Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) - [2024] NSWPICPD 62

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICPD 62
APPELLANT:	Michelle Rieck
RESPONDENT:	State of New South Wales (Illawarra Shoalhaven Local Health District)
INSURER:	Employers Mutual Limited – as agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W6499/23
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	15 October 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 9 February 2024 is revoked. 2. The matter is remitted to a different non-presidential Member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – The test to establish injury simpliciter in accordance with s 4(a) and (b) and ss 15 and 16 of the Workers Compensation Act 1987 – Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 considered – whether finding of “injury” involves question of law – whether Member responded to allegation of “injury – whether it was open to find “disease” on the evidence in the case – injury simpliciter and disease not mutually exclusive – Military Rehabilitation and Compensation Commission v May [2016] HCA 19 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Boulton, counsel
RMB Lawyers
Respondent:
Mr G Young, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL:	Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPIC 52
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	9 February 2024

INTRODUCTION AND BACKGROUND

Michelle Rieck (the appellant) was employed by the State of New South Wales (Illawarra Shoalhaven Local Health District) (the respondent) as a cleaner at the Bulli Hospital between 2013 and 2017. It is common ground that she developed epicondylitis at her left elbow in the course of her employment. The appellant saw her general practitioner, Dr Nicole Hutt, on 29 November 2016. She was certified unfit for work and referred to Dr Stuart Jansen, an orthopaedic surgeon. The respondent accepted liability for the injury and paid the appellant compensation.
The appellant returned to work performing suitable duties in late 2016. In early 2017, she was transferred to the Wollongong Hospital to facilitate the work restrictions in her certificate of capacity. In late 2017, the respondent advised the appellant that it could no longer provide her with suitable duties. The appellant obtained a medical certificate from her general practitioner that she was fit for her pre-injury duties. However, she was not provided with further work by the respondent. It appears from the evidence that her employment was formally terminated on 5 April 2018.
In September 2018, the appellant obtained employment as a cleaner at Figtree Private Hospital (Figtree) which was operated by Ramsay Health Care Australia Pty Limited. Her duties were “essentially the same” as the work she had previously performed for the respondent. The work exacerbated symptoms in her left arm and caused her to seek further medical treatment in 2019.
On 4 July 2019, the appellant saw Dr Dion Casey, a general practitioner, who referred her back to Dr Jansen. After further investigation, Dr Jansen recommended that the appellant undergo left elbow surgery and placed her on the public waiting list. The appellant ceased work at Figtree on 20 October 2019.
On 14 October 2020, Dr Jansen performed a left lateral epicondylitis debridement at the Shellharbour Public Hospital. The appellant made an incomplete recovery from the surgery. She has been unable to return to her pre-injury employment.
The workers compensation insurers of both the respondent and Figtree have denied liability to pay the appellant compensation following the cessation of her employment.

ARBITRAL PROCEEDINGS

By a letter dated 1 September 2022, the appellant claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 12% whole person impairment of her left upper extremity. The letter of 1 September 2022 enclosed a Permanent Impairment Claim Form which under the heading “Injury details” described the injury as a disease of gradual process. It asserted that the relevant date was 28 November 2016 which was said to be “the date of claim”.
The claim for permanent impairment compensation was based on the reports of an orthopaedic surgeon, Dr Bodel, dated 25 July 2022. Dr Bodel assessed impairment of the appellant’s left elbow, left shoulder, left wrist and consequential surgical scarring.
In respect of causation, Dr Bodel said this:
“The lateral epicondylitis and the rotator cuff are disease processes of gradual onset. The nature and conditions of her work at Bulli & Wollongong Hospitals has caused the aggravation, acceleration, exacerbation and deterioration of these disease processes over a lengthy period of time leading to the need for the treatment including the surgery.”[1]
In response to a question posed by the appellant’s solicitor, Dr Bodel addressed the effect of the employment at Figtree on her condition. He said:
“There may have been a temporary aggravation of the disease process at her place of employment at Figtree Hospital however, the underlying pathology instigated at the Bulli Hospital persists to this day. It is likely now that she has ceased this type of work that the aggravation at the Figtree Hospital was temporary and her current symptoms relate to her original injury.”[2]
[1] Application to Resolve a Dispute (ARD), p 31.
[2] ARD, p 30.
By a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed that the appellant suffered an injury to her left wrist or hand. It conceded that the appellant suffered left elbow injury and a consequential condition of the left shoulder as a result of her employment at the Bulli Hospital. However, it stated:
“… it is also clear that you suffered exacerbation and extension of the lateral tear whilst undertaking similar (if not increased due to COVID) duties whilst employed by Figtree Private Hospital. We consider that Dr Bodel’s 2020 report supports this position.
Consequently, Bulli Hospital is not the last employer on risk and in any event, any impairment arising from your employment with Bulli Hospital does not reach the s 66(1) threshold and you are not entitled to compensation pursuant to s 66.”[3]
[3] ARD, pp 18–19.
By an Application to Resolve a Dispute (ARD), the appellant claimed the sum of $25,750 in respect of 12% whole person impairment (WPI) in accordance with Dr Bodel’s opinion. The ARD alleged that the appellant suffered a personal injury on 28 November 2016. The “Injury Description” is as follows:
“The [appellant] sustained injury to her left elbow, a consequential left shoulder, left wrist and hand condition due to the nature and conditions of her work duties at the Bulli Hospital as part of her employment with the Respondent. The [appellant] was employed in her role with the Respondent from 2013 to 5 April 2018.”
It is evident from the above that the only injury pleaded was to the left elbow. Impairments of the left shoulder, wrist, and hand were alleged to be consequential medical conditions resulting from the elbow injury.
The matter was the subject of a conciliation conference and arbitration hearing before Member Burge on 30 November 2023. At the commencement of the arbitration, the Member identified the issues in dispute. He stated:
“I understand that it’s pleaded as elbow and there’s a consequential condition to the shoulder and the hand and wrist are also claimed. Now, my understanding is that the respondent says that the injur[ies] suffered by the [appellant] are in the nature of a disease and that there is a subsequent employer whose employment is to the nature of which the disease process might be, at least, in part attributable and they’re not here. I understand that’s the nature of the dispute.”[4]
[4] Transcript of proceedings 30 November 2023 (T), T 1.38–2.3.
After hearing submissions from Mr Boulton, of counsel, who appeared for the appellant and Mr Young, of counsel, who appeared for the respondent, the Member reserved his decision.
By a written decision of 9 February 2024, the Member determined the matter and made orders:
“1.     The [appellant] suffered an injury to her left upper extremity (elbow) and consequential left shoulder, wrist and hand conditions due to the nature and conditions of her employment with the respondent.
2.     The injury referred to [in] [1] above is in the nature of a disease process and has a deemed date of injury of 28 November 2016.
3.     Following her injury, the [appellant] was last employed by Rams[a]y Healthcare Australia Pty Ltd in employment to the nature of which the disease injury or any aggravation, acceleration, exacerbation or deterioration of the disease injury was due.”
Relevantly, the Member recorded that the parties agreed that the issue in dispute was:
“(a) Whether the [appellant’s] injury is in the nature of a disease process or a series of micro traumata brought about by the nature and conditions of her employment.”[5]
[5] Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPIC 52 (Reasons), [3].
After thoroughly canvassing the evidence, the Member disposed of this issue as follows:
“On balance, I am satisfied that the preponderance of the medical evidence supports a finding that the [appellant’s] injury is in the nature of a disease of gradual onset. I am also satisfied that her subsequent employment at Figtree Private Hospital whose employment was a substantial contributing factor to the aggravation of her condition.
Rams[a]y Health is not a party to these proceedings. Having found the [appellant’s] employment with that entity was causative of an aggravation to an injury in the nature of a disease process, it follows that the respondent was not the last employer who employed the [appellant] in employment to the nature of which the disease is due.
That being so, despite the [appellant] plainly suffering issues with her left upper extremity as a result of a work-related injury, there is no alternative other than to make an award in favour of the respondent.”[6]
[6] Reasons, [44]–[46].
It is from this determination that the appellant brings this appeal.

ON THE PAPERS AND THRESHOLD MATTERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides that the Commission may exercise functions under that Act without holding any conference or formal hearing if satisfied that sufficient information has been supplied. Having regard to Procedural Directions PIC2 and WC3, the documents and submissions before me, I am satisfied I have enough information to proceed ‘on the papers’ without holding any conference or formal hearing.
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.

GROUND OF APPEAL

The only ground of appeal alleged is that:
“The Member failed to find that the physiological change that the [appellant] sustained in the course of her employment with the Respondent constituted an injury within section 4(a) of the [1987] Act.”
Oddly, the appellant’s submissions do not specify the nature of the “physiological change” that allegedly constitutes injury. It is evident, however, from the submissions made to the Member that the physiological change was tear/s of the common extensor tendon of the left elbow revealed by the ultrasound evidence and accepted by the specialist medical practitioners in the case as resulting from the appellant’s employment.

SUBMISSIONS

The appellant’s primary submission briefly canvasses the medical evidence adduced before the Member. It notes that the appellant’s qualified orthopaedic surgeon, Dr Bodel, referred to epicondylitis as being a “disease process of gradual onset” whereas Dr Cadden, qualified by the respondent, emphatically stated that the condition was not “in the nature of a disease of gradual process”. The submission continues:
“Be that as it may, the Member failed to deal with the incontrovertible evidence that the [appellant] sustained a physiological change as a result of her employment by the Respondent. For legal purposes it matters not whether that physiological change occurred suddenly or over a period of time as a result of the nature and conditions of employment (as opined by Dr Bodel ARD 29) or as a result of repetitive use of the elbow resulting in micro traumata or otherwise as opined by the other doctors. Either way, the result was physiological change in the elbow which for legal purposes constitutes an injury within Section 4(a) of the [1987] Act – see Ky v Blue Leaf Food Group Pty Limited [2016] NSWWCCPD 55 and the cases referred to therein.”[7]
[7] Submissions 6 March 2024, [10].
By a submission of 27 March 2024, the respondent characterised the “central issue of this case is whether the finding made by the Member of ‘disease’ was open to him on the medical evidence”. It submitted that this was a factual issue. It argued that the appellant did not directly challenge the Member’s acceptance of Dr Bodel’s opinion that the appellant’s left epicondylitis was a disease of gradual onset.
The respondent argued there was no explicit medical evidence that the appellant suffered injury under s 4(a) of the 1987 Act. Conversely, there was ample evidence on which the Member could find that she suffered a disease of gradual onset.
The respondent continued thus:
“Despite the appellant’s attempts to characterise the Member’s findings on causation as an error of law, it is in reality an appeal on the facts. As such, the Commission on appeal should not interfere with the Member’s decision if upon the evidence it is to be seen as fairly open to her [sic]. Error must be shown: Branir Pty Limited v Owston Nominees (No. 2)Pty Limited [2001] FCA 1833; 117 FCR 424 and Anderson v J & M Predl Pty Limited [2018] NSWWCCPD 40.”
By her submissions in reply, dated 30 April 2024, the appellant stated:
“The central issue is whether the Appellant suffered an injury within s 4(a), regardless of whether she also suffered a disease. The terms are not mutually exclusive.”
The appellant again referred to the evidence of Dr Cadden who declined in his medical reports to describe her condition as a disease. The appellant reiterated that a subsequent aggravation with a second employer “is irrelevant to the central issue”. Finally, she asserted that whether the “facts fall within the meaning of ‘injury’ in s 4(a) is properly a question of law: May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at para 193.”

NATURE OF THE APPEAL

The appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether the Member’s decision was affected by any error of fact, law, or discretion and to the correction of any such error. It is not a review or a new hearing.

LEGISLATION

The definition of injury in s 4 of the 1987 Act is as follows:
“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.”
In so far as it is relevant, s 15 of the 1987 Act is as follows:
“15    Diseases of gradual process—employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
…”.
In so far as it is relevant s 16 of the 1987 Act is as follows:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…”.

DISCUSSION AND FINDINGS

The appellant’s lawyers chose to bring and argue this case on the basis that she sustained all an “injury” simpliciter in the course of her employment with the respondent notwithstanding the opinion of their specialist orthopaedic surgeon that she suffered a disease of gradual process which had been aggravated by work with a subsequent employer. Of course, the use of the term “disease” by a medical practitioner must be treated with some caution as the word can have a variety of meanings and medical practitioners are not always familiar with the approach of courts and tribunals to the interpretation of statutory language. Nonetheless, the use of the term will constitute evidence of “disease”, which must be weighed against all the relevant evidence in a case.
The appellant suffered from epicondylitis, one of the conditions referred to by Judge Burke in the seminal case of Perry v Tanine Pty Ltd t/as Ermington Hotel.[8] In that case his Honour addressed the distinction between injury simpliciter, and disease as follows:
[8] (1998) 16 NSWCCR 253 (Perry).
“44.   A problem that fretted me a little at the hearing was whether the condition or conditions affecting Mr Perry were properly classified as ‘personal injury’, often referred to as injury simpliciter, within s 4(a) of the definition of injury, or as disease within s 4(b). The majority of counsel opted for the disease classification. That was without great analysis of fact or authority. It occurred to me that the selection may be on the much more pragmatic basis of what seems best for the particular client at the particular time.
45.    The Macquarie Dictionary defines disease in these terms:
‘a morbid condition of the body, or of some organ or part; illness, sickness, ailment.’
46.    A rather indefinite set of criteria for the distinction sought to be drawn in this matter.
47.    Blakiston’s Gould Medical Dictionary has an entrancing mini thesis as its definition:
‘1.The failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, organ or system of the body.
2.A specific entity which is the sum total of the numerous expressions of one or more pathological processes. The cause of a disease entity is represented by the cause of the basic pathological processes in combination with important secondary causative factors.’
48.    This concept of failure of some element of the body to cope with repetitive stress seems typical of carpal tunnel syndrome, many forms of rotator cuff lesion, problems of epicondylitis affecting elbows, tenosynovitis and a whole range of other problems affecting various joints, tendons, nerves and muscles of the body not infrequently presented to this Court in the industrial context.
49.    The only clear alternative appears to be to regard the end result as the consequence of an almost infinite series of minor traumata, injuries simpliciter. There are obvious complications inherent in that approach as illustrated in Milne v International Combustion [1953] 27 WCR (NSW) 80. Rainbow J there regarded boilermaker’s deafness as the consequence of such a series of injuries simpliciter and the worker failed to establish which relevant employer caused the injury. In Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246, Windeyer J was unimpressed by such an analysis:
‘I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognised in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker’s disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or skin of some deleterious substance.’
50.    Windeyer J went on to point to the statutory provisions to provide, inter alia, a ‘date’ of injury in such cases.
51.    Another complication of this indefinite series of minor traumata approach is the susceptibility to difficulty in determining liability at any particular time. Ex hypothesi, if one finds a worker has received a multitude of separate and distinct traumata each assumed to cause some minor ‘personal injury’ then, at the end of the day, s 22 would apply. That would be so if there was a single incapacity. But what if there are discernible stages in the evolution of incapacity such that different consequences manifest at different times? The whole approach is not an easy concept to live with. Not that such, per se, suggests it does not have to be lived with. However, the legislature has provided an alternative which is, but probably only marginally, easier in this particular matter but, generally, imposes liability fairly clearly if, on occasion, arbitrarily. The choice between the approaches depends on the answer to the previous question; is this injury or disease?
52.    If a man develops infection in a superficial arm wound and develops cellulitis with swelling, pain and restriction of use, such would readily be classified as disease though, as a ‘portal of entry’ type case, the original wound could well be conceived as ‘personal injury’ and the rest as a direct consequence. Neilson J in Mirkovic v Davids Holdings [1995] NSWCC 19; (1995) 11 NSWCCR 656 referred to this dichotomy in the so-called ‘nature and conditions’ cases.
53.    This type of ‘optical illusion’ phenomenon is common in this situation. Like pictures of craters on the moon, sometimes they appear to be craters and at other times mountains. The same ‘injury’ sometimes seems disease and sometimes simple injury–or a succession of them. And, traditionally, authority has required an either/or approach. Any particular injury may be but not both. Zickar v MGH Plastics (1996) 187 CLR 310 is probably the beginning of the end of this stringent methodology. Only Kirby J was prepared to say so in unambiguous terms, but the majority must have moved a long way towards it to end up where they did.
54.    The debate will become increasingly sterile with the impact of s 9A. ‘Personal injury’ has, for decades, had no requirement of any degree of causality in the employment. Disease has always had such a requirement. Under the regime of s 9A both elements will require a degree of employment causality and the degree will be of the same order independent of the whether the injury be classified as ‘personal injury’ or disease. S[ection] 10 with its requirement of ‘personal injury’ (presumably exclusive of disease) on a relevant journey may be the only major area to preserve the dichotomy as a substantial influence on liability.”

Since Perry, the conditions referred to by Judge Burke, including epicondylitis, which result from repetitive occupational stress, have often been treated by the Personal Injury Commission and its statutory predecessors as disease injuries. However, such a finding is always dependent on the precise evidence in each case.

Factual error

At the arbitration hearing, Mr Boulton argued that the presence of a torn tendon in the appellant’s elbow negatived a finding of disease. It constituted a physiological change that necessitated a finding of injury. He argued:
“Well, the real issue, of course is what is the nature of the injury in this case, and we say it’s not a disease. We know that as is reflected in many of the scans that have been done on the elbow, there’s a torn tendon. One would hardly refer to a torn tendon as a disease. … it’s a damage to a structure within the body. Why has it occurred? Well, the doctors tell us. This has occurred as a result of multiple traumata brought about by repetitive use of that part of the body in the job that the worker was doing as a cleaner. That’s not a disease. This is the multiple traumata. Multiple applications of forces of a minor nature to a part of the body that brought about a tear in a tendon which has, from that time on, gone on causing pain et cetera and the subsequent condition that arose in her shoulder and in the wrist and not so much so, but Dr Bodel refers to the hand.”[9]
[9] T 27.24–28.6.
This is an argument that the appellant has largely reiterated on this appeal. The argument was considered and rejected by the Member. After referring to the opinions of each of the medical practitioners relied on by the parties, he addressed the argument as follows:
“The [appellant] placed reliance on the presence of a tendon tear as supportive of the proposition that there was no injury in the nature of a disease process present. However, there is nothing in the medical evidence which rules out an injury in the nature of a disease process causing such a tendon tear. Her own statement refers to the pain which overcame her on 28 November 2016 was a more serious iteration of the same pain she had been experiencing in the week [sic] and months leading up to that day. Additionally, there is no question the [appellant] also suffered from epicondylitis in her elbow.
As already noted, the [appellant’s] own [independent medical examiner] Dr Bodel was of the view her injury is in the nature of a disease process. That much is made clear by Dr Bodel’s comment in his report dated 23 June 2020 to the [appellant’s] solicitors in which he was asked whether, if the [appellant] was suffering from a degenerative condition, whether her employment with the respondent was the main contributing factor to either causing or aggravating that condition. The doctor was of the view that that employment was the main contributing factor to the aggravation of a disease process, namely lateral epicondylar discomfort in the region of the left elbow.
Dr Bodel was also cognisant of the presence of a tear, and did not rule out an injury in the nature of a disease process having caused that tear.
Additionally, in his report dated 25 July 2022, Dr Bodel referred to:
‘a history of gradual onset of arm pain involving the [w]hole of the left arm, mainly in the elbow initially and that later spread to the hand [into] the left shoulder. This occurred as a result of the nature and conditions of her work as a cleaner at the Bulli Hospital’.”[10]
[10] Reasons, [33]–[36].
The Member then addressed Dr Bodel’s opinion that the aggravation of the appellant’s epicondylitis by her work at Figtree had probably ceased. He rejected that opinion as being inconsistent with the appellant’s occupational history and the other medical evidence in the case. There was ample medical evidence to support the Member’s conclusions on this issue, including that of the appellant’s general practitioner who attributed 50% or one half of the appellant’s symptomatology to her employment with Figtree. There can be little doubt that the work which the appellant performed at Figtree, which was similar to the work which she performed for the respondent, was a substantial contributing factor to the aggravation of her condition as required by s 16(b) of the 1987 Act. Alternatively, the employment at Figtree was employment to the nature of which the disease was due within s 15(2).[11]
[11] See Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365.
At the arbitration hearing, the appellant also relied on the evidence of two orthopaedic surgeons who had examined her at the request of her respective employers. Dr Anthony Cadden, an orthopaedic surgeon, in a report dated 7 December 2022 also diagnosed epicondylitis of the left elbow which he said could occur “due to repetitive manual labour”. He related that condition to the appellant’s work for the respondent.[12] Although he revised his opinion in a subsequent report, he remained of the view that the appellant’s epicondylitis resulted from her employment with the respondent.
[12] Reply to Application to Resolve a Dispute (Reply), p 28.
While Dr Cadden attributed the epicondylitis to “repetitive manual labour”, he did not accept that the appellant’s injury was in the nature of a disease process.[13] He did not develop this opinion in his report.
[13] Reply, p 30.
Dr Ireland, an orthopaedic surgeon, probably retained by the insurer of Figtree, also accepted that the appellant’s work at Figtree had aggravated her condition. He thought her condition was due to “repetitive micro trauma”. He stated in a report dated 26 May 2021 that:
“Based on the information that I have, her symptoms have their geneses in the original workplace injuries sustained at Illawarra Health. Although there was some improvement while she was off work, her symptoms were exacerbated when she returned to employment with Rams[a]y Health.”[14]
[14] Application to Admit Late Documents dated 23 November 2003, p 10.
Dr Ireland continued:
“In both instances, this lady worked as a cleaner which involved constant and repetitive work with both upper limbs.”
In Military Rehabilitation and Compensation Commission v May,[15] the plurality of the High Court approved the approach to the determination of “injury” in the joint judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska:[16]
“consideration [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 as in original).
[15] [2016] HCA 19 (May).
[16] [2000] HCA 45 (Kennedy Cleaning), [39].
It is true that the High Court stated that it was unnecessary for the physiological change to be sudden or dramatic, although to be able to characterise it as such remained relevant to the task of characterisation of the injury. It is evident, however, that the approach to the determination of injury endorsed by the High Court initially involves a factual enquiry.
Although there is a distinction in the case law between a series of minor traumata and the disease process, this has not been universally endorsed as is evident from the quotation from Windeyer J in Commissioner for Railways v Bain[17] recorded in the judgment in Perry. The determination of whether the impugned condition is a disease or injury, or series of injuries caused by micro traumata, will generally be for the tribunal of fact to determine on all of the evidence in the case.
[17] (1965) 112 CLR 246, 272.
While the medical evidence was not uniform, it was plainly open to the Member to reach the conclusion that the appellant suffered a disease. There was explicit support for such a finding in the reports of Dr Bodel. The Member accepted that evidence after a thorough review of the entirety of the evidence in the case including the appellant’s evidence as to the onset of her elbow condition.
The Member specifically addressed the appellant’s contention that the torn common extensor tendon constituted an injury. He stated:
“However, there is nothing in the medical evidence which rules out an injury in the nature of the disease process causing such a tendon tear. Her own statement refers to the pain which overcame her on 28 November 2016 was a more serious iteration of the same pain she had been experiencing in the week [sic] and months leading up to that day. Additionally, there is no question that the [appellant] also suffered from epicondylitis in her elbow.”[18]
[18] Reasons, [33].
This reasoning reflects the evidence of Dr Bodel, who opined:
“The MRI scans which you indicate show ‘an increase in the size of the tear’ and this is just a statement about the pathology itself. The nature of the condition is that it will extend over time as part of the natural history of the disease process itself.”[19] (My emphasis)
[19] ARD, p 30.
Plainly, the Member found that the intra-substance tear of the common extensor tendon in the appellant’s left elbow was an intrinsic part of the process of the disease of epicondylitis. He accepted Dr Bodel’s opinion that it was part of the natural history of that disease.
This is not a case where any of the circumstances referred to by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[20] have been proven in respect of this finding. It cannot be said that in finding that the appellant suffered a disease:
“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 trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”[21]
[20] (1966) 39 ALJR 505.
[21] See also the discussion of error of fact by Basten JA in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217, [25]–[30].
The medical histories recorded by the three specialist orthopaedic surgeons were not uniform. It was for the Member to ascertain which opinion to accept in the context of the evidence of the appellant and the contemporaneous notes of the appellant’s treating specialist and general practitioner.

Error of law

By his submissions in reply, Mr Boulton submitted that the question of whether the appellant suffered an injury within 4(a) “is properly a question of law”. The error was not more precisely identified or further addressed in the submission. But Mr Boulton referred to the reasoning of the Full Bench of the Federal Court in May v Military Rehabilitation and Compensation Commission.[22] After referring to the decision of the High Court in Collector of Customs v Agfa-Gevaert Ltd,[23] the Court stated at [193] and [194]:
“Accordingly, we do not accept the respondent’s submission that the word ‘injury’ is used in an ordinary English sense in paragraph (b) of the definition in s 4(1) of the [Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC)] Act or otherwise in a way which renders the Tribunal’s decision about its meaning a question of fact. The correct construction of ‘injury’ in s 4(1) of the SRC Act is, as we have said, a question of law.
The subsequent (but inextricably related) question of whether, on the facts as found by the Tribunal in the present case, it was open to the Tribunal to decide that the appellant had not suffered an ‘injury’ is also a question of law. That is, adopting the correct construction of the statutory concept of injury in s 4(1) of the SRC Act, whether the material before the Tribunal reasonably admitted of different conclusions is a question of law.”
[22] (2015) 233 FCR 397, [193].
[23] (1996) 186 CLR 389.
It has long been accepted that if the primary facts found are necessarily outside a statutory description, a contrary decision will constitute an error of law. It is unnecessary to repeat what was said by Glass JA on this issue in Azzopardi v Tasman UEB Industries Limited.[24] His reasoning on proof of error of law has been repeatedly applied by the NSW Court of Appeal. It has, perhaps, been modified.
[24] (1985) 4 NSWLR 139 (Azzopardi), per Glass JA, [155] and [156].
In Ambulance Service of New South Wales v Daniel,[25] a case involving s 17 of the 1987 Act, Hodgson JA (with whom Sheller JA agreed) stated that:
“In my opinion, the principle in Hope and Harris is not so narrow as stated by Glass JA in Azzopardi. If, as in those cases, a statute contains legal concepts like ‘partnership’, then a question whether the facts fall within the statute will generally involve a question of law (see also NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 504 at 511–2). However, where, as in this case, a statute uses words according to their common understanding, generally the application of the statute to the facts will itself be a question of fact: in such cases, a question of law will arise only if there is a question as to the correctness of the test stated by the tribunal, or if the tribunal finds primary facts which could not fall within the terms of the statute. Neither of those alternatives is made out in this case.”
[25] [2000] NSWCA 116, [52].
The word “disease” may be used in the 1987 Act according to its “common understanding”, but the same is not true of the concept of “injury” given the much-litigated statutory definition in s 4 of the 1987 Act. I accept that the question of “injury” and of “personal injury” may give rise to a question of law. But the primary task of a tribunal is to find the facts and that will generally be determinative of whether there is an “injury”.
The plurality of the High Court in May did not accept the reasoning of the Full Court that “injury” could be established “by the drawing of inferences on a common-sense basis, independent of medical diagnosis”.[26] Rather, it approved the test propounded by Gleeson CJ and Kirby J in Kennedy Cleaning which requires the determination of “injury” by reference to “the precise evidence, on a fact by fact basis”. The nature and extent of the physiological change “remains central” to the determination of injury. The Full Court had reversed the correct legal approach to the determination of injury.
[26] May, [35].
Irrespective of whether the statement of the law by Glass JA in Azzopardi has been modified, the reasoning of the High Court and the Court of Appeal point in the same direction. In determining injury or disease, it is first necessary to make precise factual findings. Whether or not the facts fully found fall within the statute may constitute an error of law.
It cannot be suggested that the facts accepted by the Member in this case fall outside the meaning of the word “disease” or, alternatively, that they must fall within the statutory meaning of the words “personal injury” in s 4(a). The mere presence of degenerative tendon tears does not necessitate a finding of injury. A consideration of the circumstances that produced the tear/s in accordance with the instruction of the High Court in May is important. There was cogent evidence adduced in the appellant’s case and accepted by the Member that they were an intrinsic part of a disease process. The acceptance of that evidence was not challenged on this appeal. The argument that the error is one of law does not advance the appellant’s case.
By her submission in reply, the appellant submitted that “injury” and “disease” are not “mutually exclusive”. That is undoubtedly correct. Without limiting the pathologies that may constitute injury, haemorrhages, aneurysms, myocardial infarctions, and a lumbar disc protrusion on the background of disc degeneration[27] have been held to be “injuries” even though they may also be the “end result” of a disease process. “There is no reason to read ‘injury’ down because of the alternative and additional definition of compensable disease conditions”.[28]
[27] Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31.
[28] Kennedy Cleaning per Gleeson CJ and Kirby J, [40].
Although the submission was only put in concrete terms in reply, the appellant enclosed and referred to the decision in Ky in its primary submission and in its chronology. Indeed, it is the only case referred to by the appellant. Ky addresses the issue raised by the appellant. Neither submission identify the error allegedly made by the Member. More importantly, the submission that “injury” and “disease” were not mutually exclusive was not made at the arbitration hearing. Generally, a failure to raise an issue of fact or law at an arbitration hearing precludes it being raised on appeal.[29] There is no reason why there should be an exception in this case.
[29] “… the conduct of the trial by a party may be such that he can not seek to improve his position on appeal by contentions of fact or law which properly should have been raised at the trial, and this Court’s appellate rehearing will be denied to him. Unfortunately for the appellants, that is this case.” per Giles JA in Chilcotin Pty v Cenelage Pty Ltd [1999] NSWCA 11, [90].
Nonetheless, the sole ground of appeal raises a related issue. The appellant pleaded an injury simpliciter as a result of the nature of her work. Mr Boulton argued forcibly that the tendon tear constituted an injury within s 4(a). In his submission in reply, Mr Young contemplated that “an injury equally can happen as well as a disease” as a result of micro traumata.[30] In this context, did the Member respond to the appellant’s case of “injury”?
[30] T 37.13.
There is no specific finding that the appellant did not suffer an “injury” under s 4(a). The Member’s determination that the “preponderance of the medical evidence supports a finding … of a disease”[31] does not exclude the possibility that the facts proven might also be characterised as “injury”. If the Member approached the matter on the basis that a preference for a finding of “disease” eliminated the need to consider the issue of injury that would constitute a misdirection and an appealable error.
[31] Reasons, [44].
The determination may reflect the way the parties delineated the issues for determination. There was no dispute that the appellant suffered a tendon tear/s in association with her epicondylitis. The respondent argued that, irrespective of whether it was caused by repeated micro-trauma, the evidence supported a finding of a disease process in the appellant’s left elbow. The appellant argued that the presence of tendon tear/s caused by micro-traumata necessitated a finding of injury. Often an acceptance of one party’s case must necessarily involve a rejection of the others. However, that is not necessarily true where the contest is between injury simpliciter and disease.
While the Member’s reasons for his finding of disease are clear and cogent, they are silent on whether the tendon tear at the left elbow had the characteristics of an “injury”. There is no reference in the reasons to any of the, admittedly vague, indicia referred to in May and Kennedy Cleaning which must underly the rejection or acceptance of injury simpliciter. In May, Gageler J (as his Honour then was) referred to some of these indicia as follows:[32]
“An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.” (Footnotes omitted.)
[32] May, [75].

In the absence of a finding on “injury” under 4(a) or reference to these indicia, I conclude that the Member did not respond to the appellant’s argument that she suffered an “injury”. That is an error within s 352(5) of the 1998 Act.

CONCLUSION

For the reasons given above the appeal succeeds. The reasons should not be taken as endorsing a conclusion that the appellant suffered “injury”. There are powerful reasons consistent with the Member’s finding that she did not. The disease provisions were intended to facilitate a worker’s claim for compensation. They were not intended to be a shield for an employer. Nonetheless, they require parties to make sound choices in respect of their pleadings. The present pleadings make the appellant’s pursuit of permanent impairment compensation for her acknowledged injury and consequential condition difficult. Those difficulties may have been greatly diminished if her last employer had been joined as a party to the proceedings.
While s 352(6A) of the 1998 Act provides that the decision may be revoked and a new decision can be made, s 352(5) of the 1998 Act limits the Presidential Member’s task to the identification of error and the correction of such error. The re-determination of this dispute requires a consideration of the evidence and the weight to be afforded to the available evidence. These are matters that generally fall within the scope of a primary decision-maker. For those reasons, I decline to re-determine the dispute and remit the matter to a different Member for re-determination.

DECISION

The Certificate of Determination dated 9 February 2024 is revoked.
The matter is remitted to a different non-presidential Member for re-determination.

Paul Sweeney

ACTING DEPUTY PRESIDENT

15 October 2024