Morris v Woolworths Group Limited - [2022] NSWPICPD 30

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Morris v Woolworths Group Limited [2022] NSWPICPD 30
APPELLANT:	Dianne Morris
RESPONDENT:	Woolworths Group Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W2737/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	3 August 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 October 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4(b) of the Workers Compensation Act 1987 – failure to discharge the onus of proof to establish injury – Department of Education and Training v Ireland [2008] NSWWCCPD 134 applied – approach to contemporaneous documents - Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 and ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
Respondent:
Ms S Warren, counsel
BBW Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	31 October 2021

INTRODUCTION AND BACKGROUND

Dianne Morris, the appellant, commenced employment with the Woolworths Group Limited, the respondent, on 18 May 1978 and remained in that employment until her retirement in August 2019.
On 31 January 2019 at the respondent’s Medowie store, whilst working as a customer service manager, the appellant allegedly suffered an injury to her left knee. She says that in the course of obtaining a product requested by a customer, she turned and put weight on her left side and immediately felt burning pain. She reported the incident and a written report of the injury was completed that day. The appellant returned to work the next day and continued to perform her same duties until 18 June 2019 when she took 10 weeks’ long service leave. At the end of her long service leave, the appellant decided to retire on account of her physical and mental exhaustion from injury and other stressors of the work environment.
In 2020 the appellant attended upon her doctor for treatment to her left knee and was referred for an MRI scan which was carried out on 21 April 2020, over one year after the incident.[1] This MRI revealed a meniscal tear and osteoarthritis. The appellant came under the care of an orthopaedic surgeon, Dr Harbury, who referred the appellant to conservative treatment.
[1] Application to Resolve a Dispute (ARD), p 54.
The appellant made a workers compensation claim for injury to her left knee on 7 August 2020. By notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 August 2020, the respondent denied liability for her claim, on the basis that she did not sustain an injury within the meaning of ss 4, 4(b)(ii) or 9A of the Workers Compensation Act 1987 (the 1987 Act), thus denying an entitlement to weekly compensation or medical or related treatment arising from an injury.
The appellant subsequently commenced proceedings in this Commission on 2 July 2021. The issues before the Member for determination were those disputed by the respondent, namely, whether the appellant suffered an injury on 31 January 2019; the precise nature and mechanism of injury, and if an injury was sustained, whether the appellant suffered any incapacity for work or had a reasonable necessity for medical treatment. The matter was heard before Member Batchelor on 20 September 2021 but did not complete that day, with the parties subsequently filing written submissions in support of their respective cases.
For the reasons outlined below, the appellant did not succeed in her claim and the Member issued an award in favour of the respondent. It is from that decision that the appellant now pursues this appeal.

ON THE PAPERS

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

THRESHOLD MATTERS

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

THE EVIDENCE

Central to the Member’s determination was consideration of the appellant’s evidence as a whole, and the histories of injury contained therein. The evidence filed by the respondent shed little light on the nature of the appellant’s knee injury, other than revealing that the appellant was involved in a work grievance around that time and in the lead up to her resignation, for which she sought psychological treatment.
A significant piece of contemporaneous evidence is the Woolworths Group Safety Incident Report completed on the date of the incident, 31 January 2019. In this document, it is recorded that the appellant “was serving in smoke shop and finished serving and turning around rolled ankled [sic] stepping off mat and then felt it in knee” at 5.15 pm. The injury was recorded to be a “sprain/strain” to the left ankle and knee as a result of a “slip/trip”.[2]
[2] ARD, p 5.
Following the Safety Incident Report, there is limited documentary evidence specifically mentioning a knee injury, until 21 April 2020, when the appellant undertakes her MRI and is referred to Dr Harbury by her treating doctor, Dr Kolli. In the referral letter of 24 April 2020, Dr Kolli advises Dr Harbury that the appellant has had left knee pain for several weeks with “no history of injury or trauma”.[3] From Dr Kolli’s clinical records, only one undated entry reports that the appellant had injured her knee “20 months ago while working at supermarket” and that there was a recent flareup of pain.[4]
[3] ARD, p 56.
[4] ARD, p 95.
On examination on 30 April 2020, Dr Harbury takes a history of “significant pain in the knee … for about 8 months. This came on while she was working at the supermarket constantly twisting and pivoting within her kiosk and has persisted even though she is retired now”.[5]
[5] ARD, p 58.
The appellant then comes under the care of Ms Ashlea Musgrove, physiotherapist, on 7 May 2020. The initial consultation record states that the left knee pain “initially started after walking uphill and later same day twisting on planted foot. Difficulty identifying exact timeframe of when happened”.[6] On 16 July 2020, there is reference to the knee giving way while walking on uneven grass. On 20 August 2020, Ms Musgrove notes the appellant is “now going through workers comp”. Ms Musgrove reports back to Dr Kolli on 23 August 2020 that the appellant had been treated for “left knee pain secondary to patellofemoral degenerative change and an extruded medial meniscus tear”.[7]
[6] ARD, p 107.
[7] ARD, p 116.
On 7 August 2020, the appellant completed a Worker’s Injury Claim Form for an injury to her left knee and ankle on 31 January 2019 while “working in [the] smoke shop walking back and forward serving cigarettes and my knee and ankle gave out got pain and burning [sic]”. The form indicates the injury was reported to her manager.[8] On this same day, Dr Kolli issued a certificate of capacity confirming the appellant was first seen at the practice for the left knee injury on 7 August 2020. The injury mechanism notes this occurred “at work while walking felt pain in the medial side radiating around the knee and ankle”.[9] On 21 August 2021, Dr Kolli completed a questionnaire for the insurer in which the doctor says the appellant was under a lot of mental stress at the time of injury so “couldn’t bother about the knee problem [sic]”.[10]
[8] ARD, p 1.
[9] ARD, p 75.
[10] ARD, p 49.
After making her claim, the appellant was independently medically examined by Dr Reece, orthopaedic surgeon, at the request of her legal representatives. In a medico-legal report dated 1 October 2020, a history is provided that on 31 January 2019, the appellant “pivoted to the right to get some smokes out and had sudden severe pain in her left knee and ankle and the left knee gave way.”[11] The pain is described as something the appellant had never previously experienced. Dr Reece records that the appellant continued to work until June but “the pain in the knee became too much along with the fact that it had a negative effect on her mental health such that she did not feel she could continue working and, therefore, retired.” Dr Reece explains that the appellant did not discuss her knee with her GP as her mental health issues took precedence. The appellant’s pain has continued, causing her to limp and hobble.
[11] ARD, p 67.
Dr Reece diagnoses the appellant with medial compartment osteoarthritis with an associated degenerative tear in the meniscus. According to Dr Reece, the sudden twisting incident on 31 January 2019 caused the tear and was also the main contributing factor to the aggravation and acceleration of osteoarthritis.
In turning to the factual evidence, the appellant has provided a statement of 18 February 2021 in which she recounts the events of 31 January 2019. The appellant says that she was required to pivot back and forth in her work, and at around 2.00 pm:
“turned and put weight on my left side and immediately felt burning pain in my left knee and ankle. My left knee gave way and I could not bear any weight on my left leg. I immediately stopped working … I shuffled to the lunch room by myself with great difficulty.”[12]
[12] ARD, p 9.
The appellant returned to her duties with some difficulty, and upon finishing her shift, she iced her knee and took anti-inflammatory medication. She continued working in the days after injury despite “pain, swelling and discomfort”, hoping her knee injury would subside.[13] Some months later, on 8 May 2019, the appellant says she consulted Dr Kolli for mental and physical exhaustion due to “work stresses”, and thus took ten weeks’ long service leave from 18 June 2019. The appellant recalls walking around the block following a recommendation from her counsellor, but this resulted in her knee collapsing.[14]
[13] ARD, p 10.
[14] ARD, p 10.
The appellant did not return to work and resigned on 27 August 2019 due to “physical and mental exhaustion due to the injury and other stressors of the work environment”.[15] This is repeated in her letter of resignation.[16]
[15] ARD, p 10.
[16] ARD, p 14.
Of interest, the appellant explains that Dr Kolli queried why she did not report her “issue” earlier (presumably, this refers to the work-related knee injury), to which the appellant advised the doctor that she believed the pain would subside and she was focused on her mental health issues.
The Member also considered written submissions filed by the parties.
In its submissions, the respondent queried the reliability of the appellant’s evidence, highlighting the inconsistencies in the histories provided to the practitioners, with reference to Onassis and Calogeropoulos v Vergottis[17] in respect of the importance of contemporary documents, and Watson v Foxman[18] in terms of the fallibility of human memory. The respondent referred to the failure of Dr Reece to address the significant 15-month delay between the incident and when the appellant first sought treatment for her knee, and submitted that Dr Reece’s opinion had little probative value as it was based on a “twisting mechanism” in contrast with some other mechanisms reported in the evidence. The respondent submitted that the appellant’s injury, based on Dr Reece’s opinion, should not be accepted.
[17] [1968] 2 Lloyd’s Rep 403, 431 (Onassis).
[18] (1995) 49 NSWLR 315 (Watson).
The appellant submitted that the respondent had not tendered any contradictory evidence as to the circumstances of injury on 31 January 2019 outlined in the Safety Incident Report. Emphasis was placed on the contemporaneous significance of the Safety Incident Report. The appellant submitted that any concern in respect of her memory should not be used as a basis to refute the contemporaneous account of injury in the Safety Incident Report. The appellant submitted that Dr Kolli’s failure to advise of a history of trauma to Dr Harbury, as well as Dr Harbury’s reference to only 8 months of pain, was erroneous on the part of the doctors. Further, while it was conceded that the appellant may have had difficulty advising Ms Musgrove as to the onset of her symptoms for the purpose of physiotherapy treatment, the “twisting and planted foot” mechanism reported by the physiotherapist was consistent with the injury of 31 January 2019.

THE MEMBER’S REASONS

Having regard to the evidence as a whole, and the various discrepancies which laid therein, the Member ultimately determined that the appellant had failed to discharge the onus of proof on her to establish that she suffered an aggravation, acceleration, exacerbation or deterioration of osteoarthritis in her knee, or a tear in the medial meniscus as a result of the incident on 31 January 2019.
While the Member accepted that the appellant suffered a “sprain/strain” injury to her left ankle and knee as a result of a “slip/trip” on 31 January 2019 when she rolled her ankle as recorded in the Safety Incident Report, he did not accept this to be the nature of the injury which caused the claim for compensation before the Commission.
The Member referred to the inconsistent histories recorded in the Safety Incident Report, the appellant’s statement and Dr Reece’s report.[19] These inconsistencies included the time of the incident, and the mechanism of injury. The Safety Incident Report recorded that the appellant rolled her ankle on a rubber mat and continued work, which was in contrast to the history recorded by Dr Reece, of the appellant pivoting to the right to obtain smokes, causing sudden severe pain causing the knee to give way. Following the injury, the appellant, in her statement, highlights the severity of the incident by stating that she was not sure how long she would last due to the pain; however, she did continue working and it was noted by Dr Reece that the appellant did not have significant time off work following same.
[19] Morris v Woolworths Group Limited [2021] NSWPIC 441 (reasons), [66].
The Member ultimately did not accept that the mechanism recorded in the Safety Incident Report supported a twisting injury to the left knee as purported by the appellant and Dr Reece.[20] Given the alleged severe nature of the injury suffered as reported in the appellant’s statement, it was surprising to the Member that the appellant did not seek medical attention from Dr Kolli until April 2020, nor relate her knee condition to her employment until August 2020, which the Member referred to as a “significant omission”.[21]
[20] Reasons, [69].
[21] Reasons, [89].
The Member considered the treating evidence of Dr Kolli, Dr Harbury and Ms Musgrove, and was concerned as to the absence in the appellant’s evidence as to a satisfactory explanation as to why she did not:
(a)    mention her injured knee to Dr Kolli at the consultation on 8 May 2019;
(b)    seek medical attention for her claimed knee injury on 31 January 2019 until April 2020;
(c)    make reference to the mechanism of injury described in the Safety Incident Report;
(d)    make reference to, or explain the entries in, the clinical notes of the treating practitioners summarised above, and
(e)    inform Dr Kolli until the consultation of 7 August 2020 that she injured her knee at work on 31 January 2019.[22]
[22] Reasons, [81].
The Member referred to the authority of Onassis and Watson, and did not accept the appellant’s submission that the entries in the records of Dr Kolli and Dr Harbury were erroneous. The Member accepted those records, including Ms Musgrove’s, as an accurate record of what the appellant told the practitioners about her left knee.[23]
[23] Reasons, [82].
The Member confirmed the respondent’s submission that Dr Reece’s opinion was of little probative value, as it was based on a history of the incident which did not accord with what was in the Safety Incident Report. Accordingly, and on balance of the evidence, the Member did not accept Dr Reece’s opinion that employment was the main contributing factor to the aggravation of the appellant’s osteoarthritis, or that it caused the knee tear.[24]
[24] Reasons, [85].
The Member considered the appellant’s submission that the respondent could not provide medical evidence refuting the causative nature of the incident on 31 January 2019 or evidence as to another injurious cause. However, the respondent took issue with the opinion of Dr Reece, which the Member accepted was consistent with the onus remaining on the appellant to prove the necessary elements of her case in respect of injury, incapacity, and requirement for treatment.[25]
[25] Reasons, [88].
In regard to incapacity and medical treatment, the Member referred to the inconsistent opinion of Dr Kolli as to the appellant’s ability to work, and to the incorrect date of the compensation claim for medical expenses in respect of the left knee. Given the Member’s finding on injury, detailed reasons were not required in respect of the reasonable necessity of treatment.
The Certificate of Determination issued on 31 October 2021 records:
“The Commission determines:
1.     The Application to Resolve a Dispute is amended to restrict the [appellant’s] claim for weekly benefits to the period from 5 September 2020 to 3 October 2020
2.     The [appellant] has not discharged the onus on her to prove that the suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medical meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent.
3.     Award for the respondent in respect of such injury.
4.     The [appellant] has not suffered incapacity for any work from 5 September 2020 to 3 October 2020 as a result of injury arising out of or in the course of her employment with the respondent on 31 January 2019.
5.     Award for the respondent in respect of the claim for weekly benefits from 5 September 2020 to 3 October 2020.
6. Award for the respondent in respect of the claim for expenses pursuant to s 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

The appellant pursues two grounds of appeal.
Ground One: An error of mixed fact and law in that the Member failed to find that the appellant suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medial meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent.
Ground Two: An error of mixed fact and law in that the Member failed to find that the appellant was entitled to an award of weekly compensation and a general order providing for payment of her medical expenses.

NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides as follows:
“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.”
The approach to dealing with appeals under this provision has been the subject of a number of decisions at presidential level. Roche DP in Raulston v Toll Pty Ltd[26] set out the principles the Commission will have regard to on appeal (since 1 March 2021[27] applying to a ‘Member’ rather than an ‘Arbitrator’):
“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’.”
[26] [2011] NSWWCCPD 25 (Raulston), [19].
[27] The date of relevant commencement of the 2020 Act.

Additionally, in this case the Member has found that the appellant did not discharge the onus of proof which at all times resided with the appellant. The Member must feel an actual persuasion or be comfortably satisfied of the existence of a fact.[28] In undertaking this task, the Member was referred to and specifically relied upon the determination of the former President of the former Workers Compensation Commission, President Judge Keating, in Department of Education and Training v Ireland.[29] The relevant extract from Ireland was set out by the Member at reasons [84] in the following terms:
“In Ireland President Keating, after noting at [90] that Ms Ireland bore the onus of proof to establish that she did in fact suffer an injury to her lower back on a particular date, said the following at [91]–[92]:
‘91. In so doing, the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.
92. In State Rail Authority v Earth Line Constructions Pty Limited (in liquidation) [1999] HCA 3; (1999) 160 ALR 588 the High Court warned of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement in the instant case.’”
[28] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [55].
[29] [2008] NSWWCCPD 134 (Ireland).
I do not read from either party’s submissions that there is any contest about the authorities to be applied in the circumstances of this case.

LEGISLATION

Section 4 of the 1987 Act provides:
“4      Definition of “injury” (cf former s 6 (1))
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) 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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work (cf former s (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 59 of the 1987 Act defines medical or related treatment as follows:
“59    Definitions (cf former s 10 (2))
In this Division—
…
medical or related treatment includes—
(a)     treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(c)     (Repealed)
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.”

CONSIDERATION AS TO GROUND ONE

An error of mixed fact and law in that the Member failed to find that the appellant suffered an aggravation, acceleration exacerbation or deterioration of osteoarthritis, and a tear of the medial meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent.

The appellant argues that the Member made eight factual errors. These errors are described in the following terms:
“59. There [w]as a single episode of injury. There is pathology consistent with that episode of injury. No finding other than one attributing the relevant pathology to the only evidence as to a cause for such pathology was open to the Member.
60. It follows that there are a multitude of errors in the Member’s decision. He erred in:
(a) failing to find that the injury sustained on 31 January 2019 to the appellant’s left knee caused the aggravation of osteoarthritis in that knee and a tear of the meniscus;
(b) failing to find that the symptoms in the [appellant’s] left knee did not resolve;
(c) failing to accept that the relevant mechanism of injury involved the twisting of the left knee;
(d) failing to appreciate that there was no other event or explanation for the pathology revealed by the MRI other than the injury to the appellant’s left knee on 31 January 2019;
(e) placing misconceived and erroneous weight on the record of injury; recorded by a fellow worker in the Safety Incident Report;
(f) erroneously characterising and treating the sparse detail recorded in the Safety Incident Report as a comprehensive record of the circumstances of injury;
(g) rejecting the sole forensic report before him – the report of Dr Reece who had taken an essentially reliable (“broadly consistent” in the words of the Member) history of injury;
(h) failing to find the absence of any resolution of symptoms.
61. The foregoing errors are factual errors, escorted by errors of law in applying erroneous legal reasoning to arrive at the various factual conclusions.”[30]
[30] Appellant’s amended submissions dated 13 December 2021, [59]–[61].
Earlier in the appellant’s amended submissions are arguments in support of each of these alleged factual errors. I will deal with each of the alleged errors contained in [60(a)–(h)] below.
In broad terms, the respondent counters these arguments by stating that the Member’s findings with respect to the evidence and the weight to be given to various aspects of the evidence are within the province of a first instance decision maker and cannot be overturned unless they were wrong or were against the weight of the evidence. The respondent disputes the Member made any such error.
I will deal with each of the alleged factual errors below using the numbers from the appellant’s submissions.

As to [60(a)]: Failing to find that the injury sustained on 31 January 2019 to the appellant’s left knee caused the aggravation of osteoarthritis in that knee and a tear of the meniscus

With respect to this asserted error, the appellant argues as follows.
It was undisputed that the appellant suffered injury in her left knee and ankle on 31 January 2019.
The appellant relied upon a medico-legal report authored by Dr Lynette Reece on 1 October 2020.[31] The appellant relies upon the report of Dr Reece and states that the respondent did not proffer or rely upon any countervailing forensic opinion.
[31] ARD, p 67.
The appellant also relies upon the MRI scan of 21 April 2020.[32] The appellant asserts in relation to the MRI the following:
“There is no evidence as to a cause for the pathology revealed in the MRI, other than the undisputed traumatic frank incident on 31 January 2019, which resulted in the immediate onset of severe pain in that body part. There is moreover, no evidence of any left knee symptoms prior to that incident.”[33]
[32] ARD, p 54.
[33] Appellant’s amended submissions, [27].
The MRI expressed the following conclusion:
“Conclusion
Medial and patellofemoral degenerative changes.
Extruded medial meniscus with free edge radial tear posterior horn.
Joint effusion.”[34]
[34] ARD, p 54.
Dr Reece posited the following opinion:
“I believe that work was a substantial contributing factor to the injury. Prior to the incident on 31/01/2019, Dianne had been able to do that role within Woolworths for many years and then suddenly with the twisting incident and the tear in the medial meniscus the pain started. I believe that is due to tearing of her medial meniscus from that incident.
…
I don't believe work is the main contributing factor to the osteoarthritis it is the main contributing factor to the meniscal tear. I do believe Dianne's work is the main contributing factor to the aggravation and acceleration and deterioration of her osteoarthritis in her left knee.”[35]
[35] ARD, p 68.
In response to the report of Dr Reece, the respondent says that it was of limited probative value as it was based on an inaccurate history.[36]
[36] Respondent’s submissions, [34].
The Member dealt with Dr Reece’s opinion at reasons [83]–[86]. The Member found that Dr Reece’s report was of limited probative value in determining causation of the condition in the left knee as revealed in the MRI scan dated 22 April 2020. This is because in the Members’ view, Dr Reece’s history does not accord with the history of the incident as found in the Safety Incident Report.[37] Critically, the Member found as follows:
“In this case, it is a significant omission that the [appellant] did not seek treatment for the left knee that she injured on 31 January 2019 until the consultation with Dr Kolli in April 2020 when the doctor referred the [appellant] to Dr Harbury. At that consultation Dr Kolli recorded left knee pain for the previous weeks and no history of injury or trauma. The [appellant] continued to work for the respondent from the date of the incident on 31 January 2019 until she ceased on or about 18 June 2019 when she commenced her long service leave.”[38]
[37] ARD, p 5.
[38] Reasons, [89].
As a consequence of this approach, the Member found the appellant did not discharge her onus of proof.
A problem for the appellant’s submission under this ground is the Safety Incident Report. Clearly the Member was troubled by the difference in the history of the incident recorded by Dr Reece as opposed to what was recorded in the Safety Incident Report. On appeal, the appellant now asserts that the Member ought to have treated the Safety Incident Report with caution, consistent with the approach taken with regards to medical records.[39] In particular, there is now a dispute about the mechanism of the injury as recorded in the Safety Incident Report. Set out below is the Safety Incident Report which relevantly states as follows:
“Di was serving in smoke shop and finished serving and turning around rolled [ankle] stepping off mat and then felt it in knee”.[40] (emphasis added)
[39] See Mason v Demasi [2009] NSWCA 227 (Mason), per Basten JA.
[40] ARD, p 5.
The appellant below asserted what she described as an “unchallenged account of a twisting injury to her left ankle and knee, recorded on the date of injury by the respondent.”[41]
[41] Submissions on behalf of the applicant before the Member, 21 October 2021, [16].
The Member found as follows:
“A close examination of the Safety Incident Report does not, in my view, support the submission that Ms Morris suffered a twisting injury to her left knee on 31 January 2019.”[42]
[42] Reasons, [69].
There are a number of problems with this submission. I accept, as argued by the respondent, that this was not an argument advanced before the Member. To the contrary, the appellant placed significant reliance upon the Safety Incident Report in her written submissions before the Member.[43] Indeed, the fact that the Safety Incident Report was “contemporaneous” was highlighted in the appellant’s submissions before the Member.[44] Additionally, the appellant has not taken issue with the contents of the Safety Incident Report in her statement. To the contrary, it was submitted below as follows:
“The contemporaneous evidence recorded in the document [the Safety Incident Report] is consistent with the [appellant’s] account of injury in her statement.”[45] (emphasis added)
[43] Submissions on behalf of the applicant before the Member, 21 October 2021, [8]–[11], [21].
[44] Submissions on behalf of the applicant before the Member, 21 October 2021, [11], [21].
[45] Submissions on behalf of the applicant before the Member, 21 October 2021, [11].
Indeed the Member remarked upon the discrepancies between the Safety Incident Report, the appellant’s statement and the history recorded by Dr Reece.[46] Notwithstanding how the matter was conducted below, the appellant now attempts to undermine the history that was recorded in the Safety Incident Report.[47]
[46] Reasons, [66].
[47] Appellant’s amended submissions, [39]–[41].
In terms of the mechanism of the injury, the Safety Incident Report records as follows:
“What happened?
Rolled ankle on rubber mat edge
If you have any further information, add it here
Di was serving in smoke shop and finished serving and turning around rolled [ankle] stepping off mat and then felt it in knee
What were the immediate actions taken? (this includes notifying IMC / Regulator / Emergency Services)
kept working away.
…
How did the injury occur?
Slip / Trip
What equipment or substance was involved?
Anti fatigue mat.
…
“Why did the incident happen? Provide a detailed description of the investigation findings
have spoken to Di around the incident to be more aware and careful when near the edge of mat”.[48]
[48] ARD, pp 5–8.
In the appellant’s statement, she says the following about this report:
“I completed an injury report that day.”[49]
[49] ARD, p 10, [15].
The appellant does not state which aspects of the Safety Incident Report were wrong or should not have been relied upon by the Member. The appellant herself has taken no issue with what is recorded in the Safety Incident Report. Indeed the mechanism of the injury as involving a “mat” is recorded on no less than four occasions in the document.
It is clear from a reading of the Member’s decision that he was troubled by the “discrepancies” between the Safety Incident Report which he described as a “contemporaneous document”[50] and histories later given by the appellant in her statement of 18 February 2021, over two years after the event on 31 January 2019, and Dr Reece’s history recounted in her medical report of 1 October 2020. Critically, the Member was concerned, notwithstanding the severe nature of the asserted injury, that the appellant did not seek medical attention for the injury until April 2020.[51] Additionally, though there is evidence that the appellant did consult with Dr Kolli in 2019, there is no mention of an injury to the knee. Indeed the appellant did not consult Dr Kolli regarding her knee injury until April 2020.
[50] Reasons, [67].
[51] Reasons, [67].
On appeal, intervention depends upon the existence of and then the correction of error. At no stage did the appellant submit that the Safety Incident Report had to be treated with caution as is now submitted. Even though the appellant herself placed reliance upon the Safety Incident Report and the contemporaneous report of injury, no issue was taken by the appellant with the contents of that document as is done now on appeal. No error in approach on behalf of the Member can arise in relation to these matters.
In light of the factual matters that I have also set out above, it was within the decision-maker’s discretion not to make the finding which this appeal ground particular asserts should have been made and that it was an error not to do so. The appellant has not identified where the Member was “wrong” in a Raulston sense in terms of the findings that were made. Rather, the appellant has made a number of assertions:
(a)    accepted injury on 31 January 2019;
(b)    that the pain and discomfort arising from this injury did not abate, which as described above is not correct, and
(c)    the respondent did not proffer any medical case and as a result, the appellant’s medical case had to be accepted.
In terms of the appellant’s case, there was indeed an injury on 31 January 2019 as is asserted in (a) above. However, the proposition in (b) above is contestable and I deal with that with respect to [60(b)] and [60(h)] below. Finally in relation to (c) above, this submission fails to deal with the appellant’s own obligation to satisfy her onus of proof. The Member ultimately found that the appellant did not discharge this burden.
The Member was taken to the following passages from authority. In Onassis Lord Pearce says as follows:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.”[52] (emphasis added)
[52] Onassis, 431.
Additionally, the Member had been taken to Watson where McLelland CJ said as follows:
“All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”[53]
[53] Foxman, 319.
The Member also had regard to Ireland and “the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement.”[54]
[54] Ireland, [92].
It was entirely within the decision-making function of the Member to carefully evaluate the contemporaneous evidence which was the Safety Incident Report. Indeed the appellant (below) placed much reliance upon this document as substantiating the appellant’s claim, stating that it was “consistent” with the appellant’s story.
The Member found that this was not correct and that there were relevant differences between what was recorded in the Safety Incident Report, the history given to Dr Reece and the appellant’s statement. But over and above this, the Member was troubled that the appellant did not seek treatment for the left knee until a consultation with Dr Kolli in April 2020, well over a year after the accident on 31 January 2019. Consistent with the then President’s direction in Ireland regarding a reliance upon evidence of facts, the Member reached his ultimate finding based upon the following facts:
(a)    an agreed injury on 31 January 2019;
(b)    on the day of the accident, the appellant reported the matter to her employer who produced the Safety Incident Report, the terms of which were completed relatively contemporaneously to the injury (at least it was completed on the same day);
(c)    the appellant had no time off work until she commenced long service leave on 18 June 2019;
(d)    medical treatment was not sought until the appellant saw Dr Kolli in April 2020;
(e)    the MRI scan was undertaken on 21 April 2020;
(f)    Dr Lynette Reece reported on 1 October 2020, and finally
(g)    the appellant’s statement was dated 18 February 2021.

The Member did not make a finding that the agreed injury on 31 January 2019 caused the aggravation of osteoarthritis in the appellant’s left knee and a tear of the meniscus on the basis that the Member was not satisfied that the appellant had discharged her onus of proof. This was a finding that was open to the Member based upon a consideration of the evidence, not just the selected assertions pursued by the appellant. No error has been identified and this particular of error has not been established.

As to [60(b)]: Failing to find that the symptoms in the [appellant’s] left knee did not resolve

The appellant asserts the following with respect to this asserted error:
“In the current case, the appellant’s evidence is that her left knee pain did not abate. There is no medical case tendered by the respondent to contradict that account.”[55]
[55] Appellant’s amended submissions, [23].
This submission is then supported by the history taken by Dr Reece as recorded in the report of 1 October 2020 and outlined in the appellant’s amended submissions at [24].
The appellant asserts that this history of symptoms was not disputed.[56]
[56] Appellant’s amended submissions, [25].
This latter submission is not correct. The respondent challenged the history recorded by Dr Reece. These challenges are noted at various sections of the respondent’s written submissions before the Member dated 5 October 2021.[57]
[57] See respondent’s written submissions dated 5 October 2021, [48]–[49], [54]–[60], [62].
It is not necessarily clear what the factual error is, in the Raulston sense, that the appellant is pursuing in this ground. It appears to be an argument that the appellant’s evidence, and that of her treating practitioners (and the medico-legal doctor, Dr Reece), was that having been injured on 31 January 2019, her pain thereafter did not abate and consequently, I take it that the argument is that any failure to make this finding was against the evidence and/or the weight of the evidence and was as a consequence a factual error.
The starting point in evaluating this argument is of course the statement of the appellant herself.
The appellant’s statement is dated 18 February 2021.[58]
[58] ARD, p 9.
Having described the injury on 31 January 2019, the appellant says as follows:
“17. On 1 February, 2019 I attended work. I advised Mark that I was not sure how long I would last due to injury and lack of sleep. I was still in a lot of pain and my left knee was swollen.
18. For the following days, I continued to attend work despite the pain, swelling and discomfort in my left knee as I hoped the injury would go away and I was scared of losing my job.
…
20. On or around 18 June 2019, I took ten (10) weeks long service leave due to stress.”[59] (emphasis added)
[59] ARD, 10
On the appellant’s evidence, she worked in her same role performing the same duties from the date of the injury until 18 June 2019, a period of approximately 4 ½ months. However, [18] of the appellant’s statement which I have set out above seems to limit the pain and discomfort to the days immediately following the injury on 31 January 2019.[60] That passage of the appellant’s statement could not be considered to provide a history of unabated pain and discomfort as it has been submitted. The post injury evidence of disability from the appellant herself was not strong, or consistent with consistent pain. In particular, the passage at [18] of her statement talks about feelings of pain, swelling and discomfort in the days immediately following the 31 January 2019 incident. This could not be construed as covering the entirety of the period from the injury until the appellant commenced her long service leave. It leaves the reader to speculate about pain and disability during that period. Whilst the Member made no particular factual finding that the appellant’s pain had resolved itself, it was not a factual error for the Member to fail to make the finding complained of in this aspect of the appeal. The state of the evidence was not such as to compel the making of such a finding.
[60] Appellant’s statement, ARD, p 10.
This particular of the first appeal point is dismissed

As to [60(c)]: Failing to accept that the relevant mechanism of injury involved the twisting of the left knee

The appellant pleaded her case in the following manner:
“Whilst serving customers in the smoke shop, the worker went to turn and step off the rubber mat, putting her weight on her left leg. In doing so, she twisted her left ankle and left knee and felt immediate burning pain in both the left knee and ankle.”[61]
[61] ARD, Injury Details.
In the appellant’s submissions before the Member, the following was asserted:
“That history of onset is important in that it traces the condition to a mechanism of twisting and pivoting in the workplace. Although the [appellant] experienced pain on 31 January 2019 as a consequence of a single twist and pivot, Dr Harbury’s history of injurious work activities would cover that episode. No other source of injury, external to the [appellant’s] employment, is identified by Dr Harbury.”[62]
[62] Submissions on behalf of the applicant before the Member, 21 October 2021, [20].
Subsequently in the same submission, reliance is placed upon various medical histories identifying the twisting nature of the injury.[63]
[63] Submissions on behalf of the applicant before the Member, 21 October 2021, [19], [24], [27], [32].
As I have described above, the Safety Incident Report records a turning motion.[64] The appellant’s statement of 18 February 2021 describes the appellant as having “turned”.[65]
[64] ARD, p 5.
[65] Appellant’s statement, ARD, p 9, [8].
The appellant in submissions in support of this ground says as follows:
“If the sudden severe pain which the appellant experienced in her left knee on the date of injury was not caused by turning, pivoting or twisting (i.e. motion not in a straight line), what causal mechanism explains the sudden onset of those symptoms? No evidence has been tendered by the respondent as to a cause, and the Member does not explain what he considers to have caused such onset.”[66]
[66] Appellant’s amended submissions dated 13 December 2021, [49].
Whilst the appellant uses the terms “turning, pivoting or twisting” interchangeably, the specific failure alleged in this ground is that the Member failed to accept that the relevant mechanism of injury involved “twisting” of the left knee. For the reasons outlined above, the Member found that the “injury occurred in the manner described in that contemporaneous document”,[67] meaning the Safety Incident Report. And having closely examined that document, the Member found that it “does not, in my view, support the submission that Ms Morris suffered a twisting injury to her left knee on 31 January 2019.”[68]
[67] Reasons, [67].
[68] Reasons, [69].
Given the description of the injury in the appellant’s own statement and how it is recorded in the Safety Incident Report, it is entirely within the proper exercise of the Member’s fact finding discretion to make the ultimate finding which appears at reasons [69], namely that he did not accept that the appellant suffered a twisting injury.
This particular of error is not established.

As to [60(d)]: Failing to appreciate that there was no other event or explanation for the pathology revealed by the MRI other than the injury to the appellant’s left knee on 31 January 2019

The appellant makes the following submissions in support of this ground:
“There is no evidence as to a cause for the pathology revealed in the MRI, other than the undisputed traumatic frank incident on 31 January 2019, which resulted in the immediate onset of severe pain in that body part. There is moreover, no evidence of any left knee symptoms prior to that incident.”[69]
“Again, there was no case in any evidence before the Member to suggest that the pathology in the appellant’s left knee, revealed by MRI, resulted from any cause other than the undisputed trauma to that body part on 31 January 2019.
That raises how the Member could have declined the claim in the absence of any explanation, whether forensic or emerging from other evidence, for the pathology revealed in the MRI.”[70]
[69] Appellant’s amended submissions, [27].
[70] Appellant’s amended submissions, [31]–[32].
This argument was dealt with by the Member at reasons [87] and [88]. Indeed the argument pursued in this particular of error was conducted before the Member below. In particular at reasons [88] the following submission on behalf of the respondent was recorded by the Member:
“The respondent does take issue with the mechanism of injury relied upon by Dr Reece, and the failure of that doctor to deal with what is recorded in the Safety Incident Report, and also submits that Dr Reece fails to deal with the delay in symptoms and the impact of other incidents involving the knee giving way or being aggravated in non-work settings.”[71] (emphasis added)
[71] Reasons, [88].
The MRI, as I have described above, was undertaken on 21 April 2020.
The Member details an incident which occurred in 2019[72] where the following history is given. In response to advice from a counsellor who suggested that the appellant undertake walking to assist with her mental health the following is recorded:
“She started walking around the block as recommended by the counsellor, but on the first occasion says her left knee collapsed and she fell to the ground. She shuffled/hobbled home, put ice on her left knee and took Voltaren. ‘The pain and swelling in my left knee was extreme.’”[73]
[72] Reasons, [58].
[73] This quote from the appellant is taken from ARD p 12 at [22].
There are also other non-work incidents referred to at reasons [61]–[62], although it appears the event recorded at [62] post-dated the MRI.
As a consequence, I do not accept the appellant’s submission that there was “no other event or explanation” for the pathology revealed in the MRI as is alleged in this appeal ground. The evidence revealed at least one other incident which pre-dated the MRI about which the specialist relied upon by the appellant, Dr Reece, made no remark.
In any event, the submissions in support of this ground ignore that at all times, the onus of proof resided with the appellant and this is precisely the point made by the Member at reasons [88] when dealing with the mechanism of the injury.
This error as presented by the appellant has not been made out. As a consequence, this particular of error is dismissed.

As to [60(e)]: Placing misconceived and erroneous weight on the record of injury; recorded by a fellow worker in the Safety Incident Report

In this appeal, the appellant mounts a serious attack upon the veracity of the Safety Incident Report document.[74] The appellant goes so far as to submit that the cautionary direction with respect to medical records arising from the Court of Appeal authority of Mason should be applied in those terms to a different class of document, namely a contemporaneous record of injury. There are a number of problems with this submission. On appeal, error of fact, law or discretion must be identified. At no stage before the Member did the appellant assert that the Safety Incident Report needed to be treated with caution, to the contrary its veracity was urged upon the Member as being a contemporaneous record consistent with the appellant’s account of injury.[75] And later in the same submissions before the Member:
“The unchallenged evidence of the [appellant], and the contemporaneous ‘Safety Incident’ document confirm the true date of injury and onset of symptoms.”[76]
[74] Appellant’s amended submissions, [38]–[41].
[75] Submissions on behalf of the applicant before the Member, 21 October 2021, [11].
[76] Submissions on behalf of the applicant before the Member, 21 October 2021, [21].
Having urged the Member to accept the contents of the Safety Incident Report, it cannot by definition be an error to reject that submission and proceed to treat the document with caution as is now alleged.
In any event, I do not accept that the principles arising from Mason with respect to medical records are applicable to the circumstances of this case and the completion of the Safety Incident Report. As Basten JA said in Mason, apparent inconsistencies should be approached with caution for the reasons set out at [2] of Mason. This is a well-known principle which directs caution because the purpose of medical treatment is different from a later forensic exercise. Unsurprisingly, the record is more likely to reflect the purpose of medical treatment and will not purport to be a complete history or proof of evidence for use in later legal proceedings.
This is to be contrasted with the context and purpose of the Safety Incident Report. Contrary to the purpose of medical records, the specific purpose of the Safety Incident Report[77] is to record, in question and answer form, details of the incident. In this case it is a contemporaneous record made on the day of the occurrence of the accident. It is not a medical record created days, weeks or months later for a different purpose. Indeed the purpose of this document is to record and capture details of the incident in a timely manner. The context in which the document was created is also important. As soon as the appellant raised the fact of the injury having occurred, she was directed to and did in fact report the injury and have it recorded. The appellant’s evidence confirms this and takes no issue with the document.
[77] ARD, p 5.
The fact that this contemporaneous document may not have the detail of a proof of evidence is not to the point. The Court of Appeal has recently dealt with the issue of witness evidence and documentary evidence in ET-China.com International Holdings Ltd v Cheung[78] per Bell P (as he then was) in the following manner:
“27. Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):
‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’ (emphasis added [by Bell P])
28. Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.
29. Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.” (emphasis added)
[78] [2021] NSWCA 24 (Cheung).
As has been described in Onassis above, the law has traditionally placed weight upon a contemporaneous record. The appellant’s current submission would seek to deviate from that longstanding approach. That is not to say that contemporaneous documents cannot be challenged, and there can be many reasons as to why the veracity of such a document can be challenged, but no such challenge to the integrity of the document was made before the Member. This particular of error has not been established and is consequently dismissed.

As to [60(f)]: Erroneously characterising and treating the sparse detail recorded in the Safety Incident Report as a comprehensive record of the circumstances of injury

This particular is a differently expressed attack upon the Member’s reference and reliance upon the Safety Incident Report. I have already dealt with this matter in the above particulars. One of the criticisms under this particular of asserted error is that the Safety Incident Report contained “sparse detail”. As per the extract from Cheung I have referred to above, and in particular [28] of that decision, such documents will never be a complete record of events, and as Cheung establishes, such a document must be understood and read in its context. There was no submission advanced to the Member which said that due to the “sparse detail” in the Safety Incident Report, it could not be relied upon. It was an important document which the Member gave close and careful attention to. The appellant urged the Member to accept the veracity of the Safety Incident Report as establishing injury and cannot now complain that the Member in fact relied upon that same document. There is no error in this approach and no submission that the Member should have treated the document as is alleged in this particular was made below.

As to [60(g)]: Rejecting the sole forensic report before him – the report of Dr Reece who had taken an essentially reliable (“broadly consistent” in the words of the Member) history of injury

Under this particular of error, the appellant asserts that the Member rejected the report of Dr Reece. Strictly, this submission is not correct. The report of Dr Reece was before the Member who made the following findings:
“Because the opinion of Dr Reece is based on a history of the incident on 31 January 2019 which does not accord with the history of that incident as recorded in the Safety Incident Report, it is of limited probative value [in] determining the causation of the condition in the left knee shown [on] the MRI scan dated 22 April 2020”[79]
[79] Reasons, [83].
The Member’s approach to considering Dr Reece’s report is consistent with how such expert material is dealt with in a jurisdiction such as the Commission where the rules of evidence do not apply. This was examined by the Court of Appeal in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11[80] where Beazley JA (as her Honour then was) said as follows:
“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.
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.”[81]
[80] [2011] NSWCA 11 (Hancock).
[81] Hancock, [82]–[83].

However, I will not consider this appeal point simply on the basis of the use of the word “rejecting” which is perhaps not apt for the point the appellant is trying to make. Clearly the appellant is complaining about how the Member dealt with Dr Reece’s report and points to an apparent inconsistency in terms of the criticism of Dr Reece’s history at reasons [83] (see [107] above) and the Member’s remark that the history taken by the doctor was “broadly consistent with what is recorded in the Safety Incident Report”.[82] Rather, I will deal with this particular of the error alleged on a broader basis than simply that the report was rejected.
[82] Reasons, [66].
I do not accept this submission. Firstly, the Member having made the remark that the history was “broadly consistent” at reasons [66] then goes on to describe a number of “discrepancies” between three documents. They are the Safety Incident Report, the appellant’s statement and the history recorded by Dr Reece. At reasons [66(a)]–[66(i)] the Member then details the discrepancies between these three sources of evidence. This was a proper enquiry for the Member to undertake.
Ultimately the Member at reasons [86]–[89] discussed both parties’ submissions regarding the utility of Dr Reece’s report and was ultimately not satisfied, expressing this dissatisfaction in the following terms:
“Reading the report of Dr Reece as a whole, it may be that reference to the right knee in the report is a typographical error, and that the reference should be to the left knee. Even accepting that such is the case, the difficulty remains in the acceptance of the opinion as to causation in the report because of the inconsistency between the mechanism of injury described in the Safety Incident Report and that relied upon by Dr Reece.”[83]
[83] Reasons, [86].
And further:
“In this case, it is a significant omission that the [appellant] did not seek treatment for the left knee that she injured on 31 January 2019 until the consultation with Dr Kolli in April 2020 when the doctor referred the [appellant] to Dr Harbury.”[84]
[84] Reasons, [89].
At reasons [88] the Member had dealt with the respondent’s submissions about the delay in symptoms which Dr Reece had not commented upon, which the Member remarked was a submission “consistent with the onus remaining upon the [appellant] to prove the necessary elements of her case in respect of injury, incapacity, and the reasonable necessity for medical treatment she claims in the proceedings.”[85]
[85] Reasons, [88].
Contrary to the appellant’s submission in this particular of error, the report of Dr Reece was not relied upon by the Member for a number of reasons, the history taken by Dr Reece being one of them.
No error has been established in this approach to the report of Dr Reece, indeed the Member’s approach is consistent with the approach to expert evidence taken in a Commission such as this and consistent with authorities such as Hancock.
This particular of error is dismissed.

As to [60(h)]: Failing to find the absence of any resolution of symptoms

This particular of error can be dealt with relatively shortly. In many respects, it is a repetition of the failure asserted in particular [60(b)] above. For the reasons that I have dismissed the particular appearing in [60(b)] above, this particular, which is submitted in virtually the same terms, is also dismissed.

CONSIDERATION AS TO GROUND TWO

An error of mixed fact and law in that the Member failed to find that the appellant was entitled to an award of weekly compensation and a general order providing for payment of her medical expenses.

In support of this ground, the appellant submits as follows:
“It follows as a consequence of the matters outlined in support of ground 1 of these submissions that there must be error in the Member’s award.”[86]
[86] Appellant’s amended submissions, [62].
Ground Two relies upon for its establishment the upholding of the errors alleged in Ground One.
As I have dismissed the errors contained in Ground One for the reasons outlined above, Ground Two as a logical consequence must also fail.
Ground Two is dismissed.

DECISION

The Certificate of Determination dated 31 October 2021 is confirmed.

Judge Phillips
President

3 August 2022