996) 13 NSWCCR 674 (Welsh).
[53] Welsh, 675–676.
The second case relied upon by the appellant, Paper Coaters Pty Limited v Jessop[54] references this dictum from Welsh.
[54] [2009] NSWCA 1, [42].
These two cases involve consideration of evidence under the Evidence Act. As a result, neither are directly apt to this circumstance.
It is true there can be similarities, especially with respect to the history taken by the doctor serving to establish the basis upon which the doctor formed the expert opinion (see the section from Hunt CJ’s decision in Welsh I have highlighted above). The appellant has deployed Welsh to support the truth of the history given to Dr Dixon. Dr Dixon was retained as a medico-legal expert nine years after the events which are in contest in these proceedings. The appellant’s statements are produced in 2019 and 2021 respectively. Even if Welsh directly applied to the circumstances of this matter, the state of the evidence would fit within Hunt CJ’s category of hearsay – namely these are not statements given shortly after the event, rather they are “statements as to past sensations, experiences and symptoms of the patient” and as a result “[do] not establish the truth of what was said”.[55] Even if the Evidence Act did apply to these proceedings, the appellant’s submission that Welsh supports the truth of the medical history given to Dr Dixon is not made out. When one assesses the evidence in this case, it falls within Hunt CJ’s remarks which expressly negate this submission. Welsh therefore does not assist the appellant’s argument in this ground. But as described in Sutton above, hearsay can form a basis for reliance on an opinion in Commission proceedings. But as Allsop P said, it is a factual question dependent upon context.
[55] Welsh, 675–676.
In any event, it is not correct to assert, as the appellant asserts, that her evidence was accepted in terms of her own statement yet dismissed when utilised by Dr Dixon.
The Member did not dismiss the appellant’s statements, rather the Member found that they were too brief to enable the appellant to meet the burden of proof. In terms of these statements in Dr Dixon’s hands, clearly, they were (for the same reason) insufficient to support the doctor’s opinion and the weight that could be accorded to it. Ultimately, based on McColl JA’s remarks in Edmonds, the Member found Dr Dixon’s evidence was not probative.[56]
[56] Reasons, [74].
There is no inconsistency with how the Member dealt with the appellant’s evidence. No error in the Member’s approach in how this evidence was weighed has been established.
Ground Five is dismissed.

AS TO GROUND SIX: MAKING AN INCORRECT FINDING OF FACT. THIS IS AN ERROR OF LAW OR FACT.

The appellant impugns the following finding made at reasons [68]: “Ms McMinimee’s own evidence is in the form of a conclusion.”
The appellant points to paragraph [8] of the appellant’s statement of 17 May 2021,[57] submitting that no legal conclusion had been expressed. The appellant says that she described the compactus as “large” and that her explanation that she was attempting to protect her right arm was not a conclusion.
[57] ARD, p 16.
The appellant therefore asserts that there was no evidence to support the finding and as a consequence the finding was an error of law.[58]
[58] See appellant’s amended written submissions, [9].
The appellant asserts that this error is material because it is obvious that the Member gave little weight to the appellant’s evidence. The respondent states that:
“the appellant’s evidence that the compactus was ‘large’ is indeed a conclusion and a meaningless one at that.”[59]
[59] Respondent’s written submissions, [24].
The respondent states that the point being made by the Member was that the appellant’s evidence was brief and was insufficient to allow the Member to be persuaded.[60]
[60] Relying upon the Members findings at reasons [66]–[69].

Consideration

In terms of this ground, I have set out the relevant portion of the appellant’s evidence at paragraph [3] above.
I do not agree with the Member that the appellant’s description of the compactus as “large” is a conclusion. It is direct evidence of the appellant’s observation of the compactus.
The second expression, “to protect my right arm”, is not direct evidence of a fact or thing observed, rather it is the appellant’s explanation for taking a particular course of action. I do not see this statement as a conclusion.
The Member was therefore in error in describing the appellant’s own evidence as being “in the form of a conclusion”.[61]
[61] Reasons, [68].
However not every error will affect the result of a proceeding.[62] The real problem the Member had with the appellant’s evidence was its brevity and the things which were simply not described (see reasons [65] and [68] in particular).
[62] Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339, [17]–[20], per Basten JA.
Further, it cannot be said that the appellant’s evidence was given little or no weight because of the fact of this characterisation of her evidence. It is clear the Member was most concerned with the brevity of the evidence.
Whilst this error has been made out, it was not determinative of the result, especially once the decision is read as a whole. Consequently, this appeal ground fails.
Ground Six is dismissed.

AS TO GROUND SEVEN: MAKING AN INCORRECT FINDING OF FACT. THIS IS AN ERROR OF LAW OR FACT.

The appellant asserts that the history obtained by Dr Dixon of the August 2011 incident was adequate. Whilst his reasoning may have been brief, it was appropriately brief as the appellant states that the cause of the left shoulder condition was obvious and further that there was no medical opinion that the appellant did not need to protect her other arm.
The respondent states that the Member’s finding at reasons [72] with respect to Dr Dixon’s opinion was based upon the insufficiency of the evidence and otherwise relies upon the respondent’s arguments in relation to Ground Six.

Consideration

The appellant asserts that the Member found that “Dr Dixon’s reasoning was too brief”.[63] This submission is made by reference to reasons [72], which provides as follows:
“Dr Dixon’s statement as to a condition caused by overuse is a ‘bare ipse dixit’. Even so, that is not the case that Ms McMinimee brings. There is no evidentiary basis for the opinion in Dr Dixon’s second report and he did not see Ms McMinimee before preparing it so that it is not possible to conclude that he obtained that history from her.”
[63] Appellant’s amended written submissions, [10].
Firstly, the Member did not state that Dr Dixon’s reasoning was too brief, rather the Member found that it was non-existent, namely that the doctor’s opinion was a “bare ipse dixit”.
Dr Dixon produced three reports; 17 September 2020 (x 2)[64] and 29 July 2021.[65] In his first report of 17 September 2020, Dr Dixon said as follows. In the section of this report entitled “Accident details as given by the claimant” he takes the following history:
“In August 2011 she was pulling a large compactus to retrieve a file when she felt severe left shoulder pain with neck soreness. This was while doing suitable duties. She was using her left arm to protect her right and this action caused a consequential injury to her left shoulder.”[66]
[64] ARD, p 48.
[65] ARD, p 59.
[66] ARD, p 49.
Dr Dixon then made the following diagnosis in the section of his report entitled “Summary of injuries and diagnoses”:
“3. Post traumatic stiffness of the left shoulder consequential to her right shoulder injury due to overuse with some trapezial muscle pain”.[67]
[67] ARD, p 54.
Beneath a subsequent subheading entitled “Causation” the following appears:
“The above conditions are causally related to the nature and conditions of her employ.”[68]
[68] ARD, p 55.
Finally in this report the penultimate paragraph entitled “Specific questions” says as follows:
“The consequential injury to her left shoulder, being due to overuse while favouring her right shoulder, is confirmed.”[69]
[69] ARD, p 56.
In the report dated 29 July 2021, the following is said:
“The left shoulder condition, which was precipitated by the compactus incident in August 2011, occurred because she was unable to use her right upper extremity and had to pull on the heavy compactus at work using her left arm, in order to protect her right arm and while her right shoulder remains symptomatic, she was using her left arm to pull the heavy compactus, resulting in pain in the left shoulder, due to overuse.”[70]
[70] ARD, p 59.
Contrary to the reasoning of the plurality in Dasreef Pty Ltd v Hawchar,[71] there is no path of reasoning posited by Dr Dixon which explains why he reached the opinion that he did. There is no explanation as to how the opinion that the injury was due to “overuse” was arrived at. The evidence was about a single action in pulling the compactus causing injury. How this constitutes “overuse” is not explained or reasoned. Whether Dr Dixon’s report is brief (or not) is not to the point. Since McColl JA’s decision in Edmonds, it has been settled that bare ipse dixits carry little weight.
[71] [2011] HCA 21, [42].
The Member was correct to describe the doctor’s opinion as a bare ipse dixit. The opinion when examined does not expose the doctor’s path of reasoning leading to the eventual diagnosis. In fairness to the doctor, the history with which he was instructed was very scant. As a consequence, he had very little factual material to substantiate any reasoned opinion. Given the Member’s findings about the evidence relating to the August 2011 event, the Member was well within the exercise of her discretion to accord Dr Dixon’s opinion little weight. The opinion was not reasoned and this was partly because of a lack of foundational evidence.
No error has been established, Ground Seven is dismissed.

AS TO GROUND EIGHT: FAILING TO PROPERLY APPLY THE FACTS TO THE LAW. THIS IS AN ERROR OF LAW OR FACT.

The appellant asserts that the Member correctly stated the three categories in Oakley. The appellant then asserts that the Member incorrectly applied Oakley category one, which applies when the incident giving rise to the subsequent condition would not have happened but for the original injury. The appellant asserts that the Member having already found that the appellant was performing suitable duties in the office at the time of her consequential left shoulder condition, it must follow that the consequential condition would not have happened but for the accepted right shoulder condition.
The respondent replies by saying that the factual arguments that this ground is predicated on have not been made out. This, the respondent says, is because of the problems with the worker’s evidentiary case which were addressed in Grounds Six and Seven.

Consideration

The Member outlined the relevant extract from Oakley at reasons [60]. At reasons [62], the Member states the appellant’s argument called in aid of establishing the first category in Oakley, namely that the appellant was a nurse who was injured while on selected duties due to her earlier injury. As a result of that injury, the appellant maintains she was working in the office and the injury suffered during that work was therefore by definition consequential. This is the same argument pursued on appeal in this ground.[72]
[72] Appellant’s amended written submissions, [11].
The complaint in this ground is that by not finding that a consequential condition occurred, Oakley category one was misapplied.
This submission is based on the argument conducted before the Member. It says nothing about the Member’s concerns about the evidence and the gaps identified by the Member.
The Member was not obliged to find a consequential condition simply based on the appellant performing different duties because of an earlier injury. There was no dispute about the fact of an injurious event taking place on 10 August 2011, the dispute was about its true character.
The Member was alive to this issue. Having correctly stated the principles from Oakley,[73] the Member then proceeded to examine the evidence to determine if a consequential condition had occurred, namely, had the consequential condition resulted from the 7 March 2011 injury. This commences at reasons [61]. In the paragraphs that followed, the Member examined the appellant’s case and, as I have described above, indicated the various issues, gaps and deficiencies in the appellant’s evidence.[74]
[73] Reasons, [60].
[74] Reasons, [63], [65], [68], [69].
This was not a misapplication of the facts to the law, it was a case of the evidence not reaching the necessary standard.
It is not disputed that the appellant was working in a different role in August 2011 due to her earlier injury. It is not disputed that she suffered an injury to her left arm in August 2011. What needed to be proven in terms of this dispute was that the latter injury was consequential to, or resulted from, the earlier injury. More evidence was required to bridge the gap between the change in roles and injury suffered in August 2011 to the earlier incident. Oakley category one was simply not established on the evidence. This is not a misapplication of the legal principle, it is a shortcoming in the evidence.
This appeal ground has not been established.

AS TO GROUND NINE: FAILING TO PROPERLY APPLY THE RELEVANT LAW. THIS IS AN ERROR OF LAW.

This appeal point is a corollary to Ground Eight. The appellant states that once the Member found that the first category in Oakley had not been made out, it was incumbent upon the Member to consider the application of the second category. The appellant relies upon the comments of Member Sweeney in Carr v State of New South Wales (Mid North Coast Local Health District).[75] The appellant asserts as follows:
“The second limb therefore applies where the incident giving rise to the subsequent condition would have happened in any event and must have been relevant to the facts as the Member found them, albeit we say erroneously. We say given the evidence of left shoulder injury on the pleaded date of the accepted right shoulder injury (see the Member’s reasons at [13]), the Member should have considered the worsening of that condition under the second limb but did not.”[76]
[75] [2021] NSWPIC 195, [35].
[76] Appellant’s amended written submissions, [12].
The respondent states that Ground Nine is merely a different way of expressing Ground Eight and does not need to be answered separately. The respondent relies on its response to Ground Eight in answer to this ground.

Consideration

At reasons [62], the Member said this about the appellant’s submissions:
“As I understand Mr Moffet’s submissions, Ms McMinimee relies on the first category in Oakley to causally link the August 2011 injury with that in March. Ms McMinimee was on selected duties and working in an office rather than as a nurse. That change in her employment had come about because of the March 2011 injury and Dr Davé had certified her fit for light duties which were desk based and mobile.”
The Member records that it was the appellant’s submission that this claim relied on category one of Oakley. No issue has been taken on appeal that this was not the case conducted below. The Member clearly dealt with this submission.
It is now asserted that, having found against the appellant on category one, that it was “incumbent” upon the Member to consider category two.
I do not accept this submission. Oakley identified three separate categories of case in the context of proceedings in negligence. But the observations of Malcolm CJ in Oakley are also pertinent to the assessment questions associated with permanent impairment and the effect of later injuries and questions of causation with respect to injury. Nowhere in Oakley is it said that a decision-maker must consider each category.

By definition, the Member cannot have been in error by failing to consider an argument that was not put.[77]
[77] Brambles Industries Limited v Bell [2010] NSWCA 162.
However, even if I assume for present purposes that the Member either was obliged to consider category two of Oakley or that it had been advanced as an alternate submission, this appeal ground would still fail.
As I have set out above, the Member decided this application adversely to the appellant because of the evidentiary deficiencies identified in the decision. These same deficiencies would also serve to defeat the appellant’s claim insofar as category two of Oakley is concerned. I accept the respondent’s submission that this ground fails for the same reasons as Ground Eight.
Ground Nine is dismissed.

AS TO GROUND TEN: FAILING TO CONSIDER SUBMISSIONS. THIS IS AN ERROR FACT, LAW OR DISCRETION.

This is a relatively discrete appeal point. The appellant asserts that the Member did not consider the operation of Kooragang and had she done so, the Member would have found the consequential condition resulted from the accepted injury in the sense that the latter made a material contribution to the former.
The respondent says that the Member was alive to the issues arising from Kooragang and indeed referred to it expressly at reasons [53]. The respondent states that the Member applied the principles arising from Kooragang.

Consideration

Both parties’ submissions briefly referred to Kooragang before the Member.[78] The parties agree that Kooragang says that causation is a question involving the application of a degree of common sense. The Member indeed referred to this principle and authority at reasons [53].
[78] Appellant’s reply submissions 3 March 2022, [6]; respondent’s submissions 24 February 2022, [18].
The appellant’s submission on appeal effectively says that had the Member approached causation in accordance with the Kooragang principle, it is inevitable that the appellant would have succeeded.
The appellant’s submission is very broad, it does not identify where the asserted error is said to have been made by the Member. Rather, the submission seems to be directed at the entirety of the Member’s reasoning and I will deal with this ground on that basis.
Needless to say, the Member’s decision needs to be read as a whole.[79] The Member was aware of Kooragang[80] and both parties briefly referred to it. The Member was also aware of how the appellant had framed her claim.[81] It is clear that thereafter the Member conducted a close assessment of the appellant’s evidentiary case and for the reasons I have described above, was not satisfied that the claim had been established. No issue has been taken on this appeal with the deficiencies in the claim as identified by the Member. The deficiencies as identified[82] all represent the exercise of common sense by the Member as applied to the case at hand. The Member also considered relevant authorities dealing with the question of aggregation. It is not necessary for the Member to specifically refer to Kooragang in these sections of her reasons when a fair reading of the decision reveals that was what was done.
[79] Beale.
[80] Reasons, [53].
[81] Reasons, [62].
[82] Reasons, [63], [65]–[67].
Implicitly, this ground seeks to impugn the Member’s decision in terms of issues which are not subject to challenge, namely the Member’s findings on the evidentiary deficiencies which adversely affected the appellant discharging her burden of proof. This is not an approach which reveals any error on the Member’s part. This ground has not revealed error.
Ground Ten is dismissed.

AS TO GROUND ELEVEN

Ground Eleven has not been pressed and as a consequence does not need to be decided.

DECISION

The appellant failed at first instance because her evidence was insufficient to discharge the burden of proof which at all times resided with her. This was the essence of the Member’s decision. On appeal these findings have not been disturbed and as a consequence the decision must stand.
I therefore confirm the Member’s Certificate of Determination dated 12 April 2022.
Given the subject matter of this dispute and having regard to the confirmation of the Certificate of Determination in this decision, it is necessary to remit the matter to the same Member for the purposes of settling the terms of the referral to a Commission Medical Assessor. This process was contemplated by the Member at reasons [77]–[81] and it is appropriate that the same Member deal with the terms of the referral.

Judge Phillips
President

14 April 2023