Scevola v Damstra Technology Pty Ltd - [2023] NSWPICPD 3

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3
APPELLANT:	John Scevola
RESPONDENT:	Damstra Technology Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-W6563/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	30 January 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 30 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – principles applicable to the identification of error in a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered and applied – whether error in affording no weight to the opinion of a medical expert which was based on an incorrect history – Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505; Niko Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Turner Freeman Lawyers
Respondent:
Mr Andrew Parker, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Sweeney
DATE OF Member’s DECISION:	30 March 2022

INTRODUCTION AND BACKGROUND

Mr John Scevola (the appellant) was employed by Damstra Technology Pty Ltd (the respondent) as a business development manager. On 23 June 2020, the appellant was travelling on his motor scooter from a meeting with a client to his home office, which was his designated office during the COVID-19 lockdown. During the journey, he swerved to avoid a collision with a car that pulled in front of him. The appellant fell from his scooter, suffering injury to his left shoulder. The respondent ultimately accepted liability for the left shoulder.
The appellant subsequently made a claim for treatment expenses associated with right shoulder symptoms, which he alleged arose as a result of overusing his right shoulder in order to protect his left shoulder because of the pain and restrictions in his left shoulder. The treatment expenses included the costs of, and incidental to, proposed surgery to the right shoulder. The respondent denied liability in respect of the claim on the basis that the right shoulder condition was a pre-existing condition and that the proposed surgery was not reasonably necessary, firstly because the condition was not consequent upon the work-related injury, and secondly, because the proposed surgery was not likely to be effective.
The appellant commenced proceedings in the Personal Injury Commission (the Commission). The dispute could not be resolved, and the matter proceeded to arbitration on 21 March 2022. The Member delivered an oral decision with reasons on 28 March 2022 and issued a Certificate of Determination on 30 March 2022. He determined that he was not satisfied that the appellant had suffered an injury to his right shoulder or that the proposed surgery was reasonably necessary as a result of the left shoulder injury.
The appellant appeals the decision.

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.”
Both the appellant and the respondent are content for the appeal to be determined without an oral hearing.
I have had regard to Procedural Directions PIC2 and WC3, the documents and submissions 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.
There is no issue that the Member’s decision was final, therefore leave to appeal the decision is not required.[1]

THE EVIDENCE

[1] Sections 352(1) and 352(3A) of the 1998 Act.

The appellant’s statement evidence

The appellant provided a statement dated 13 December 2021.[2] He described the incident on 23 June 2020 when he fell from his scooter. He stated:
“As I was travelling, a vehicle came in front of me without much notice and in an attempt to avoid collision, I swerved my motorcycle which resulted in me falling off the bike and sustaining a fall. I was wearing protection gear. I did not make much of it immediately, however I noticed some discomfort following the fall. …
The following day, I noticed my left shoulder had turned blue in colour and accordingly, I consulted my general practitioner, Dr Matthew Masterson.”[3]
[2] Application to Resolve a Dispute (ARD), pp 1–3.
[3] Appellant’s statement dated 13 December 2021, [5]–[6].
The appellant said that Dr Masterson arranged radiological investigations and referred him to Dr Manish Gupta, orthopaedic surgeon, who ultimately proposed left shoulder surgery, but because of the appellant’s work commitments, the surgery did not go ahead. The appellant stated that he was also referred to Mr Andrew Noyes, physiotherapist, who treated him for six months, however, the relief was only temporary.
The appellant asserted that over time, he relied more on his right shoulder to perform all tasks requiring use of both arms in order to avoid further injury to his left shoulder. He recalled that on one occasion, he was shaving his head, which he normally performed using both arms, but was predominantly using his right arm. He said that he noticed a clicking sensation in his right shoulder and the following day the right shoulder had developed a blueish colour, so he consulted his general practitioner, who again referred him to Dr Gupta.
The appellant stated that Dr Gupta recommended surgery to the right shoulder and a request was made to the respondent to pay the costs of the surgery. The appellant said that the respondent then arranged for him to be medically examined by Dr Stephen Rimmer, orthopaedic surgeon. The appellant advised that, a few days after the consultation, he was notified by telephone that the respondent was disputing liability for both shoulders.
The appellant asserted that the accident on 23 June 2020 caused injury to both shoulders, was significant and there was no other “mechanism of injury.” He reported that he experienced pain daily, and the pain in his right shoulder had worsened. He disclosed that he had experienced right shoulder symptoms prior to the left shoulder injury, but the symptoms were manageable, causing little concern until the overuse, which caused a significant aggravation.
The appellant said that he was keen to undergo the right shoulder surgery, and have it performed before the left shoulder surgery, because he was right hand dominant. The appellant criticised the examination by Dr Rimmer, and indicated that he had utmost faith in his treating doctors, who had been treating him for some time.
The appellant made a supplementary statement dated 17 February 2022.[4] He complained about the manner in which Dr Rimmer performed the medical examination and Dr Rimmer’s view that his injury had resolved. The appellant disputed that his injury had resolved and described the ongoing symptoms he was experiencing. The appellant also pointed to the radiological evidence of the extensive pathology in both shoulders.
[4] Appellant’s Application to Admit Late Documents (AALD) dated 14 March 2022, pp 1–3.
The appellant also referred to Dr Rimmer’s opinion that the left shoulder was a consequence of an earlier, non-work related scooter injury in 2015 or 2016. He asserted that the intermittent pain he experienced following that accident was manageable with physiotherapy, cortisone and rehabilitation. He indicated that he had no difficulties managing his work, and his upper body weight training, and the last cortisone injection was in about 2019.
The appellant pointed to Dr Rimmer’s opinion that the right shoulder condition was solely attributable to the earlier scooter accident. The appellant conceded that he had been given cortisone injections into his right shoulder following that accident but asserted that he did not suffer any continuing symptoms in the right shoulder after 2019. He further asserted that following the accident in 2020, his pain went from “manageable to intolerable.”[5] He added that, prior to the accident in 2020, there had been no recommendation for surgery to either shoulder.

The medical evidence

[5] Statement dated 17 February 2022, [10].

DMC Medical Centre clinical notes

Following the injury, the appellant attended the DMC Medical Centre, where he consulted Dr Matthew Masterson. The appellant relied on Dr Masterson’s clinical notes commencing from 30 June 2020.[6] The respondent filed a complete record of the DMC Medical Centre clinical notes, commencing from 18 September 2015,[7] together with copies of radiological and other investigations arranged by that practice.[8]
[6] ARD, pp 41–47.
[7] Respondent’s AALD dated 14 March 2022, pp 5–41.
[8] Respondent’s AALD dated 14 March 2022, pp 41–68.
On 20 January 2016, the appellant attended Dr Masterson complaining of pain in the left shoulder and elbow following a fall from his motor scooter.[9] Dr Masterson arranged for the appellant to undergo x-rays of both regions. The appellant attended for review of the left shoulder on a number of occasions throughout 2016. Surgery was discussed. Dr Masterson referred to left rotator cuff pathology (tears), but noted the appellant was concerned that the surgery would interfere with a trip to Europe in 2017.[10]
[9] Respondent’s AALD dated 14 March 2022, p 38.
[10] Clinical entry dated 7 October 2016, respondent’s AALD dated 14 March 2022, p 33.
On 31 January 2017, Dr Masterson recorded complaints of bilateral chronic shoulder rotator injuries.[11] On 23 May 2017, Dr Masterson noted that the appellant’s left shoulder pain had improved following a steroid injection, and the appellant was waiting for a steroid injection in the right shoulder to address a known rotator cuff tear. On 20 October 2017, the appellant complained of worsening right shoulder pain over the past few months, and Dr Masterson arranged for him to undergo an MRI scan.[12]
[11] Respondent’s AALD dated 14 March 2022, p 32.
[12] Respondent’s AALD dated 14 March 2022, p 30.
The appellant continued to consult Dr Masterson in relation to various ailments. He next reported right shoulder pain on 16 February 2018, which he described as improved, but he had continuing pain anteriorly.[13] On 6 August 2019, Dr Masterson recorded:
“Shoulders reviewed
intermittent discfomrt (sic)
sees chiro
right shoulder feels 70%, left shoulder feels 30%”.[14]
[13] Respondent’s AALD dated 14 March 2022, pp 26–27.
[14] Respondent’s AALD dated 14 March 2022, p 21.
The appellant consulted Dr Masterson on 3 December 2019 in relation to several complaints. At this consultation, Dr Masterson reviewed the appellant’s bilateral rotator cuff tears.[15]
[15] Respondent’s AALD dated 14 March 2022, p 19.
The appellant consulted Dr Masterson on a number of occasions throughout 2020. The appellant’s complaints to Dr Masterson included a complaint on 30 June 2020 and 11 July 2020 of injury to the left shoulder following a fall from his scooter on 23 June 2020. On 8 September 2020, the appellant complained that his right shoulder was slightly sore, which the appellant attributed to feeling a click in the shoulder when he was shaving his head. On 26 September 2020, Dr Masterson queried whether the right shoulder pain was attributable to “overuse,”[16] and on 30 September the doctor took the history that the appellant had been using his right arm to compensate for the left shoulder dysfunction.[17] The appellant thereafter complained of continuing bilateral shoulder pain.
[16] Respondent’s AALD dated 14 March 2022, p 13.
[17] Respondent’s AALD dated 14 March 2022, p 12.

The radiological investigations

The radiological investigations of the left shoulder commencing in 2016 disclosed significant pathology in that shoulder including a full thickness rotator cuff tear. Several ultrasound guided injections were administered from that time.
An MRI scan of the right shoulder dated 29 October 2016 was in evidence.[18] The radiologist formed the view that the scan of the right shoulder disclosed:
“Full thickness tear supraspinatus propagating into the mid infraspinatus with medial retraction and tendon delamination. Mild muscle bulk loss. Tendinopathy of the biceps. There is a small local low grade insertional subscapularis tear. Degenerative labral fraying.”[19]
[18] AALD dated 17 March 2022, pp 1–4.
[19] AALD dated 17 March 2022, p 2.
An ultrasound guided injection into the right shoulder was administered on 25 May 2017[20] and on 9 March 2018,[21] and an ultrasound investigation was performed on 28 February 2018.[22] The radiologist who performed the ultrasound investigation concluded that:
“There is tendinosis seen at the biceps tendon.
There is a partial thickness tear of the subscapularis and a complete tear of the supraspinatus. There are features of subacromial bursitis.”
[20] Respondent’s AALD dated 14 March 2022, p 65.
[21] Respondent’s AALD dated 14 March 2022, p 52.
[22] Respondent’s AALD dated 14 March 2022, pp 67–68.
An MRI scan of the right shoulder was conducted on 17 October 2020. The MRI scan disclosed:
“Complete full-thickness insertional supraspinatus tear. There has been some propagation of the infraspinatus tear compared with previously. There is a moderate reduction in muscle bulk of the supraspinatus and infraspinatus. There is an outlet spur and there is advanced AC joint arthrosis”.[23]
[23] Respondent’s AALD dated 14 March 2022, p 60.

Dr Con Glezos, orthopaedic surgeon

The appellant was referred to Dr Con Glezos by Dr Masterson in 2016 in relation to trigger symptoms in his right ring finger. Dr Glezos reported to Dr Masterson on 20 January 2016.[24]
[24] Respondent’s AALD dated 14 March 2022, pp 1–2.
Relevantly, Dr Glezos recorded a history of the appellant having been involved in an accident on his scooter on the day of the consultation, landed on his left elbow and was suffering mainly left elbow and left shoulder pain. Dr Glezos noted that the appellant had pre-existing left shoulder problems that probably indicated a rotator cuff impingement problem.

Dr Desmond Bokor, shoulder and elbow orthopaedic surgeon

Dr Masterson also referred the appellant to Dr Desmond Bokor in 2016. Dr Bokor reported to Dr Masterson on 26 October 2016 and 23 November 2016.
In his first report,[25] Dr Bokor recorded a history of the appellant having suffered an injury to his left shoulder in January 2016. Dr Bokor examined the appellant and reported significant weakness of the supraspinatus on the left side as well as mild pain when loading on the right side. He diagnosed a massive tear of the left rotator cuff and probably a smaller underlying rotator cuff tear on the right. He arranged for the appellant to undergo MRI scans of both shoulders.
[25] Respondent’s AALD dated 14 March 2022, p 3.
In his second report, Dr Bokor reviewed the MRI scans.[26] He described the left shoulder pathology as showing a massive tear of the rotator cuff involving all of the supraspinatus and infraspinatus. He considered the rotator cuff to be unrepairable and that it would deteriorate over time. He described the right shoulder pathology as a medium sized full thickness tear involving all of the supraspinatus and significant atrophy and retraction. He reported that the appellant’s right shoulder symptoms were negligible.
[26] Respondent’s AALD dated 14 March 2022, p 4.

Dr Manish Gupta, orthopaedic surgeon

The appellant was referred to Dr Manish Gupta by Dr Masterson. Dr Gupta reported to Dr Masterson on 14 August 2020.[27] He recorded the history that the appellant had suffered an injury in the form of a left rotator cuff tendon tear which caused pain and functional limitations, although the appellant was able to manage those symptoms and restrictions. Dr Gupta reported that the appellant had developed right shoulder symptoms, more severe than the left, as a result of overusing the right arm in order to compensate for the left shoulder condition.
[27] ARD, p 27.
Dr Gupta observed that the MRI scan of the right shoulder revealed significant full thickness tears of the rotator cuff, which were similar findings to the pathology in the left shoulder. He said that surgery was indicated, firstly to the right shoulder and then, following successful rehabilitation, the left shoulder.
Dr Gupta reported again to Dr Masterson following a further consultation on 21 October 2020. He repeated the history provided in his earlier report and confirmed that the appellant was experiencing greater pain and weakness in his right shoulder than in the left. Dr Gupta advised that the appellant was keen to undergo right (dominant) shoulder surgery and approval for the surgery would be sought. He indicated that during the surgical procedure he would use a bioinductive augmentation device which would augment the repair and assist with recovery, if the respondent approved of the device.
Dr Gupta provided a report dated 19 July 2021 to the appellant’s legal representatives.[28] He advised that the appellant first consulted him on 14 August 2020 in relation to injuries suffered in a fall from a scooter on 23 June 2020 following which Dr Gupta recommended non-operative treatment. Dr Gupta recorded the history that the appellant had “injured both shoulders but predominantly in the left directly related to that fall and subsequently developed significant symptoms in the right shoulder from compensatory early use whilst he was nursing his injured left shoulder.”
[28] ARD, pp 25–26.
Dr Gupta noted that, by the time of the first consultation, the right shoulder was more symptomatic. He described the appellant’s condition in both shoulders as “significant injuries involving important tendons.” He said that in cases of traumatic rotator cuff tears which have failed rehabilitation, the best option is surgical intervention. Dr Gupta recorded that the appellant gave him a history of no prior shoulder problems and was previously living an active lifestyle, so that, even if there was evidence of pre-existing pathology, the work-related event had caused a material aggravation to the condition which required treatment. Dr Gupta said that, on the basis that the appellant had no prior clinical concerns with his shoulders, it was reasonable to assume the clinical picture was caused by the work injury.
Dr Gupta indicated that he saw the appellant for the second time on 21 October 2020 and had not seen the appellant again. He said, however, that if the appellant was continuing to experience pain and limitations, surgery would be of benefit.

Dr Stephen Rimmer, orthopaedic surgeon

Dr Stephen Rimmer was qualified by the respondent to provide an opinion on liability for the appellant’s claim. He examined the appellant on 15 January 2021 and provided a report on 20 January 2021.[29] Dr Rimmer took a history of the appellant’s injury to the left shoulder and noted that the appellant later experienced right shoulder pain when shaving his head. He described the appellant’s past history as significant, in that the appellant suffered non-work related injuries to both shoulders in falls from his scooter, suffering rotator cuff tears in both shoulders.
[29] Reply to Application to Resolve a Dispute, pp 20–27.

Dr Rimmer noted the pathology recorded in MRI scans of the left shoulder dated 2 July 2020 and the right shoulder dated 17 October 2020. Dr Rimmer considered that the appellant did not sustain a left shoulder rotator cuff tear in the 2020 incident, as the MRI scan dated 2 July 2020 referred to the rotator cuff tear being much larger than that shown on the previous scan. He said that the rotator cuff tear was diagnosed in 2015.
Dr Rimmer referred to the appellant’s description of the 2016 right shoulder injury, and the MRI scan of the right shoulder dated 17 October 2020 which reported deterioration of the infraspinatus tear reported previously. Dr Rimmer considered that the right shoulder condition was pre-existing. He added that the appellant had “freely admitted” to him that the right rotator cuff tear was sustained in the earlier 2016 injury. Dr Rimmer did not provide an opinion in respect of whether or not the right shoulder symptoms were referable to overuse of the right arm because of the 2020 injury. The Member did not find Dr Rimmer’s opinion of assistance, and there is no issue raised in the appeal in respect of the Member’s failure to rely on that opinion. It is therefore not necessary to summarise the remainder of Dr Rimmer’s report, or his subsequent report dated 24 January 2022.

Dr James Bodel, orthopaedic surgeon

Dr James Bodel was asked by the appellant’s legal representatives to examine the appellant and provide his opinion. He provided a report dated 10 September 2021.[30] He recorded the history of injury and described the injury sustained by the appellant as “injury to both shoulders.” He noted that the right shoulder symptoms developed over time and that the appellant was favouring his right shoulder in order to protect the left side.
[30] ARD, pp 16–24.
Dr Bodel noted that an MRI scan of the left shoulder showed evidence of a full thickness tear of the supraspinatus tendon and biceps tendinopathy. He added that the appellant had suffered a fall off a bike six years previously, which caused minor discomfort that settled within a very brief period.
Dr Bodel recorded the appellant’s symptoms and limitations. He was of the view that the pathology indicated that surgical repair was necessary, in the context of an ultrasound guided injection performed on 8 April 2020 which provided only temporary relief. Dr Bodel disputed the respondent’s reasons for its initial denial of liability for the left shoulder. He referred to the opinion of Dr Stephen Rimmer. He said that it appeared that Dr Rimmer had formed the view that the rotator cuff tear did not occur in the 2020 injury because there was an MRI scan in 2015 that confirmed the rotator cuff tear in the left shoulder at that time. Dr Bodel pointed out that the history provided to him was that the appellant had suffered a fall six years previously, following which he received three cortisone injections and completely recovered from the injury. Dr Bodel conceded that there could be evidence of previous pathology but opined that the appellant had suffered a new injury.
Dr Bodel disagreed with Dr Rimmer’s opinion that there was no relationship between the events of 2020 and the need for surgery to both shoulders. He opined that even though the appellant may have had pre-existing pathology in the left shoulder, the injury significantly aggravated, exacerbated, accelerated and deteriorated the disease process. He further opined that it was likely that the appellant suffered from some degenerative change in the right shoulder which had also caused aggravation, exacerbation, acceleration and deterioration of the right shoulder by overusing that shoulder to protect the left shoulder.
Dr Bodel considered that the proposed surgical intervention for both shoulders was reasonable. He diagnosed the appellant as suffering from bilateral rotator cuff tears and was of the view that the left shoulder tear had progressed to become larger, and the right shoulder had been an aggravation, exacerbation, acceleration and deterioration of the “previously unrecognised rotator cuff tear.”[31]
[31] ARD, p 21.
Dr Bodel provided a supplementary report dated 17 February 2022, in which he addressed further questions posed by the appellant’s legal representatives.[32] He advised that he considered that there had been additional structural damage to the rotator cuff which occurred in the 2020 injury which had not resolved, and surgery was required. It is not clear whether he was referring to the left or the right shoulder. He commented on whether the type of surgery proposed was reasonable.
[32] Appellant’s AALD dated 14 March 2022, pp 4–6.

THE MEMBER’S REASONS

The Member delivered his reasons orally and the reasons were transcribed.
The Member noted that the appellant had a long history of difficulties with his shoulders. He further noted that the appellant sustained an injury to his left shoulder in an incident on 23 June 2020, when the appellant fell from his scooter.
The Member referred to the description of injury contained in the ARD, which alleged that the appellant suffered an injury to his left shoulder, causing the appellant to overuse his right arm, thereby causing an aggravation of or exacerbation of the pathology in the appellant’s right shoulder. The Member said that the case presented at arbitration was that the appellant had suffered a consequential condition in his right shoulder. He also noted that the respondent argued that the need for surgery was not reasonably necessary on the basis that it did not result from the injury, would not alleviate the appellant’s symptoms and was not reasonably necessary within the meaning of s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The Member noted the submissions of the parties. He turned to the evidence of what he termed “historical matters.” He referred to the history recorded in Dr Glezos’ report dated 20 January 2016 that the appellant had fallen off his bike on the morning of the consultation and suffered left elbow and left shoulder pain. He also noted that Dr Glezos recorded that the appellant had a pre-existing left shoulder condition which was likely a rotator cuff impingement syndrome.
The Member then referred to the history recorded by Dr Bokor on 26 October 2016 that the appellant’s pain had settled to a level of minimal discomfort at night but was significant when he used his arms in certain patterns. The Member noted that Dr Bokor considered the symptoms were likely to be from a massive left rotator cuff tear (which was consistent with the MRI scan undertaken and inoperable) and an underlying right rotator cuff tear, which the MRI scan disclosed was a medium full thickness tear. The Member further noted that Dr Bokor described the appellant’s right shoulder symptoms as negligible.
The Member summarised the appellant’s statement evidence. He referred to the appellant’s assertion that he was relying on his right shoulder more in order to avoid further injury to his left shoulder, and that while shaving with his right hand, he noticed a click in the right shoulder. The Member pointed out that the appellant admitted prior right shoulder pain but said that the right shoulder was never a concern until the left arm was injured.
The Member quoted at length from the opinion of Dr Gupta, in which Dr Gupta concluded that, on the basis of the history provided by the appellant that he did not have any pre-existing “clinical concerns” with his shoulders, the appellant’s condition was related to the incident. The Member commented that it did not appear that Dr Gupta had available to him the evidence from Dr Bokor, or the MRI scans that were taken in 2016.
The Member added that it was “not at all clear” that Dr Gupta had an accurate history of the condition of the appellant’s shoulders between 2016 and 2019. The Member noted that the referral from Dr Masterson to Dr Gupta referred to the symptoms having commenced on 23 June 2020.
The Member summarised the evidence provided by Dr Rimmer and that of Dr Bodel. He referred to the conclusion reached by Dr Rimmer that the pathology in the right shoulder was inoperable, and that the right shoulder condition was pre-existing. He further referred to the history recorded by Dr Bodel that, after the fall in 2016, the appellant experienced “minor discomfort” which settled completely after a brief period. The Member said that, in Dr Bodel’s supplementary report, he noted that the appellant had left shoulder symptoms from time to time after the 2016 injury and perhaps prior to that.
The Member turned to the entries in Dr Masterson’s clinical notes, which he summarised. He commented that the fact that the appellant sought an ultrasound injection for the right shoulder on 23 May 2017 would indicate that there had been some progression in the appellant’s right shoulder condition since the appellant saw Dr Bokor in 2016. The Member considered that the meaning of the reference in the entry to the right shoulder being “70%” on 29 November 2019 [sic, 6 August 2019] was unclear.
The Member reasoned that the first consideration was that the respondent accepted that the appellant injured his left shoulder in the 2020 injury. He said that the appellant’s case was essentially that he had suffered a consequential condition in the right shoulder as a result of the left shoulder injury rather than an injury simpliciter. The Member commented that none of the usual indicia of an injury to the right shoulder were present. He observed that in respect of the claim for the costs of the surgery, a causal determination was required. That is that the need for the surgery resulted from the injury, which was a separate determination to the question of whether the appellant suffered a consequential condition in the right shoulder as a result of overuse. The Member said that whether the right (dominant) arm symptoms were a consequence of the left arm injury was a medical question and required consideration of the medical evidence.
The Member said that the respondent’s submission that Dr Bodel and Dr Gupta had inadequate histories had “considerable force” and considered that the inadequacy of the histories undermined the strength of those doctors’ opinions.
The Member referred to the history recorded by Dr Bodel that the appellant recovered significantly from the 2016 injury with only minor discomfort. The Member considered that that history was clearly not consistent with the clinical records of persisting symptoms in both shoulders. The Member formed the view that the history recorded by Dr Bodel was so deficient that it could not be assumed that Dr Bodel’s opinion on the causal nexus had any force.
The Member considered that the nature of this case required a careful evaluation of the condition of both shoulders prior to the injury, in comparison to the post-injury picture. The Member said that because of the flawed history, Dr Bodel was not in a good position to undertake that exercise. The Member observed that, similarly, Dr Gupta had based his opinion on the history that the appellant was asymptomatic prior to the 2020 injury, which the Member said, led him to the conclusion that little weight could be afforded to the opinion of Dr Gupta.
The Member concluded that the absence of medical opinions from those doctors that were based upon accurate histories caused the appellant’s case in respect of the right shoulder condition to fail.
The Member referred to the appellant’s statement evidence that his right shoulder symptoms deteriorated when he was shaving his head, which was normally a task performed with both arms. The Member pointed out that the medical evidence did not specifically address the event, or explain the mechanism of that onset of symptoms, what pathology may have been caused, or whether that event was a factor that led to the surgery. The Member added that the appellant gave no other examples of activities that he previously undertook with his left arm that he elected to do using his dominant right arm after the injury in 2020. The Member concluded that in the absence of medical support, he could not conclude that the right shoulder condition resulted from the left shoulder injury. He referred to the “state of the evidence” which left the appellant unable to prove that the need for surgery in the right shoulder was either caused by an injury or was a consequential medical condition.
The Certificate of Determination issued on 30 March 2022 records:
“The determination of the Commission in this matter is as follows:
1. The [appellant] has not established injury to his right shoulder arising out of and in the course of his employment on 23 June 2020.
2. The [appellant] has not established that his need for right shoulder surgery proposed by Dr Gupta is reasonably necessary as a result of the accepted injury to his left shoulder on 23 June 2020.
3.Award for the respondent.”

GROUNDS OF APPEAL

The appellant asserts that the Member’s determination that the appellant had not proved that the need for surgery to his right shoulder was caused either by an injury or by a consequential condition was wrong. The appellant asserts that the Member’s decision was affected by errors of mixed fact and law on each of the following grounds:
(a) Ground One: the Member failed to find that the evidence established that, following the accident on 23 June 2020, the appellant experienced the onset of significant and increased right shoulder symptoms, consistent with increased use of that limb, and the development of a consequential condition;
(b) Ground Two: the Member failed to have regard to materially relevant contemporaneous treatment records of the appellant’s General Practitioner, Dr Masterson, which documented the development of a consequential condition affecting the right shoulder;

(c) Ground Three: the Member failed to have regard to the materially relevant contemporaneous report of Dr Gupta dated 14 August 2020, which recorded that the appellant “recently has developed compensatory over use issues with the right shoulder”, and that “it was in fact the right shoulder that was more painful and weak”;

(d) Ground Four: the Member reached a conclusion contrary to the preponderance of medical opinion, and unsupported by any medical evidence tendered by the respondent in relation to the issue of overuse;

(e) Ground Five: the Member failed to find that the right shoulder surgery proposed by Dr Gupta was reasonably necessary as a result of the injury to the appellant’s left shoulder, and the development of a consequential condition affecting the left shoulder, and
(f) Ground Six: the Member failed to order the respondent to pay for the costs of surgery proposed by Dr Gupta and associated treatment.

SUBMISSIONS

The appellant’s general submissions

The appellant provides a chronology of his medical attendances for treatment of his right shoulder condition both before and after the 2020 injury. He points out that he attended Dr Bokor in 2016 and that despite the significant pathology in the right shoulder, Dr Bokor recorded the symptoms in that shoulder as being “negligible.” The appellant further points out that he did not seek treatment for the right shoulder between 6 August 2019 and August 2020.

The respondent’s general submissions

The respondent submits that the appeal is simply an expression of a dissatisfaction with the outcome of the dispute and is framed in the nature of a rehearing. The respondent relies on Northern NSW Local Health Network v Heggie[33] to submit that the appellant is required to establish error on the part of the Member before a Presidential member can intervene. The respondent further submits that the Member made factual findings that are not the subject of this appeal, which were that the Member:
(a)    implicitly did not accept the appellant’s statement evidence in relation to the extent of his right shoulder condition;
(b)    expressly rejected the history relied upon by Dr Gupta and Dr Bodel, and
(c)    applied the correct legal test when he identified that it was necessary to determine whether the right shoulder condition was caused by the left shoulder injury and whether the need for surgery results from the injury, which is dependent upon medical opinion.
[33] [2013] NSWCA 255 (Heggie).
The respondent refers to Shellharbour City Council v Rhiannon Rigby[34] and relies on that authority to say that the weight to be afforded to evidence is a matter for the primary decision-maker.

As to Ground One

[34] [2006] NSWCA 308.

The appellant’s submissions

The appellant submits that the Member afforded much of his reasoning to the presence of the pre-existing pathology in the appellant’s right shoulder. The appellant says that the Member failed to acknowledge that the effect of the pathology prior to the 2020 injury was relatively benign and was not significant enough to require specialist intervention or consideration of surgical intervention for a period of more than three and a half years.
The appellant refers to the opinion of Dr Gupta, as set out in his report dated 14 August 2020, and submits that the Member failed to take into account the reason for the onset of significant symptoms in the right shoulder. Further, the Member did not rely on the evidence of Dr Rimmer to reject the appellant’s claim. The appellant says that the Member did not accept that Dr Gupta and Dr Bodel had a correct history.
The appellant submits that the Member failed to take into account all of the evidence which, when read cumulatively, could only lead to the finding that the onset of right shoulder symptoms in 2020 was due to increased use of the right arm. The appellant asserts that there was no other evidence-based proposition that would provide an alternate basis to explain the increase in the right shoulder condition at that time.
The appellant submits that his significant pre-existing left shoulder pathology did not provide a basis to reject the proposition that an aggravation of the left shoulder pathology occurred in 2020. The appellant says that it was appropriate that the respondent accepted liability for that injury. The appellant adds that, similarly, the presence of pre-existing right shoulder pathology would not preclude an aggravation of that pathology from overuse of that arm because of the left shoulder injury.
The appellant refers to his statement evidence that he was increasingly using his right arm because of his left shoulder symptoms, which he described as “unchallenged” evidence.
The appellant asserts that Dr Gupta, in his report dated 14 August 2020, took a clear history of right shoulder symptoms occurring as a result of “compensatory overuse.” The appellant adds that Dr Masterson’s records noted the onset and continuation of severe right shoulder complaints in the context of overuse of the right arm, as opposed to minor right shoulder symptoms recorded in Dr Masterson’s notes prior to the 2020 injury. The appellant refers to the assessment in August 2019 that his right shoulder was “70%”, (which the appellant says is of full function) and the left shoulder was “30%.” The appellant submits that it was obvious what that assessment meant and asserts that the Member failed to take into account the cause of the sudden later deterioration, which rendered the right shoulder symptoms more significant than the left shoulder.
The appellant submits that the history recorded by Dr Gupta that the appellant was previously asymptomatic was not a sufficient basis upon which to entirely reject the doctor’s opinion in the context of there being an absence of record of symptoms between 6 August 2019 and the accident in mid-2020. The appellant points out that the clinical notes show that there was a significant increase in symptoms after the 2020 injury.
The appellant asserts that the fact that Dr Gupta formed his view on the background of a history that the right shoulder was asymptomatic prior to the 2020 injury does not detract from the doctor’s opinion in relation to overuse. The appellant says that there was a dramatic increase in symptoms and the appellant’s overuse of the right arm was noted by Dr Masterson, Dr Gupta and Dr Bodel. The appellant asserts that the explanation for the increase in symptoms was obvious and it was the only available explanation.

The appellant refers to the Member’s rejection of Dr Bodel’s opinion, which the appellant says was misdirected. The appellant submits that the history recorded by Dr Bodel that the appellant developed pain and stiffness in the right shoulder as a result of favouring the right arm accorded with the appellant’s statement evidence and the contemporaneous records of Dr Gupta and Dr Masterson. The appellant adds that Dr Bodel was aware of the appellant’s pre-existing conditions when he reviewed the opinion of Dr Rimmer and diagnosed an aggravation, acceleration, exacerbation and deterioration of the disease process as a result the 2020 injury. The appellant points out that Dr Bodel, in his supplementary report, opined that the appellant suffered additional structural damage to the rotator cuff.
The appellant submits that the Member failed to consider why the appellant’s right shoulder was more symptomatic than the left following the 2020 injury. The appellant submits that Dr Bokor in December 2016 recorded that the pathology in the right shoulder was not as significant as that of the left shoulder, and Dr Masterson’s notes reveal that the left shoulder symptoms were greater, and the left shoulder was treated more frequently, prior to the 2020 injury.

The respondent’s submissions

The respondent asserts that the appellant fails to acknowledge that the Member made a finding that the appellant’s right shoulder condition was not benign, which impacted upon the weight of the opinions of Dr Masterson, Dr Gupta and Dr Bodel. The respondent submits that the Member’s findings were open to him, were matters for the Member to decide and, in any event, were undoubtedly correct.
The respondent refers to the appellant’s submission that the Member ought to have compared the nature of the appellant’s symptoms and the number of complaints made before and after the 2020 injury and submits that such an approach is not appropriate. The appellant submits that the Member was correct by not taking that approach.
The respondent asserts that the dispute could only be resolved on the basis of the medical evidence and that the assumptions made by the medical experts had to be correct. The respondent cites Paric v John Holland Constructions Pty Ltd[35] as authority for that proposition.
[35] [1984] NSWLR 505 (Paric).
The respondent disputes that the Member was required to consider an alternative mechanism and submits that the Member’s task was to consider what actually caused the right shoulder condition, not what could have caused it. The respondent submits that the Member found that the appellant had failed to discharge his onus of proof. He asserts that this ground of appeal should fail.

As to Ground Two

The appellant’s submissions

The appellant asserts that the Member was “selective” in referring to the evidence and disregarded Dr Masterson’s clinical notes which documented the onset of right shoulder symptoms in 2020. The appellant points to the clinical entries on:
(a)    8 September 2020, when Dr Masterson recorded the history of onset of right shoulder symptoms, which the appellant attributed to the activity of shaving his head;
(b)    26 September 2020, when Dr Masterson noted that the appellant complained of right shoulder pain which may have been as a result of overuse, and
(c)    30 September 2020, when Dr Masterson recorded ongoing right shoulder pain in the context of the appellant compensating by using his right arm due to left shoulder pain.
The appellant submits that those entries show that the appellant was experiencing right shoulder symptoms 11 weeks after the 2020 injury and that was the first report of symptoms made in 2020. The appellant contends that the Member failed to ask himself what would have caused the appellant to have presented for treatment in September 2020. The appellant says that the Member failed to turn his mind to that question and failed to acknowledge that evidence, which he was required to consider in order to determine the issue.
The appellant asserts that the Member failed to refer to, and take into account, Dr Masterson’s clinical notes recorded after April 2020 and only considered the entries prior to that date as “salient.” The appellant describes the Member’s references to the evidence as “selective” and the Member did not consider the entries after that date as “salient,” thus disregarding evidence that was relevant to his determination.
The appellant submits that the Member was critical of the histories recorded by Dr Gupta and Dr Bodel, without the Member having documented a proper history, including the clinical entries made in September 2020. The appellant contends that the report of Dr Gupta dated 14 August 2020 and the clinical notes recorded by Dr Masterson in September 2020 establish a proper foundation for the Member to conclude that the appellant placed increased reliance on his right arm to compensate for his left arm injury, and their opinions as to the cause of the right shoulder symptoms ought to be accepted.
The appellant submits that, if the Member was “set upon” rejecting the appellant’s case, he was required to acknowledge that contemporaneous evidence and provide an explanation as to whether he accepted the reliability of that evidence and the cause of the symptoms. The appellant submits that the Member failed to address that material issue.
The appellant describes the Member’s decision as “misconceived” because he focused on the symptoms experienced prior to the injury. The appellant says that he does not suggest that he had no prior problems with both shoulders and submits that his case was that he suffered an aggravation of the underlying condition, as opined by Dr Bodel.
The appellant asserts that the Member did not give consideration to whether the appellant had suffered an aggravation of the underlying condition, which explains why the Member ignored the evidence of Dr Masterson and Dr Gupta of the onset of increased symptoms. The appellant contends that the Member misdirected himself and that has resulted in the determination being erroneous.

The respondent’s submissions

The respondent takes issue with the appellant’s choice of words such as “selective,” “set upon” and “ignore.” The respondent says if they are intended to be criticisms of the Member’s independence, they are not relevant to any ground of appeal.
The respondent contends that the Member did not ignore or overlook any relevant evidence. The respondent points to the Member’s summary of the clinical notes, which the Member said were “salient” to his decision. The respondent submits that the issue which needed to be resolved was whether the medical experts relied upon an adequate history and was not dependent upon the acceptance or otherwise of any particular clinical note, the nature of the symptoms or the frequency of consultations. The respondent contends that the clinical notes referred to by the Member established that the histories relied upon in the reports of Dr Masterson, Dr Gupta and Dr Bodel were incorrect. The respondent says that this was sufficient for the Member to afford those expert opinions little weight. The respondent indicates that it does not appear that the Member specifically rejected the evidence of Dr Masterson.
The respondent submits that this ground of appeal should be dismissed.

As to Ground Three

The appellant’s submissions

The appellant submits that the Member did not refer to Dr Gupta’s report dated 14 August 2020. The appellant points out that that report recorded the history taken by Dr Gupta that the appellant developed acute right shoulder symptoms as a result of overuse. The respondent submits that the report was material evidence in respect of the issue requiring determination, and should have been acknowledged, rather than ignored.

The appellant quotes from and relies upon the following authorities:
(a)    Beale v GIO (NSW), which established that ignoring relevant material in a way that affects the exercise of power equates to an error of law;[36]
(b)    Whiteley Muir & Zwanenberg Ltd v Kerr, which set out the principles applicable to disturbing a decision of a primary decision-maker,[37] and
(c)    Craig v The State of South Australia,[38] and Minister for Immigration and Multicultural Affairs v Yusuf,[39] in which the High Court again observed that if a primary decision-maker ignored relevant material, that constituted an error of law.
[36] (1997) 48 NSWLR 430 (Beale), 442–444.
[37] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[38] [1995] HCA 58 (Craig), [14].
[39] [2001] HCA 30 (Yusuf), [82].

The respondent’s submissions

The respondent disputes that the Member failed to refer to the report of Dr Gupta and points to the transcript of the Member’s reasons, where the Member discussed and quoted from Dr Gupta’s report dated 14 August 2020, which, the respondent says, sufficiently set out Dr Gupta’s opinion.
The respondent submits that the appellant has turned his focus away from the relevant issue, which is whether Dr Gupta had an adequate history in respect of the appellant’s pre-existing shoulder condition. The respondent says that the Member considered that Dr Gupta did not record an accurate history and submits that the period of time between the left shoulder injury and the development of right shoulder symptoms was not relevant to that determination. The respondent adds that, in accordance with the authority of Stead v State Government Insurance Commission,[40] even if the Member fell into such error, the error would not have a material bearing on the Member’s decision and would make no difference to the outcome.

As to Ground Four

[40] [1986] HCA 54.

The appellant’s submissions

The appellant submits that there was no medical opinion to support the Member’s determination that the appellant did not suffer from a consequential condition of his right shoulder as a result of the left shoulder injury. The appellant notes that the Member referred to the report of Dr Rimmer dated 20 January 2020 but did not refer to Dr Rimmer’s opinion when delivering his reasons for his decision and the Member did not rely on Dr Rimmer’s opinion. The appellant submits that the Member thus did not consider that Dr Rimmer’s opinion should be afforded greater weight than the opinions of Dr Gupta and Dr Bodel, or Dr Masterson’s clinical notes. The appellant asserts that, while Dr Gupta and Dr Bodel accepted that the appellant relied more heavily on his right arm, which caused symptoms in his right shoulder, and Dr Masterson provided a consistent explanation for the pain, Dr Rimmer did not address the issue at all.
The appellant reiterates that the fact that he experienced right shoulder symptoms prior to the 2020 injury was not relevant to a consideration of whether those symptoms were aggravated as a consequence of overuse of the right arm after the 2020 injury.
The appellant submits that it follows that the Member failed to engage in a proper evaluation of the evidence in relation to the reason for the appellant suffering an increase in right shoulder symptoms in August and September 2020. Further, the appellant asserts that there was no cogent medical basis upon which to conclude that the appellant did not suffer from an aggravation of his right shoulder condition as a result of overuse.

The respondent’s submissions

The respondent submits that the Member was not required to find an alternative mechanism of injury, or to have positive evidence that the right shoulder condition was not caused by the left shoulder injury. The respondent says that, in circumstances where the appellant had failed to discharge his onus of proof, the acceptance or rejection of Dr Rimmer’s opinion was irrelevant and had no effect on the outcome of the Member’s decision.

As to Grounds Five and Six

The appellant’s submissions

The appellant submits that, once the Member’s erroneous findings are corrected, the evidence supports a finding that the surgery proposed by Dr Gupta is reasonably necessary (Ground Five) and there should be an order that the respondent pay the costs of and incidental to the surgery proposed by Dr Gupta (Ground Six).

The respondent’s submissions

The respondent asserts that the appellant makes no submissions in support of these grounds, which are “merely conclusionary.”

THE RELIEF SOUGHT

The appellant seeks the following relief:
(a) a finding that the appellant developed a consequential condition affecting his right shoulder as a result of his left shoulder injury;
(b) a finding that the right shoulder surgery proposed by Dr Gupta is reasonably necessary as a result of the injury to the appellant's left shoulder on 23 June 2020, and
(c) an order pursuant to section 60 of the 1987 Act that the respondent pay the costs of and incidental to the surgery proposed by Dr Gupta.
The respondent points to the Member’s Certificate of Determination and submits that, in addition to the award for the respondent in respect of injury to the right shoulder, there should be an award for the respondent in respect of the allegation of right shoulder condition consequent upon the left shoulder injury. The respondent indicates that, if a Notice of Contention is required, one can be filed promptly, but describes that the absence of a finding recorded in the Certificate of Determination in respect of the consequential condition as a “slip” which ought the be corrected by the Member.
The respondent submits that the appeal should be dismissed.

CONSIDERATION

Sections 352(1) and (5) of the 1998 Act provide for an appeal from a decision of a Member on the basis of error of fact, law or discretion. The determination made by the Member was a factual determination. In Whiteley Muir, Barwick CJ identified the principles applicable to disturbing a factual decision made by a primary decision-maker. Those principles were summarised by Roche DP in Raulston v Toll Pty Ltd[41] as:
“...
(a)     A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.”[42]
[41] [2011] NSWWCCPD 25 (Raulston).
[42] Raulston, [19]–[20].
The Court of Appeal in Heggie considered the above principles in the context of the former Workers Compensation Commission’s powers on appeal. The Personal Injury Commission’s powers on appeal are identical to those of the former Commission. Sackville AJA said as follows (citation omitted):
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.”[43]
[43] Heggie, per Sackville AJA, [72].
In order for the appellant to succeed in this appeal, he is therefore required to establish one or more of the errors identified in the above authorities.

Ground One: The Member failed to find that the evidence established that, following the accident on 23 June 2020, the appellant experienced the onset of significant and increased right shoulder symptoms, consistent with increased use of that limb, and the development of a consequential condition

The appellant submits that the Member failed to acknowledge that prior to the 2020 injury, the symptoms in the right shoulder were “relatively benign” and “negligible” and did not require specialist or surgical intervention for over three and a half years.
I do not accept that the appellant’s symptoms could be so described. The medical evidence establishes that the appellant’s right shoulder symptoms were sufficient to warrant an MRI scan on 29 October 2016, an ultrasound guided injection on 25 May 2017 and again on 9 March 2018 and further radiological investigation in the form of an ultrasound on 28 February 2018. He received physiotherapy for at least six months. The appellant attended his general practitioner, Dr Masterson, on 31 January 2017, complaining of what Dr Masterson recorded as “chronic” bilateral shoulder injuries. He again attended Dr Masterson on 23 May 2017 in the context of improved left shoulder symptoms following an ultrasound guided injection but continuing right shoulder symptoms, resulting in the ultrasound guided injection into that shoulder on 25 May 2017. The appellant then consulted Dr Masterson on 20 October 2017, complaining of worsening right shoulder pain over the past few months. Dr Masterson reviewed the appellant in respect of right shoulder symptoms on 16 February 2018 and 6 August 2019.
The appellant consulted with Dr Bokor in October and November 2016. Relevantly, Dr Bokor reported that the MRI scans undertaken in October 2016 showed extensive pathology, and the symptoms in the right shoulder were negligible.
As the Member observed, the histories recorded in 2017 indicate that the appellant’s right shoulder symptoms became more prominent and troublesome during that time than the “negligible” symptoms recorded by Dr Bokor in 2016 and were the subject of medical review in 2018 and 2019. I do not accept that during the three and a half years prior to the 2020 injury, the right shoulder symptoms could be described as “benign” or “negligible”.
The appellant asserts that there was no other evidence-based proposition that would provide an alternate basis to explain the increase in the right shoulder condition at that time than that the right shoulder symptoms increased because of overuse. As the respondent submits, the onus rests upon the appellant to establish the case presented and it is not for the Member to identify some other known cause of the condition in circumstances where the medical opinion in favour of the case presented by the appellant is based on an inaccurate history.
The history ultimately recorded by Dr Gupta was that the appellant had no prior clinical concerns with his right shoulder, so that despite the significant pathology, it was reasonable to assume that the symptoms were attributable to the 2020 injury. That history was clearly incorrect.
Dr Bodel recorded the history that, following the 2016 injury, the appellant experienced minor discomfort, which settled within a very brief period. Later in his report, he recorded that, following the 2016 injury, the appellant was provided with three cortisone injections and completely recovered. There was no evidence from a treatment provider to support the history that the appellant had completely recovered from the prior right shoulder symptoms. In the appellant’s statement dated 13 December 2021, he stated that:
“I have previously experienced pain symptoms in my right shoulder however the pain in my right shoulder has never been of much concern and has been managed conservatively up until I sustained injury.”[44]
[44] ARD, pp 2–3, [14].
That statement evidence is not consistent with the history recorded by Dr Bodel that the appellant’s pre-existing right shoulder symptoms had “completely recovered” prior to the 2020 injury.
The appellant submits that the presence of pre-existing right shoulder pathology would not preclude an aggravation of that pathology from overuse of that arm because of the left shoulder injury. That is a common-sense proposition, however, the question to be determined is a question of causation which is dependent upon acceptable medical evidence supporting the causal connection.

I accept the respondent’s submission that the Member was not required to find another cause of the condition in order to reject the appellant’s case.
The respondent cites the Court of Appeal decision of Paric, in which Samuels JA explained that:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[45]
[45] Paric, 509–510.
The appellant did not respond to the respondent’s submission.
Paric was appealed to the High Court. In an unanimous judgment, the Court said (citations omitted):
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. … [I]t is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value”.[46]
[46] Niko Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 (Paric No 2).
In the context of the significant pre-existing pathology and the history of waxing and waning of right shoulder symptoms prior to 2020, the fact that the right shoulder symptoms worsened after the 2020 injury to the point where surgery was proposed is of itself insufficient to discharge the appellant’s onus. In accordance with Paric and Paric No 2, the proposition put forward by the appellant was dependent upon acceptable, evidence based medical opinion. As both Paric and Paric No 2 establish, it is for the tribunal of fact to assess whether the disparity between the history recorded and the proved facts is of significance.
The Member considered that the assumptions of both Dr Gupta and Dr Bodel were so inconsistent with the known facts that the opinions were not provided in a fair climate. On a proper reading of those opinions and consideration of the prior history, the Member’s conclusion was not only undoubtedly open to the Member but was correct.
The appellant describes his statement evidence as “uncontradicted.” While the appellant is entitled to give evidence of the facts, he is not a medical expert and cannot give evidence in relation to the causal link between his activities and causation of his symptoms. The Member made that observation. The appellant says that the explanation for the increase in right shoulder symptoms was “obvious.” In the circumstances where the radiological investigations pre-dating the 2020 injury disclosed significant shoulder pathology, and that pathology was rendered symptomatic (albeit at waxing and waning levels prior to the 2020 injury), the conclusion sought by the appellant is not so obvious, and absent adequate medical support, cannot be accepted.
The appellant asserts that the Member fell into error by failing to find that the evidence established that the onset of the appellant’s significant symptoms was consistent with increased use of the right arm and thus consequent upon the 2020 injury. The appellant has failed to show error on the part of the Member in rejecting the appellant’s evidence as to causation. This ground of appeal therefore fails.

Ground Two: The Member failed to have regard to materially relevant contemporaneous treatment records of the appellant’s General Practitioner, Dr Masterson, which documented the development of a consequential condition affecting the right shoulder

The appellant reiterates that the Member failed to ask himself what would have been the cause of the right shoulder symptoms recorded just 11 weeks after the 2020 injury. That assertion is dealt with under Ground One at [114] above. The Member did not have an obligation to determine another cause of the symptoms.
The appellant asserts that the Member disregarded the entries made by Dr Masterson in his clinical notes on 8 September 2020, 26 September 2020 and 30 September 2020, which was evidence that was relevant and ought to have been considered.
Dr Masterson did not provide an opinion as to whether the right shoulder symptoms were attributable to the 2020 injury, which was the issue the Member was required to determine. While the entry on 8 September 2020 was the first reference to right shoulder symptoms in that year, the history provided to the doctor was that the appellant attributed the onset to shaving his head with his right arm and said he felt a “click.” The Member adequately dealt with the notion that this event may have been evidence of the necessary causal connection. He said:
“There is an account by the [appellant] in his statement that his right shoulder symptoms deteriorated when shaving his head. He says that this was a task he would normally perform with both hands. The medical evidence, however, does not specifically address this incident. It does not address the mechanism of the incident and what, if any, pathology it may have caused and whether or not it is a factor that led to the [appellant’s] need for surgery. Indeed, I had difficulty understanding the mechanism of the event, although I am sure that it is capable of explanation. The [appellant] gives no other examples of tasks which he previously carried out with his left hand that he chose to perform with his dominant right hand after the work injury in 2020. It, therefore, cannot be inferred as a lay matter without guidance from the medical evidence … that the right shoulder condition results from the accepted injury to the left shoulder.”[47]
[47] Transcript of reasons dated 28 March 2022 (T), Scevola v Damstra Technology Pty Ltd (W6563/21, 30 March 2022), T 12.31–T13.15.
Dr Masterson’s entry recorded on 26 September 2020 noted:
“left shoulder pain ongoing
has been seeing physio
seeing dr manish gupta in 1 months
now has pain right shoulder - ?to compensate for overuse - will d/wdr manish gupta in 3 weeks”.[48]
[48] Respondent’s AALD dated 14 March 2022, p 13.
At best, this entry raised a query as to whether the onset may have been attributable to overuse.
The entry dated 30 September 2020 noted that:
“right shoulder pain ongoing
has been compensatorily using right arm due to left shoulder pain/dysfunction.”[49]
[49] Respondent’s AALD dated 14 March 2022, p 12.
This entry is supportive of the appellant having given the doctor a history of using his right arm more because of the left arm limitations. It does not go so far, however, as to attribute the overuse to the injury in 2020. There is no reference to how long the appellant may have been relying on the right arm more and no reference to this being a consequence of the 2020 injury, in addition to or rather than the pre-existing condition.
In the context of the appellant having significant pre-existing limitations in function of his left arm, recorded by Dr Masterson on 6 August 2019 (as the appellant submits) to be 30% of full function, and the ongoing active treatment to the left arm in 2019 and 2020, a satisfactory medical opinion as to the causal link to the 2020 injury was necessary. In the absence of acceptable opinion evidence, the entries are not of sufficient evidentiary value to assist the Member in resolving the issue of whether those doctors who did provide opinions did so on the basis of an adequate history.
Thus, in circumstances where the clinical entries were not of themselves conclusive, if the Member failed to take into account those clinical entries, such error could not have infected the Member’s ultimate conclusion. In order to disturb the Member’s determination, the error must be one upon which the decision depends.[50]
[50] Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, [110]; Walshe v Prest [2005] NSWCA 333, [27].
The appellant submits that the report of Dr Gupta dated 14 August 2020 and the clinical notes of Dr Masterson recorded in September 2020 were together sufficient to discharge his onus of proof. That submission ignores the fact that Dr Gupta’s opinion was based on an incorrect history and the clinical notes were of limited assistance.
The appellant also submits that the Member’s decision is misconceived because the Member focused on the appellant’s pre-existing symptoms. He asserts that he did not suggest that he had no prior problems. The question was not whether the appellant’s evidence disclosed the pre-existing problems but was whether the appellant provided to the medical experts, or the medical experts based their opinions on, a reasonably accurate history of those pre-existing problems.
The appellant further submits that the Member failed to give consideration to whether the appellant suffered an aggravation of an underlying condition and that the Member misdirected himself. Once again, in the absence of a medical opinion that was arrived at in a “fair climate,” there was no acceptable evidence to support any such allegation, so that the Member was unable to proceed to determine such an aggravation occurred.
The appellant’s submissions fail to disclose error on the part of the Member of the kind required to show that the Member ignored material evidence. This ground of appeal fails.

Ground Three: The Member failed to have regard to the materially relevant contemporaneous report of Dr Gupta dated 14 August 2020, which recorded that the appellant “recently has developed compensatory over use issues with the right shoulder”, and that “it was in fact the right shoulder that was more painful and weak”

The appellant relies on Beale, Craig and Yusuf which are authorities to say that if a primary decision-maker ignores relevant material, that constitutes an error of law. The appellant also cites Whiteley Muir, which sets out the principles applicable to disturbing the decision of a tribunal of fact. The appellant asserts that the Member did not refer to the report of Dr Gupta dated 14 August 2020.
The Member did not fail to have regard to or ignore the evidence of Dr Gupta. He referred to the respondent’s submission that Dr Gupta did not have a sufficiently accurate history upon which his opinion was based. The Member noted that the appellant consulted Dr Gupta on 14 August 2020 and again on 21 August 2020 [sic, 21 October 2020] and after a trial of conservative treatment Dr Gupta recommended surgery. He further noted that Dr Gupta appeared not to have the reports of Dr Bokor or the scans obtained in 2016 available to him and that the initial referral to Dr Gupta from Dr Masterson did not refer at all to the prior symptoms. The Member quoted from the report of Dr Gupta directed to the appellant’s legal representatives, in which Dr Gupta expressed his ultimate opinion that the appellant had told him that he had “no pre-existing clinical concerns with his shoulders and on that basis [my emphasis] it is reasonable to assume that the current clinical picture is related to the workplace incident.” The Member concluded that Dr Gupta did not have an adequate history of the state of the appellant’s shoulders between 2016 and 2019 and the inadequacy of the history undermined his opinion that the appellant’s shoulder symptoms were referrable to the 2020 injury.
It is abundantly clear that the Member reviewed the overall evidence of Dr Gupta in some detail and with accuracy, even though he did not specifically attribute the evidence to any particular report.
The appellant refers to the history provided to Dr Gupta by the appellant recorded in the report of 14 August 2020 that the appellant had “recently has developed compensatory overuse issues with the right shoulder” and that the right shoulder symptoms were worse than the left.
The appellant does not make any persuasive submission that the Member’s failure to refer to those matters impacts on the veracity of the Member’s findings that:
(a)    Dr Gupta was initially not aware of the appellant’s pre-existing symptoms;
(b)    following a review of the report of Dr Rimmer, Dr Gupta was clearly reliant upon the incorrect history that the appellant had no previous clinical concerns with his shoulders, and
(c)    the opinions expressed by Dr Gupta were based upon an incorrect history.
The Member was clearly aware of the time of the onset of right shoulder symptoms. The time of onset of the symptoms is not determinative of the causal connection.[51] Regardless of when the appellant complained of right shoulder symptoms, the rejection of Dr Gupta’s opinion as to the connection between the onset of those symptoms and the 2020 injury was reasonably open to the Member. This ground of appeal fails.

Ground Four: The Member reached a conclusion contrary to the preponderance of medical opinion, and unsupported by any medical evidence tendered by the respondent in relation to the issue of overuse

[51] State of New South Wales v Bishop [2014] NSWCA 354.

The appellant submits that there was no medical opinion to support the Member’s determination that the appellant did not suffer from a consequential condition of his right shoulder as a result of the left shoulder injury. That is undoubtedly correct, but the Member did not determine the matter on the basis of a competition between medical experts. He determined that there was an absence of acceptable medical opinion and thus the appellant had not made out his case. In circumstances where there was no acceptable opinion sufficient to prove the appellant’s case, it was not necessary for there to be medical opinion that contradicted the assertion put forward by the appellant that his right shoulder symptoms were a consequence of the 2020 injury.
The appellant asserts that the pre-existing symptoms were not relevant to a determination of whether he suffered an aggravation of the pre-existing condition. Again, the appellant misses the point. In this case, the presence of pre-existing symptoms was very relevant. The Member did not proceed to a determination that there was an aggravation because, in the absence of acceptable medical opinion, he determined that the appellant had not made out his case. Thus, Dr Bodel’s opinion that the pre-existing condition was aggravated was unacceptable.
The appellant submits that the Member failed to engage in a proper evaluation of the evidence. The Member’s reasons, summarised by me above, disclose that he engaged in an extensive evaluation of all of the medical evidence and provided sound reasons for rejecting that evidence.
The appellant has failed to identify “a preponderance” of acceptable evidence, or any acceptable medical evidence, that is persuasively in his favour. This ground of appeal fails.

Ground Five: The Member failed to find that the right shoulder surgery proposed by Dr Gupta was reasonably necessary as a result of the injury to the appellant’s left shoulder, and the development of a consequential condition affecting the left shoulder, and

Ground Six: The Member failed to order the respondent to pay for the costs of surgery proposed by Dr Gupta and associated treatment

Both Grounds Five and Six are dependent upon a finding that the Member erred in his determination that the appellant had not made out his case. There has been no error established and, as a consequence, these two grounds of appeal are unfounded and are dismissed.

CONCLUSION

In accordance with the principles enunciated in Whiteley Muir and Heggie, the appellant has not established error of the kind required and the appeal fails.
I note the respondent raises the point that the Member omitted to make a finding in the Certificate of Determination in respect of the allegation that the right shoulder symptoms were referrable to overuse of the right arm in order to protect the left shoulder. Having read the transcript of reasons, I consider that the omission is a matter to be raised with the Member for reconsideration.

DECISION

The Member’s Certificate of Determination dated 30 March 2022 is confirmed.

Elizabeth Wood
Deputy President

30 January 2023