Port Marina Pty Ltd v McKinnon - [2023] NSWPICPD 76

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Port Marina Pty Ltd v McKinnon [2023] NSWPICPD 76
APPELLANT:	Port Marina Pty Ltd
RESPONDENT:	Jodie McKinnon
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3896/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	29 November 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – the worker slipped and fell onto her left side and ruptured a breast implant – whether the worker sustained an injury within the meaning of section 4 of the Workers Compensation Act 1987 – May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 discussed and applied – whether the Member considered relevant evidence – adequacy of reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S McMahon, counsel
Turks
Respondent:
Mr G Young, counsel
Fern Lawyers Pty Ltd
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	25 November 2022

INTRODUCTION

The respondent worker, Ms Jodie McKinnon, commenced employment as a cleaner with the appellant, Port Marina Pty Limited, in about February 2021.
Approximately 20 years prior to this employment, the respondent had undergone bilateral breast augmentation surgery. The respondent states that she never experienced any trouble with the implants over the years up until the accident, which is the subject of these proceedings.
On 6 May 2021 whilst working as a cleaner for the appellant, the respondent was mopping a bathroom floor when she slipped on the wet floor. In her statement dated 10 June 2022, the respondent describes “landing heavily on my left breast and left side. I felt immediate pain to my left breast, and it felt tender to the touch. I did not notice a change in colour however, I felt as though my breast was bruised and swollen.”[1] The respondent attended upon her medical practitioners with an MRI subsequently confirming a capsular rupture in the left breast.[2]
[1] Application to Resolve a Dispute (ARD), p 2, [18]–[19].
[2] Report of Dr Colin Chong, 24 May 2021, ARD, p 103.
The respondent’s claim for weekly compensation and surgery, to remove and replace the damaged breast implant, was denied by the appellant.[3]
[3] Notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998, 31 August 2021, ARD, p 5.
The matter was heard before Member McDonald on 14 September 2022. As the matter did not finish on that date, the parties exchanged and filed written submissions. The Member issued the decision on 25 November 2022,[4] finding largely in favour of the respondent.[5] It is from this decision that the appellant appeals.
[4] McKinnon v Port Marina Pty Ltd [2022] NSWPIC 654 (reasons).
[5] The Member made an award for the appellant with respect to the secondary psychological injury.

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 – 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

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

THE EVIDENCE

The only party to serve evidence in this matter was the respondent. The appellant's submissions were based upon the evidence served by the respondent.

The lay evidence

There is a single statement from the respondent dated 10 June 2022[6] in support of her claim. The respondent states that she had breast augmentation surgery 20 years ago and had never experienced any complications. The respondent describes the circumstances of the injury and of feeling immediate pain in her left breast and that it felt “tender to touch”.[7]
[6] ARD, p 1.
[7] ARD, p 2, [18]–[19].
The respondent then goes onto describe the history of her medical treatment,[8] which is described below.

The medical evidence

[8] ARD, pp 2–3, [22]–[37].

The general practitioner

After suffering the fall on 6 May 2021, the respondent attended upon her general practitioner (GP), Dr Wai at The Good Shepherd Medical and Dental Centre.
The consultation note on 6 May 2021 records:
“injury a week agao at work
left breast pain
nil brusie
Soft tiisue injur? or tear
check USG breast”[9].[10] (spelling as per the original)
An ultrasound scan is ordered, noting left breast pain.[11]
[9] ARD, p 87.
[10] The Member found the doctor’s reference to the injury being a week ago may be a typographical error, see reasons [61]. No issue is taken with this remark on appeal.
[11] ARD, p 88.
The next visit is on 15 May 2021. The GP records “left breast area, pain … need stronger painkiller.” The reason for the visit is described as “Pain management”.[12]
[12] ARD, p 88.
On 19 May 2021 the respondent returns to the GP complaining of left breast area pain and the doctor again records “need stronger painkiller.” The reason for this visit is also recorded as “pain management.” The next consultation is by telephone on 20 May 2021 which discusses the ultrasound, noting the results were not ready.[13]
[13] ARD, pp 88–89.
On 22 May 2021 the GP consults with the respondent, providing the following diagnosis “left Breast Implant intracapsular rupture.” The GP records in addition “severe pain” and referral letters are written to Port Macquarie Base Hospital.[14]
[14] ARD, p 89.
A telephone consultation takes place on 27 May 2021 where the GP records that an MRI breast scan had taken place and that pain management was the reason for the visit pending the result of the MRI scan.[15]
[15] ARD, p 89.
On 1 June 2021, the respondent is seen by Dr Wai again. The respondent’s medication is reviewed and referrals to surgeons are written.[16]
[16] ARD, p 90.
Further consultations are recorded between 28 June 2021 and 14 February 2022 which record the respondent’s complaints of pain, pain management, referrals, the progress of her Workcover claim, her psychological state as well as other non-accident related treatment.[17]
[17] ARD, pp 90–102.

The MRI

An MRI was performed on the respondent’s left breast on 24 May 2021.[18] Dr Colin Chong reported that the MRI revealed “intracapsular rupture of the left breast implant” and suggests surgical review.
[18] ARD, p 103.

The treating specialists

The respondent consulted Dr Bruce Hodge, surgeon, who reported on 6 July 2021. Dr Hodge writes that “scans identified a small rupture of her left breast prosthesis. She describes some pain within her breast following this.” Dr Hodge noted the breast felt “quite normal” with “no overt significant findings.”[19]
[19] ARD, p 27.
Dr Guy Hingston, surgeon, saw the respondent on 2 August 2021 and his report bears that date. He confirms that the respondent fell on her left side at work in May, hearing a ‘crack’ in her left breast. Dr Hingston says that the MRI confirmed a rupture in the left breast implant. He recommended removal and replacement of both implants in the respondent’s breasts.[20]
[20] ARD, p 30.

The medico-legal specialist

The respondent consulted Dr Howard de Torres, surgeon, on 31 January 2022 for the purposes of the provision of a medico-legal opinion. Dr de Torres’ first report is dated 11 February 2022.[21] Dr de Torres took a history of the respondent’s fall at work, “hitting her left breast, immediately feeling pain and discomfort in that breast.” He records her complaints of chest pain to her GP and notes that the investigations revealed a rupture to the left implant. Beneath the heading “Problems”, Dr de Torres writes that the left breast was hard, it felt tight and “uncomfortable continuously”. He diagnosed “traumatic rupture of the left breast implant resulting in capsular contraction and pain.”[22] The doctor says that the injury at work caused this problem. Dr de Torres says that “[a] fall as described could be sufficient to cause this condition”.[23]
[21] ARD, p 14.
[22] ARD, p 15.
[23] ARD, p 16, answer to question 6.
Dr de Torres was requested to supply a supplementary report. That report is dated 1 June 2022.[24] Dr de Torres sets out the following views in response to three questions posed by the respondent’s solicitor:
“1. Your opinion on whether our client suffered a pathological change rather than damage to her breast implant (i.e. ‘artificial member’)? Please provide your clinical reasoning.
It is my belief that implants cannot rupture except by sharp trauma. Capsular contracture in itself usually only causes an implant to fold. An implant itself can sustain considerable blunt trauma without rupture; however, falling on pointed edge can rupture the implant.
2. If the answer to paragraph 1 is ‘yes’, your opinion on whether the subsequent pathology of capsular contraction is caused by the fall on 6 May 2021 during the course of her employment with Port Marina Pty Limited? Please provide your clinical reasoning.
A fall can cause capsular formation due to inflammation, e.g. bruising forming in association with the implant, and then the capsule contracting causing severe folding (and this can lead to rupture on occasions at the pointed end of the contracture). Therefore, I consider that the capsular contracture was caused by bruising from the fall.
3. Please provide any other relevant commentary.
It is unlikely the implants have ruptured in this case, but it is likely they will rupture during their removal, which now needs [to] be done because of the contracture of the capsules leading to deformity.”[25]
[24] ARD, p 17.
[25] ARD, p 18.

The section 78 notice

The appellant’s insurer issued a notice under s 78 of the 1998 Act on 31 August 2021 denying liability for the claim.[26] The insurer declined the claim in the following terms:
“EML is of the opinion that your breast implants are defined as ‘artificial members’ in accordance with section 74 of the Workers Compensation Act 1987. Section 74 states that a worker who has met with an accident arsing out of or in the course of their employment and whose artificial member is damaged as a result of the accident, is entitled to the costs of repairing or replacing the item.
However, EML considers that in order for an entitlement under section 74 of the Workers Compensation Act 1987 to arise, you must have sustained ‘an injury’ as defined by section 4 of the Workers Compensation Act 1987. That is, that you suffered a pathological change rather than merely damage to any artificial member.
Based on you having not be [sic] diagnosed with any pathological change to your breasts, or any other body part by your treating doctors, you have not sustained ‘an injury’ as defined in s 4 of the Workers Compensation Act 1987.”
[26] ARD, pp 5–9.

THE MEMBER’S REASONS

In this appeal, the appellant specifically takes issue with the Member’s reasons at [67]–[71], which I have set out in full below. It is not necessary to set out a comprehensive summary of the entirety of the Member’s reasons in view of the confined nature of the issues raised on the appeal. I will briefly refer to the relevant parts of the Member’s reasons below.
The Member noted that the respondent discontinued her claim for s 60 expenses with respect to treatment to the right breast during the conciliation phase of the proceedings.[27]
[27] Reasons, [6].
The Member noted that the respondent worked for two other entities in addition to working for the appellant. She recorded the parties’ agreement that the respondent’s pre-injury average weekly earnings in all three jobs were $1,098.[28]
[28] Reasons, [7].
The Member proceeded to set out the evidence,[29] commencing with the respondent’s statement dated 10 June 2022. It was noted that after she slipped, the respondent went straight to Dr Wai who referred her for an MRI scan, and that a week later, she complained of stronger pain and Dr Wai prescribed Endone and subsequently Targin. The respondent underwent an MRI scan on 24 May 2021.
[29] Reasons, [11]–[40].
The Member proceeded to set out the respondent’s description of the stress and anxiety she has suffered since the injury, the effect it has had on her mental health and treatment she has sought.[30] The Member noted the respondent has stopped working at her three jobs due to the injury. The Member referred to the respondent’s subsequent employment at a food processing plant for a couple of weeks in October 2021 and “as a cleaner at three locations in early 2021”.[31] The respondent said that she had to cease work due to excessive pain and is in receipt of a disability benefit from Centrelink.[32]
[30] Reasons, [14]–[15].
[31] Reasons, [16].
[32] Reasons, [17].
Dr Wai’s clinical notes were then discussed by the Member. She referred to an entry of 6 May 2021 in which the respondent said that she suffered an injury a week ago at work and suffered left breast pain. Dr Wai recorded she did not observe a bruise. The Member said that Dr Wai queried whether there was a soft tissue injury or a tear before referring her for an ultrasound. The Member then referred to the clinical note entry of 15 May 2022 and the further attendance on 19 May 2021.
The Member observed that the ultrasound report did not appear in Dr Wai’s notes though on 22 May 2021, it was said it showed a left breast implant intracapsular rupture and Dr Wai referred the respondent to the Port Macquarie Base Hospital Emergency Department.[33]
[33] Reasons, [19].
The Member proceeded to discuss the MRI scan undertaken on 24 May 2021, and report by Dr Chong.[34] The report made reference to an ultrasound that showed a capsular rupture after a fall two weeks ago.
[34] Reasons, [20].
She then referred to Dr Hodge’s report dated 6 July 2021. The Member observed that the report said the respondent had pain and discomfort in her left breast and that on examination, both breasts felt normal and there were no overt significant findings. She added that Dr Hodge referred the respondent to Dr Moradi.
The Member then discussed Dr Hingston’s report dated 2 August 2021. She referred to the doctor’s statement that clinical examination did not confirm a lump but the left breast was now larger than the right, which the respondent told him was a new finding. Reference was made to the MRI scan in which it was said there was confirmation of intracapsular rupture of the left breast implant. The Member observed that Dr Hingston recommended removal and replacement of both implants.
The Member referred to the notice issued pursuant to s 78 of the 1998 Act dated 31 August 2021.
She then discussed the contents of the report of Dr de Torres dated 11 February 2022. The Member noted the doctor’s diagnosis of a traumatic rupture of the left breast implant resulting in capsular contraction and pain. The doctor said the appropriate surgery was removal of both implants.
The Member outlined the supplementary report of Dr de Torres dated 19 May 2022, in which he responded to the question of whether the respondent suffered a pathological change rather than damage to her breast implant.
The Member proceeded to discuss the evidence with respect to the alleged secondary psychological injury.[35] Given that the Member ultimately made an award for the appellant in relation to the alleged secondary psychological condition, it is not necessary for present purposes to discuss this part of the Member’s reasons in detail.
[35] Reasons, [35]–[40].
The Member turned to the respondent’s submissions. The respondent argued that there was no medical evidence from the appellant to dispute injury and the ongoing incapacity supported by Dr Wai’s certificates. The respondent’s counsel addressed on Dr de Torres’ report and submitted that the damage she suffered was an injury to her body and the implant should not be characterised as an artificial aid. The respondent submitted that the doctor’s unchallenged diagnosis was a traumatic rupture of the left breast implant resulting in capsular contraction and pain. The respondent contended that this meant that the injury had disrupted the capsule, meaning that the scarring around the implant had contracted, causing pain. The respondent submitted that the impact on the capsule was a pathological change, resulting in pain and that she had consistently complained of pain since the incident. The respondent said the MRI scan report supported Dr de Torres’ opinion, particularly the reference to the fibrous scar, which was an objective diagnosis.
The Member set out the respondent’s argument that despite the first entry in Dr Wai’s notes, her evidence was that she saw Dr Wai on the date of the fall. It is said that the subsequent treatment “was consistent with the MRI scan findings – a complaint of pain centred on the left breast”.[36]
[36] Reasons, [44].
The Member concludes her summary of the respondent’s submissions by recording the submission that:
“[a]s a result of the injury, … Dr Wai observed the development of psychological symptoms which warranted a MHCP and ultimately treatment by Ms Tomlinson. Since August 2021, Dr Wai consistently certified Ms McKinnon as having no current work capacity as a result of the injury to her left breast.”[37]
[37] Reasons, [45].
The appellant submitted to the Member that she would find the respondent’s description of the event “questionable” and that “Dr Wai’s notes supported a finding that there was no soft tissue injury but only a rupture of the left breast implant”.[38] It submitted that Dr de Torres’ opinion was confusing because in the second report he said that an implant will only rupture by sharp trauma but there was no evidence of any such trauma. It said Dr de Torres’ opinion in the second report that the respondent suffered capsular contraction caused by bruising from the fall was opposite of the original opinion.
[38] Reasons, [47].
The appellant argued that if the Member found that the incident occurred, the Member must determine if the rupture of the left breast implant was an injury in the sense of a pathophysiological change, relying on Lyons v Master Builders Association of NSW Pty Ltd;[39] Storey v McCawley;[40] Edkins v Agricultural Investment Australia;[41] Kennedy Cleaning Services Pty Ltd v Petkoska,[42] and Castro v State Transit Authority (NSW).[43]
[39] (2003) 25 NSWCCR 422.
[40] (1948) 48 SR (NSW) 474 (Storey).
[41] (2003) 25 NSWCCR 285 (Edkins).
[42] [2000] HCA 45 (Petkoska).
[43] (2000) 19 NSWCCR 496 (Castro).
The appellant submitted that the respondent did not suffer an injury because the rupture of the implant was not a sudden pathophysiological change. It said that the medical evidence did not support Dr de Torres’ contention that there was bruising leading to capsular contraction. It contended that the MRI scan report did not identify any soft tissue change, and stated that in the absence of any clinical finding, it was not possible to find that the respondent suffered an injury.
After setting out the appellant’s submissions in relation to the alleged secondary psychological condition, the Member said:
“Noting that the crux of the claim was the s 60 expenses relating to removal and replacement of the ruptured implant, [the appellant] said that it was necessary to consider if the implant was an artificial member or aid as defined in s 59 of the 1987 Act, referring [to] Thomas v Ferguson Transformers Pty Ltd[44]”.[45]
[44] [1979] 1 NSWLR 216 (Thomas), [220]–[221].
[45] Reasons, [53].

The appellant argued that Thomas was applied in the Court of Appeal decision of Pacific National Pty Ltd v Baldacchino[46] and also referred to the Arbitrator’s decision in Baldacchino v Pacific National Pty Ltd.[47]
[46] [2018] NSWCA 281.
[47] [2017] NSWWCC 239.
The appellant argued that a breast implant was not an artificial aid or member as defined for the purpose of Div 3 of Part 3 of the 1987 Act. It submitted that it was not part of an organ of the body, but was a foreign object inserted for aesthetic purposes. It contended that it was not an artificial aid because it was not required to treat an injury.[48]
[48] Reasons, [54].
The Member then set out the appellant’s submissions with respect to the costs of the proposed surgery and weekly compensation. For present purposes, it is not necessary to traverse these parts of the reasons.
The Member noted that in reply, the respondent said that the authorities relied upon by the appellant could be distinguished as the respondent’s left breast implant was not an artificial aid but had been part of her body for over 20 years. She argued that the damage to the implant was therefore a sudden or identifiable pathological change. She said that even if that was not so, Dr de Torres diagnosed a capsular contracture and provided a definition from Breastcancer.org. The respondent said that the soft tissue that surrounded the implant was damaged which constituted a sudden or identifiable pathological change.
In her findings and reasons, the Member noted the appellant sought to cast doubt on the occurrence of the incident on 6 May 2021. She stated that the fact that the respondent fell on 6 May 2021 was not disputed in the s 78 notice and on that basis alone, the submissions with respect to the occurrence of the incident could be disregarded.[49] In any event, there was no evidence about the incident contrary to the evidence given by the respondent.
[49] Reasons, [60].
The Member stated that the respondent said in her statement that she saw Dr Wai on the day of the injury. Reference was made to the clinical history on the MRI scan that the respondent had fallen two weeks before, which was roughly consistent with an injury on 6 May 2021. The Member observed that Dr Wai recorded that the respondent had fallen a week before. The Member accepted that the date may have been a typographical error and that the notes should be read in light of the comments of Basten JA in Mason v Demasi.[50]
[50] [2009] NSWCA 227 (Mason), [2].
The Member stated that the respondent discussed a number of other conditions with Dr Wai, in addition to giving a history of the injury and being referred for an ultrasound. She found the fact that Dr Wai noted the injury as occurring on a different day in the record of a consultation at which several issues were discussed did not necessarily cast doubt on the respondent’s statement.[51] Further, she said there was no evidence from the appellant to suggest that the injury did not occur and the date was not placed in issue in the s 78 notice.
[51] Reasons, [62].
The Member was of the view that there was no reason not to accept that the injurious event occurred as the respondent said it did. She observed that whether it was an injury as defined in s 4(a) of the 1987 Act “falls to be considered in light of the authorities relied on by the parties and some others”.[52] Reference was made to North Coast Area Health Service v Felstead[53] and Petkoska. The Member then quoted the decision of the High Court in Military Rehabilitation and Compensation Commission v May.[54]
[52] Reasons, [63].
[53] [2011] NSWWCCPD 51, [81].
[54] [2016] HCA 19; 257 CLR 468, [46]–[47] (per French CJ, Kiefel, Nettle and Gordon JJ), [75] (per Gageler J).
Given the issues raised on this appeal, it is necessary to set out the following part of the Member’s reasons at [67]–[71] in full:
“67. When Ms McKinnon saw Dr Wai she said that she had fallen and suffered left breast pain. Dr Wai did not see a bruise but queried a soft tissue injury. Dr Wai prescribed significant pain medication in the form of Endone and Targin specifically for the pain suffered in Ms McKinnon’s left breast. She referred Ms McKinnon for an ultrasound which showed a capsular rupture.
68.    Dr Hodge recorded that Ms McKinnon felt pain and discomfort when she fell. Dr Hingston recorded that Ms McKinnon’s left breast was now larger.
69.    Dr de Torres also recorded that Ms McKinnon felt pain and discomfort after the fall and that her left breast now felt hard, tight and continuously uncomfortable. On examination, there was contracture of the left breast upwards, which he accepted was a result of the incident. He said that she suffered traumatic rupture of the breast resulting in capsular contraction. Dr de Torres’ first report is brief. The questions he answered in his second report could have been better framed. I do not read his reports as being inconsistent. The MRI scan was said to show an intracapsular rupture of the implant. Dr de Torres said that an implant can sustain considerable blunt trauma but falling on a pointed edge can cause a rupture. In his answer to the second question he explained how that rupture occurred - as a result of bruising causing folding of the capsule which can lead to rupture.
70.    Those reports all confirm that, based on the history Ms McKinnon provided of a fall on 6 May 2021, there were observable and identifiable physiological changes after the injury noted by the doctors who examined her, which could be described as a soft tissue injury to her breast. A rupture of the implant was revealed by an ultrasound and an MRI scan. Ms McKinnon’s complaints of pain in her breast were accepted by the doctors who saw her as being a result of the fall and the rupture.
71.    I am satisfied that Ms McKinnon fell on 6 May 2021 which caused a soft tissue injury and resulted in the rupture of a breast implant. Because the implant was surrounded by a part of her body, damage to the implant necessarily resulted in a physiological change in the area around the implant, observed by the medical practitioners as swelling, inflammation and a contracture of the left breast upwards as a result of the rupture.”
The Member found that the authorities of Storey, Castro, and Edkins did not assist the appellant’s case,[55] before turning to the issue of treatment expenses. She held that the submission that the implant was not an artificial aid or member did not consider the definitions in s 59 of the 1987 Act in context.[56] The Member then noted the appellant’s submission that the treatment sought was not medical or related treatment because the original implant was not an artificial aid or member because it was not provided for the purpose of treatment as a result of an injury. The Member said that in effect the appellant sought to read the definition from the middle rather than the beginning.[57]
[55] Reasons, [72]–[76].
[56] Reasons, [78].
[57] Reasons, [82].
The Member found that the respondent’s existing implant was clearly not an artificial aid or member intended to overcome the effects of an injury. She said that did not mean “that surgery which involves the removal of a ruptured and painful implant recommended by a medical practitioner is not reasonably necessary medical treatment as a result of an injury to her breast.”[58] The Member held the new breast implant could be said to be an artificial aid to enable the effects of injury to be overcome. The Member noted the appellant conceded that a breast reconstruction as a result of injury would be compensable. The Member was satisfied that the surgery to the respondent’s left breast proposed by Dr Hingston was reasonably necessary medical treatment as a result of the injury on 6 May 2021 and that the cost of the removal and replacement was payable under s 60.
[58] Reasons, [87].
The Member considered the issue of weekly compensation and noted the claim fell within the s 37 period and that the respondent was not working and was entitled to an award of compensation at 80% of $1,098, which she calculated to be $878.40.[59]
[59] Reasons, [93]–[95].
The Member finally considered whether the respondent suffered a secondary psychological injury. Whilst she accepted that the respondent’s injury may cause her distress, the Member was unable to find that the respondent suffered a secondary psychological condition without medical evidence explaining the link. She made an award for the appellant on the claim with respect to a secondary psychological condition.[60]
[60] Reasons, [96]–[101].
The Certificate of Determination issued on 25 November 2022 records:
“The Commission finds:
“1.     The [respondent] suffered an injury on 6 May 2021 which caused the rupture of a left breast implant.
The Commission determines:
1.      Pursuant to s 37 of the Workers Compensation Act 1987, the [appellant] is to pay the [respondent] weekly compensation $878.40 from 31 August 2021 to date and continuing.
2. The [appellant] is to pay the [respondent’s] s 60 expenses resulting from the injury to her left breast including the expenses of and incidental to the removal and replacement of the ruptured implant in her left breast.
3.     Award for the [appellant] on the claim with respect to a secondary psychological condition.”

GROUNDS OF APPEAL

The appellant relies on the following four grounds of appeal in this matter.
Ground One – The Member committed errors of either fact or law by making a critical finding of fact that was not based on the evidence.
Ground Two – The Member failed to consider relevant evidence.
Ground Three – The Member committed error of law in providing reasons that were neither rational nor logical.
Ground Four – The Member erred at law in failing to give proper, or lawful, reasons concerning the determination of the question of injury.

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)     …”.

DISCUSSION

The appellant says that the errors it wishes to agitate on this appeal appear at reasons [67]–[71],[61] which I have set out in full above.
[61] Appellant’s submissions, [2.14].
I remark that as a broad response to the entirety of the appeal grounds, the respondent argues that the approach of the appellant rests upon the examination of contemporaneous clinical entries of treating doctors, namely Drs Wai, Hodge, and Hingston. This approach, the respondent argues, fails to follow the warning by the Court of Appeal that such notes need to be approached with caution.[62]
[62] Citing Nominal Defendant v Clancy [2007] NSWCA 349 (Clancy), [54]–[55] per Santow JA.

Some principles about the approach to medical and clinical records

The gravamen of the appellant’s complaints in this matter relates to how the clinical notes ought be read and whether they provide support for the Member’s findings. The appellant says that the notes do not reveal any pathology or clinical findings of injury to the respondent’s left breast.
The Courts have long said that such medical treatment records need to be approached with caution. They are not proofs of evidence and they are created for an entirely separate purpose from litigation. In addition to Clancy, I would refer to the remarks of Basten JA in Mason where the approach was put as follows:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[63]
[63] Mason, [2].

Some principles about the concept of injury

On this appeal, the appellant repeatedly relies upon an argument that the medical evidence does not identify any pathology or clinical findings upon examination that support the establishment of injury to the respondent’s left breast.
In May v Military Rehabilitation and Compensation Commission[64] the Full Federal Court was called upon to consider the meaning of the word “injury” for the purposes of the Commonwealth statute involved in that matter. The Full Court undertook a lengthy examination of the authorities on the question of “injury” from paragraphs [22]–[118] before applying those principles to the matter. At [118] the Full Court said that “[m]edical evidence or opinion will, of course, be relevant; but it may not be determinative.”
[64] [2015] FCAFC 93 (May).
The Full Bench approached the question of injury in this manner:
“207. Further, to the extent that the Tribunal and the submissions of the respondent sought to substitute for the statutory concept of ‘injury’ in s 4 the words ‘sudden or identifiable physiological change’ (a phrase not included in the statute) and by implication necessarily to exclude the vertigo suffered by the appellant, as well as the other physiological changes he reported, such a course was erroneous.
208. Paragraph 52 of the Tribunal’s reasons was the commencement in detail of the Tribunal’s reasoning process on the facts and material as found by it. At [52] (part of which also appears at [129]) the Tribunal said:
We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May’s case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers (sic) to both questions is ‘No’.
209. A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of ‘injury’ in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls ‘symptoms’ and the need for a ‘diagnosis’. As part of the statutory question, one asks whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.
210. Secondly, even if there was – as the Tribunal put it – a need for ‘physiological evidence, pathology or a known diagnosis’, the Tribunal itself had made a finding (at [48] of its reasons) that the condition the appellant found ‘the most disabling’ was vertigo. There is no other way to read [48] of the Tribunal’s reasons than that it accepted, as a matter of fact on the evidence and material before it, that the appellant suffered from vertigo at the time of its review. The Tribunal repeated the substance of that finding at [65] of its reasons where it stated that the appellant’s other conditions (gastroenteritis and upper respiratory tract infections)
... appear to have been transient and the current cause of his incapacity appears to be what we have described as vertigo, an illness the symptoms of which appear to be ongoing.
211. Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as ‘symptoms’) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.
212. Thirdly, neither the terms of s 4 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)], nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process at [52] was to proceed on the basis that a claimant’s account could never suffice to establish an injury.”
May was appealed to the High Court.[65] The High Court said this about injury and physiological change:
“47. However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.’ (emphasis added)” (footnotes omitted)
The remarks of the Full Court at [212] were not disturbed by the High Court.

As to Ground One – The Member committed errors of either fact or law by making a critical finding of fact that was not based on the evidence

[65] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468.

The findings of fact impugned by the appellant in this ground appear in the appellant’s submissions of 19 December 2022 at paragraph [5.2] which provides:
“The findings of fact were:
(a)     Paragraph 70 – The Member did find there were ‘… observable and identifiable physiological changes after the injury noted by the doctors who examined her, which could be described as a soft tissue injury to her breast.’
(b)     Paragraph 71 – The Member did find the fall ‘… caused a soft tissue injury and resulted in the rupture of a breast implant.’
(c)     Paragraph 71 – The Member did find the medical practitioners observed ‘… swelling, inflammation and a contracture of the left breast upwards as a result of the rupture.’”
The appellant argues that these critical findings of fact were not supported by the clinical findings which the appellant recounts in its submissions at paragraphs [5.4]–[5.11]. I set these paragraphs out below:
“5.4 The clinical note of Dr Wai, dated 6 May 2021, refers simply to ‘left breast pain’. In particular, it is identified that there is nil bruise and there is a question mark concerning a soft tissue injury or tear. Further, on examination there is no finding that there is bruising, soft tissue injury to change [sic], a change in the size of the breast in comparison to the right breast or indeed any other clinical finding on examination. Same is then found in the clinical records of 15 May 2021 and 19 May 2021. In particular the clinical note of 19 May 2021 (36-ARD) simply identifies that there are no signs of infection, there is no redness, there is no inflammation, there is no discharge from the nipple and there is no other clinical finding identified. Importantly, the clinical note of 28 October 2021 (97-ARD) (and in relation to a consultation between Dr Wai and the Respondent) refers to a specific request by the Respondent to review the diagnosis. The doctor notes there is no record of a soft tissue injury and it is only noted there was a rupture of the breast implant. The diagnosis from the General Practitioner is ‘breast implant intracapsular rupture’. Of note, the attendance with Dr Wai on 28 October 2021 was following the Respondent’s receipt of the section 78 notice dated 31 August 2021. The Respondent specifically sought the doctor review the position concerning a diagnosis and the doctor did not change same.
5.5    An MRI of the bilateral breast reported on 24 May 2021 identifies an intracapsular rupture of the left breast implant and the contents of the implant appear to be contained by the fibrous scar. The report in relation to the right breast identifies linear extension of bulging of the implant contents from the breast implant along the chest wall medially and there is an increased risk of rupture in the right breast. In particular there is no rupture of the right breast identified.
5.6    Dr B Hodge in his report of 6 July 2021 does not identify any pathology or clinical finding on examination concerning the left breast. Indeed, the doctor simply finds that on examination the breast felt quite normal and there were no overt significant findings. The doctor notes that on scanning it was identified that there was a small rupture of the left breast prothesis.
5.7    Dr G Hingston provided a report dated 2 August 2021 in which he identified there is apparently rupture of the bilateral breast implants, however, on examination there is no focal lump and the left breast is marginally larger. The doctor relies upon the Respondent informing him that this is a new finding. The doctor notes that the bilateral breast MRI confirms intracapsular rupture of the left breast implant and a linear extension bulging of the right breast implant. The doctor does not identify any clinical finding concerning the breast tissue itself. In particular there is no clinical finding of swelling, bruising or any other soft tissue injury.
5.8    Of note the clinical finding made by Dr Hingston that the left breast is marginally larger is inconsistent with the clinical findings of each of Dr Wai and Dr Hodge. The clinical findings of Dr Wai were made on 6 May 2021, 15 May 2021 and 19 May 2021. The clinical findings of Dr Hodge were made on 6 July 2021. The clinical finding made by Dr Hingston was made at least a month after the last of the above.
5.9    The Respondent relies upon the qualified opinion of Dr H de Torres, hand and plastic reconstructive surgeon, who has provided a report dated 11 February 2022. Dr de Torres notes the history of the incident and the Respondent ‘immediately feeling pain and discomfort in that breast’. The assessment was conducted by telehealth and was not face to face. The doctor notes that an ultrasound investigation revealed a rupture of the left breast implant and reports that the left breast is now hard and it feels tight and uncomfortable continuously. The doctor diagnoses traumatic rupture of the left breast implant resulting in capsular contraction and pain. The doctor considered that the traumatic rupture of the implant was caused by the reported fall at work.
5.10 The doctor does not make any clinical findings based on an examination because there was no physical examination conducted by him. The assessment was conducted by telehealth.
5.11 None of Dr Wai, Dr Hodge or Dr Hingston found bruising on clinical examination or indeed reporting from the Respondent. The foundation of the opinion proffered by Dr de Torres is flawed.”
In reply the respondent argues as follows:
“With respect, the appellant’s submission that the Member’s finding of “injury” was not based on the evidence ignores:
(a)     The contemporaneous complaints of left breast pain,
(b)     The clinical findings that the left breast was marginally larger (per Dr Hingston);
(c)     The objective radiological findings on ultrasound and MRI scan of intrascapular [sic, intracapsular] rupture and contents of the implant contained by scar tissue;
(d)     The diagnosis of Dr De Torres of capsular contracture – that is, soft tissue injury to the capsule surrounding the implants; and
(e)     The respondent worker had been asymptomatic for over twenty (20) years before the accident.”[66]
[66] Respondent’s submissions, [2.8.5].
In short, the respondent says that there was a basis in the evidence to support the Member’s findings.

Consideration

Before embarking upon an examination of the appellant’s arguments raised in this ground, it is necessary to state a number of matters that are not in dispute.
There is no issue that the respondent suffered a fall at work on 6 May 2021, landing on her left breast/side. There is no issue that on the same day she attended upon her GP, Dr Wai, complaining of left breast pain due to a fall at work. Thereafter the GP initiates investigations, initially an ultrasound, to determine what had occurred and what was causing the respondent’s pain. The GP was also dealing with the respondent’s complaints of pain and commences a regime of pain management by prescribing various medications. The ultrasound and a later MRI both reveal a rupture of the left breast implant.
In terms of the clinical notes, and bearing in mind what was said in Clancy and Mason about the caution to be exercised in approaching such records, the following is apparent. Firstly, in the weeks and months after the 6 May 2021 incident, the treating doctors were managing the respondent’s undoubted complaints of pain and attempting to ascertain the cause of that pain, which was identified as the ruptured breast implant. Secondly, the argument raised by the appellant in this case, namely the lack of any pathology or physiological change and as a consequence “no injury” (as the law would recognise) was certainly not a concern for the treating doctors. This was not their task. They were managing the respondent’s pain and ultimately the surgeons recommended the removal and replacement of the breast implants. The Court of Appeal’s warning to approach clinical notes with caution is completely apposite to the facts of this matter.
The appellant complains that at three separate places in the decision (one at reasons [70] and two in reasons [71]), findings were made that were not supported by the evidence. I will deal with each in turn.

Reasons [70]

The Member said at [70] that there were observable and identifiable physiological changes to the breast which could be described as a soft tissue injury. Clearly the doctors received complaints of pain in the left breast and the scans subsequently revealed the ruptured implant. No doctor made a positive finding of soft tissue injury other than Dr de Torres. Dr de Torres said as follows in his second report of 1 June 2022:
“A fall can cause capsular formation due to inflammation, e.g. bruising forming in association with the implant, and then the capsule contracting causing severe folding … Therefore, I consider that the capsular contracture was caused by bruising from the fall.”[67]
[67] ARD, p 18, answer to question 2.
The appellant says this opinion of Dr de Torres is flawed because neither of the other two surgeons nor the GP found any evidence of bruising on examination. Dr de Torres is also seemingly criticised for conducting a video telehealth examination. It is not clear from the report whether this is true, the doctor in his first paragraph[68] says he saw the respondent in his Sydney rooms on 31 January 2022 but later says “[o]n examination via video teleconference”[69] and then relates a number of findings.
[68] ARD, p 14.
[69] ARD, p 15.
I would remark that as at January 2022, the COVID-19 pandemic was still current and telehealth was a very common practice at that time for the conduct of medical examinations. I think that judicial notice is able to be taken of that fact. The implication from the appellant’s submission is that as a result of the examination possibly being by telehealth, it ought be accorded little or no weight although the submission is not advanced in those terms. Other than this implied criticism, the submission is not developed.
I would remark that the appellant has not taken issue with Dr de Torres’ qualifications as a relevantly qualified expert to posit an opinion on this question. As I read the doctor’s opinion about inflammation and bruising being a cause of the breast implant rupture, I read that opinion as being based on the history he took, namely the fall, complaints of pain and the consequent implant rupture. These three facts are not in dispute. They form the basis of the doctor’s opinion. The doctor’s expertise is the bridge between the primary facts of the fall, the complaints of pain and cause of the proven breast implant rupture, which the doctor says was inflammation or bruising.[70] Contrary to the appellant’s submission about the doctor’s report being “flawed”, it is based upon primary evidence which is not disputed. I do not accept the submission that Dr de Torres’ opinion is flawed. It provides a satisfactory basis for the Commission to make relevant findings.[71] I also do not accept that Dr de Torres was in any way bound by the findings made on examination by the two surgeons and the GP. Dr de Torres as an independent expert has a duty to provide an opinion within the bounds of his unchallenged expertise.
[70] See Dasreef Pty Limited v Hawchar [2011] HCA 21, [90], per Heydon J.
[71] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock), [82], per Beazley JA.
I accept that the Member has not expressed the findings at reasons [70] as carefully as might have been preferable, but for a member in a busy tribunal such a circumstance is understandable. There were two categories of medical evidence to deal with, the treating material which did not provide evidentiary support for the findings impugned in this ground, and the medico-legal evidence which did support the findings. It would have been helpful had the differences between the two categories been identified and reconciled. Assuming for argument’s sake that this was an error, namely that the finding was not supported by a proper view of the treating evidence, the finding was supported by the medico-legal evidence. The Member’s finding did have an evidentiary basis in Dr de Torres’ opinion, namely that there was physiological change in the form of bruising or inflammation which caused the implant to rupture.
As a consequence, this error in dealing with the treating evidence does not affect the result.[72] There was a satisfactory basis, in the Hancock sense, for the Member to make the findings at [70] based on Dr de Torres’ opinion. Additionally in saying this, I am conscious of the remarks of Kirby J in Roncevich v Repatriation Commission[73] where his Honour cautioned courts to avoid “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties”. In this circumstance I am satisfied that the real contest between the parties was addressed by the Member. This aspect of Ground One has not been established.
[72] Walshe v Prest [2005] NSWCA 333, [27].
[73] [2005] HCA 40, [64].

Reasons [71]

The appellant says that two of the findings made by the Member at reasons [71] were not supported by the evidence, and this submission is made on the same basis as that I have dealt with in respect of the complaint about reasons [70]. The issue in reasons [71] is the same as I have described above, namely that there was not support for the findings in the treating medical evidence, but there was support in the medico-legal evidence. For the same reasons that I have dismissed the complaint of error in relation to reasons [70], the complaint about reasons [71] also must fail.
Ground One is dismissed.

As to Ground Two – The Member failed to consider relevant evidence

In this ground, the appellant argues that the Member failed to consider, or in fact misunderstood, relevant evidence. That evidence is identified firstly as Dr Wai’s opinion which originally queried the existence of a soft tissue injury and then later excluded it. The appellant says the Member did not deal with this fact, having recorded at reasons [67] the initial entry in Dr Wai’s notes on 6 May 2021 which queried the soft tissue injury. Secondly, the appellant says that the Member did not address the opinion of Dr Hodge which was to the effect that there was no clinical finding of soft tissue injury.
In reply, the respondent contends that this is “in reality an appeal on the facts” and that the Member’s factual findings were open on the evidence.[74]
[74] Respondent’s submissions, [2.8.8], citing Branir Pty Limited v Owston Nominees (No 2) Pty

Consideration

In many respects this ground is a derivation of the argument appearing in Ground One (above). That is, how the Member dealt with aspects of the medical evidence, in particular the issues regarding Dr Wai and Dr Hodge’s evidence that the appellant has pointed to.
I accept that the Member did not reconcile or deal with the two issues argued by the appellant in this ground. For the reasons I have set out in relation to Ground One, there was no support for the Member’s findings in the treating evidence. But not only was there such support in the evidence comprising Dr de Torres’ reports, but also such support can be found in the respondent’s evidence.
This ground invites the elevation of the clinical notes and treating doctors’ opinion as being determinative in the proof of ultimate fact, did the respondent suffer injury? I have outlined (above) the proper approach as described by the Full Federal Court in May.[75] It is a matter for the tribunal of fact, considering all of the evidence, as to whether it is satisfied of the existence of injury. As was said in May, “[m]edical evidence or opinion will, of course, be relevant; but it may not be determinative.”[76]
[75] See May, [211]–[212].
[76] May, [118].
I should also say that it is not incumbent upon the Member to refer to every fact or every argument.[77] I accept the Member did not refer to the aspects of Dr Wai and Dr Hodge’s material referred to in this ground.
[77] Whisprun Pty Ltd v Dixon [2003] HCA 48, [62].
The appellant in this ground asserts that Dr Hodge was of the opinion “that there was no clinical finding that supported a soft tissue injury.”[78] Dr Hodge’s report of 6 July 2021 says that the breast felt “quite normal” with “no overt significant findings”.[79] I think that the appellant’s submission does put Dr Hodge’s opinion too highly. I do not read it as entirely discounting a soft tissue injury, noting “no significant findings” but I accept that Dr Hodge’s opinion could not be said to support a soft tissue injury diagnosis. As an opinion, it is not very helpful either way. In saying this I am not being critical of the doctor; a fair reading of that report reveals the purpose of seeing the doctor was to obtain advice about the respondent’s left breast pain. The doctor suggested removal and replacement of the implants and did not, to be fair, closely examine the entire question of whether there had been bruising or soft tissue injury which caused the implant to rupture. This simply was not addressed as that was not the purpose of the consultation. Dr Hodge’s opinion therefore provides no support for the appellant’s argument on this appeal. Given the contents of Dr Hodge’s report, it was not necessary for the Member to deal with it in terms.
[78] Appellant’s submissions, [5.17].
[79] ARD, p 27.
I do not read the medical opinions, especially that of Dr Hodge and that of Dr de Torres, as being in conflict. For the reasons I have set out in relation to Ground One, the purpose of the treating doctors was providing the respondent with a diagnosis and further treatment recommendations. Whilst they did not record signs of bruising or soft tissue injury, that does not end the inquiry. They did not consider, as Dr de Torres considered, the role of inflammation or bruising in causing the “severe folding” of the breast implant. Dr de Torres was able, for the reasons I have set out above, to proffer his opinion based on the established or uncontested facts I have referred to. Therefore the Member did not have to attempt to reconcile competing opinions.
No error which is determinative in the result has been established.
Ground Two is dismissed.

As to Ground Three – The Member committed error of law in providing reasons that were neither rational nor logical

The appellant advances Ground Three on the basis that the Member’s reasons were neither rational nor logical, relying upon Pollard v RRR Corporation Pty Ltd[80] and Soulemezis v Dudley (Holdings) Pty Limited.[81] Specifically, this ground takes issue with the Member’s findings with respect to soft tissue injuries and the fact that there was no support for this finding in the treating doctors’ records or reports. The appellant once more points to its complaints about how the Member did not deal with Dr Wai and Dr Hodge’s opinions, which I have dealt with in Ground Two (above). The appellant says that the clinical picture presented by the treating doctors has not been addressed and as a result the decision is neither rational nor logical.
[80] [2009] NSWCA 110 (Pollard), [56]–[65], per McColl JA.
[81] (1987) 10 NSWLR 247 (Soulemezis), 271C, per Mahoney JA.
In response, the respondent says:
“With respect, the submission at paragraph 5.22 of the appellant’s submissions is misconceived:
(a) As cited in May, ‘injury’ may be internal or external. The mere fact that Drs Wai and Hodge did not observe external signs of ‘swelling’ or ‘inflammation’, did not exclude what was later shown under ultrasound and MRI scan; and
(b) Dr De Torres’ finding of ‘contracture of the left breast upwards’ on 1 February 2022 was entirely consistent with the rupture found on the MRI scan taken on 24 May 2021.
There is no error in the Member’s reasoning as she carefully reviewed the evidence from paragraphs 60 to 76 of the Decision by addressing the appellant’s submissions at the Arbitration, which have been repeated in the Appeal.”[82]
[82] Respondent’s submissions, [2.9.10]–[2.8.22].

Consideration

This ground makes a very direct challenge to the Member’s reasoning process, stating that it was neither rational nor logical. The decisions in Pollard and Soulemezis are called in aid of this submission.
To these decisions, which are really about the adequacy of reasons rather than the manner in which this ground is framed, I would add the High Court decision in Minister for Immigration and Citizenship v Li[83] to my considerations in this ground. In particular, I would refer to the remarks of Gageler J (as his Honour then was) at [105]–[113] about judging reasonableness in decision making. In particular, his Honour stated:
“The same observation lends force to the suggestion that, for the purpose of applying the test, ‘guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion’. There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion ‘if upon the facts it is unreasonable or plainly unjust’, or if ‘failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court’. It is therefore fair to say that ‘[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature’.”[84] (excluding footnotes)
[83] [2013] HCA 18 (Li).
[84] Li, [110].
I would further remark that Gageler J also stated that the circumstances where such a challenge to a decision based upon unreasonableness succeeds will be rare.[85]
[85] Li, [113].
Essentially the submission in this ground asserts that the Member’s findings of soft tissue injury were not reasonably available to be made on the evidence. In many respects the argument in this ground is another derivation of that which has been advanced in Grounds One and Two. For the reasons that I have expressed in answer to those grounds, this ground too must fail.
The appellant, as has been its approach generally on this appeal, has attempted to elevate the status of the records of the treating doctors as effectively being determinative in the outcome of this dispute. This approach, contrary to the passages I have referred to in May, ignores the evidence of the respondent herself and Dr de Torres. It also ignores the results of the scans (ultrasound and MRI) which confirm the implant rupture. Only Dr de Torres has provided a reasoned opinion as to the mechanism of this rupture being inflammation and bruising. Support for the Member’s reasons, albeit inelegantly expressed as I have noted above, can be found in these aspects of the evidence. In particular at reasons [69], the Member recounts Dr de Torres’ opinion about the mechanism of the implant rupture, which formed part of the evidentiary basis for the Member’s findings.
As a consequence, the argument in this ground that the decision was neither rational nor logical can be put aside.
Ground Three is dismissed.

As to Ground Four – The Member erred at law in failing to give proper, or lawful, reasons concerning the determination of the question of injury

In this ground, the appellant says that the Member failed to provide proper, lawful reasons for the decision. This ground makes reference to the decision in Campbelltown City Council v Vegan[86] and Wingfoot Australia Partners Pty Limited v Kocak.[87]
[86] (2006) 67 NSWLR 372.
[87] (2013) 252 CLR 480.
In particular, the appellant relies upon the decision of McColl JA in Tudor Capital Australia Pty Ltd v Christensen.[88] I do not repeat these passages in their entirety, but it is apparent that the relevant extract for this appeal is at [394] where the following appears:
“The differences between the expert evidence were capable of being resolved rationally by examination and analysis. In my view, the Arbitrator's reasons demonstrate that he failed to undertake that exercise.”
[88] [2017] NSWCA 260, [393]–[394].
This passage seems to encapsulate the gravamen of the appellant’s complaint with the decision, namely the Member did not deal with the treating doctors’ evidence and attempt to resolve what the appellant says is its conflict with Dr de Torres’ opinion.[89]
[89] Appellant’s submissions, [5.23], [5.29].
This ground is very similar to the preceding three grounds advanced by the appellant. I do not read Dr de Torres’ opinion as confusing or necessarily in conflict with the treating opinions or notes. Indeed Dr de Torres is the only doctor who provides an opinion on the mechanism of the rupture of the breast implant, which I have described above. There is no conflict between this opinion and the treating doctors’ evidence. This question is simply not adverted to by the treating physicians. As a consequence, there was no conflict for the Member to resolve between competing opinions. Further I do consider that it is correct to characterise Dr de Torres’ two reports as being in conflict. The second report addressed more directed questions than the first.
Indeed at reasons [69] the Member examines this opinion, noting the answer to question two in Dr de Torres’ second report where the Member writes: “In his answer to the second question he explained how that rupture occurred - as a result of bruising causing the folding of the capsule which can lead to rupture.” The Member was entitled to accept this evidence, it was uncontradicted and based upon the three proven facts I have previously adverted to.
There was thus a basis for the findings made by the Member which is apparent from the decision. This is a decision on a factual matter which was within the Member’s province as the first instance decision-maker. There was a rational basis for the finding of soft tissue injury causing the implant rupture based on Dr de Torres’ evidence. This is thus within the fact-finding discretion of a first instance decision-maker – and this decision based on the evidence was not made in error.
Ground Four is not established. Ground Four is dismissed.

DECISION

The Certificate of Determination dated 25 November 2022 is confirmed.

Judge Phillips
PRESIDENT

29 November 2023

Limited [2001] FCA 1833; Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40.