Schembri v Blacktown City Council - [2020] NSWWCCPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Schembri v Blacktown City Council [2020] NSWWCCPD 35
APPELLANT:	Victoria Schembri
RESPONDENT:	Blacktown City Council
INSURER:	Self-insured
FILE NUMBER:	A1-3043/19
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	6 November 2019
DATE OF APPEAL DECISION:	9 June 2020
SUBJECT MATTER OF DECISION:	Consequential condition; whether the worker suffered a consequential condition of her right shoulder from favouring her injured left shoulder; consideration of competing medical evidence; adequacy of reasons
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Turner Freeman Lawyers
Respondent:
Mr W Murphy, solicitor
Bartier Perry
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 6 November 2019 is confirmed.

INTRODUCTION

The appellant, Ms Schembri, was employed as a cleaner by Blacktown City Council, the respondent. Her duties extended to cleaning office spaces, vacuuming large areas, cleaning windows, scrubbing toilets and emptying rubbish bins.[1]
[1] Schembri v Blacktown City Council [2019] NSWWCC 358 (Reasons), [1].
On 5 July 2005, she sustained injury to the left shoulder, neck and lumbar spine while scrubbing the disabled access ramp in the Council’s Rates Department.
In 2010, she received lump sum compensation in respect of 5% whole person impairment. This arose from the injury to the cervical spine.
The parties agreed that Ms Schembri had not suffered any additional impairment with respect to her cervical spine.[2]
[2] Reasons, [8].
At issue in the present matter was whether Ms Schembri has suffered a consequential condition to her right shoulder. If the issue were resolved in favour of the appellant, the right shoulder should would be remitted to the Registrar for referral to an Approved Medical Specialist for a further assessment of the permanent whole person impairment.
The appellant appeals from the Arbitrator’s determination that the right shoulder condition should not be remitted. The Arbitrator said she was not satisfied that the cause of the condition in Ms Schembri’s right shoulder was a consequence of the accepted left shoulder injury.[3]
[3] Reasons, [66].

BACKGROUND FACTS

The following background facts taken from the Arbitrator’s decision are undisputed.
The appellant claimed that she suffered a right carpal tunnel syndrome in 2002 and this claim was accepted but later disputed. Ms Schembri complained of symptoms on a continuing basis in both arms.[4] A carpal tunnel release procedure was performed in 2016.
[4] Reasons, [11].
Ms Schembri sustained an injury to the left shoulder, neck and back on 5 July 2005. The respondent accepted liability for this claim and paid compensation.
After leaving the employ of the Blacktown City Council, the appellant pursued a number of employments set out by the Arbitrator at [14] of her reasons. No reliance is placed on the work performed by the appellant in those employments. These employments were, with one immaterial exception (Code Blue Recruitment Pty Limited), casual light cleaning duties.
In 2007, the appellant’s General Practitioner, Dr S Martin, referred her to Dr Watson, neurologist. The referral letter noted “chronic neck and bilateral trapezial fold pain especially with extension of neck – work related.”[5]
[5] Reasons, [17].
On 24 February 2009, Dr Ellis, surgeon qualified by the appellant’s former solicitors, referring to the 2005 injury, said the appellant suffered neck pain spreading to her left shoulder. He also said: “Her right shoulder and arm are not affected otherwise. She is right handed.”[6]
[6] Reasons, [18].
On 2 June 2010, a Medical Assessment Certificate was issued by Approved Medical Specialist, Dr J M Harrison. This certificate was in connection with the 2005 injury. Dr Harrison diagnosed an injury to the neck, with referred pain, particularly into her left shoulder and around the scapula. Dr Harrison said that the injury was in the nature of an aggravation of underlying degenerative changes in the neck. He said the imaging confirmed that she had exacerbated pre-existing widespread degenerative changes in her neck. Dr Harrison noted the diagnosis of carpal tunnel syndrome. He considered that the left shoulder impairment was properly rated with the cervical spine impairment.[7]
[7] Reasons, [19]–[21].
There is no challenge to the Arbitrator’s summary of Ms Schembri’s activities concerning the right shoulder:
“15. Ms Schembri said that she has heavily relied on her right shoulder for day to day tasks as a result of her left shoulder injury. She said that she was lying primarily on her right shoulder in bed but now suffered increased pain. She said that she has trouble moving her neck when she drives and that her arms and shoulders are in pain from holding the steering wheel. In her days [sic] to day tasks, she relies on her right arm when washing and putting away dishes and repetitive scrubbing causes pain in her right shoulder which radiates to her elbow. She carries groceries in her right hand which has aggravated her right shoulder pain. She said that she had suffered pain in her right shoulder due to over reliance when sweeping, hanging ou[t] clothes and as a result of cooking tasks, including chopping and stirring. She has difficulty washing her hair because it involves lifting her arms above shoulder height.”
Ms Schembri consulted solicitors, who in turn referred her to Dr G Mendelsohn. Dr Mendelsohn’s first report is dated 3 April 2018.
The proceedings were commenced by an Application to Resolve Dispute (ARD) registered in the Commission on 21 June 2019. A Reply to the Application was received by the Commission on 12 July 2019.
A Certificate of Determination was issued by the Commission on 6 November 2019, with an attached Statement of Reasons.
The Application to Appeal Against Decision of the Arbitrator is dated 4 December 2019.
The respondent filed a Notice of Opposition to Appeal Against Decision of the Arbitrator dated 9 January 2020.

THE ARBITRATOR’S REASONS

The Arbitrator gave a direction that the ARD be amended by consent. The consequence of the amendments was that the issue for determination by the Arbitrator was whether:
“As a result of the injury to the left shoulder, the applicant developed a consequential condition in the right shoulder.”
The injury relevant to that determination occurred on 5 July 2005 when Ms Schembri was employed by the Blacktown Council as a cleaner. The injury occurred “while scrubbing the disabled access ramp in the Council’s Rates Department.”
Of historical relevance was an earlier claim for carpal tunnel syndrome. In 2002 Ms Schembri made a claim for right carpal tunnel syndrome. The claim was initially accepted by a letter dated 22 August 2017 but was later disputed pursuant to notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 28 September 2018. A right carpal tunnel release procedure was undertaken in 2016. Ms Schembri continued to complain of symptoms affecting both arms. The Arbitrator considered the medical evidence concerning the carpal tunnels where that evidence touched on the complaints with respect to the shoulders. She adopted the same approach with respect to evidence relating to the complaint of low back pain.
From the statements provided by Ms Schembri, the Arbitrator described the activities impacting on the right shoulder. (Quoted at paragraph [14] above.)
The Arbitrator summarised the medical evidence, omitting reference to the carpal tunnel syndrome and low back evidence, except where that evidence touched upon the complaints with respect to the shoulders. It is unnecessary to set out in detail that summary, the ultimate contest in the matter was between the opinions of Dr Mendelsohn that in favouring the left shoulder Ms Schembri had over-relied on her right shoulder resulting in a consequential injury to that shoulder; and Dr Powell (orthopaedic surgeon qualified by the respondent) who did not agree that Ms Schembri had suffered a consequential injury of the right shoulder.
The critical evidence from Dr Mendelsohn is dealt with at paragraphs [22]–[30] of the Reasons.
Dr Mendelsohn recorded that Ms Schembri had trouble sleeping because of neck and back pain. She had pain over the left and right sides of her neck, with the right side worse than the left. She had left shoulder problems but her right side was sorer than the left. He set out the tasks Ms Schembri said she found difficult. The Arbitrator said Dr Mendelsohn did not explain which part of her body was affected, by performance of those tasks. He did say that she gets stiff in her shoulders, neck and back after driving for 30 minutes.[8]
[8] Reasons, [23].
The Arbitrator regarded Dr Mendelsohn’s supplementary report dated 23 November 2018 as important. She said:
“27. Dr Mendelsohn prepared a supplementary report dated 23 November 2018. He was specifically asked to outline the activities ‘which our client performed in using the right shoulder which materially resulted in the development of this condition.’ He said:
‘I obtained a history of a direct injury in the Incident in July 2005 but certainly the nature and conditions of her work have therefore aggravated the situation. As I have already stated, I believe that the favouring of her left shoulder leading to over reliance of use of her right shoulder has been a consequential injury to that right shoulder injury.
The activities she performed using her right shoulder being the normal course of her work and home duties but the over reliance on that side has been basically doubling wear and tear on her right shoulder as a consequence of favouring the left side.’”
Referring to the report of 27 May 2019, the Arbitrator said that Dr Mendelsohn recorded that Ms Schembri continued to have pain in the neck, back and both shoulders, the right being worse than the left. “He obtained a history of the household tasks which she finds difficult, including that she carries only light shopping in her right hand. He noted that she is right handed.”[9]
[9] Reasons, [28].
After referring to Dr Mendelsohn’s conclusion that Ms Schembri’s employment after leaving the employ of Blacktown City Council produced a “temporary increase in her symptoms”, the Arbitrator said:
“His diagnosis was ‘rotator cuff injury and capsulitis of the left shoulder and because of over-reliance on the other shoulder has consequently developed problems with capsulitis in the right shoulder.’”[10]
[10] Reasons, [30].
The Arbitrator similarly summarised the report evidence of Dr Powell. She noted Dr Powell’s history from Ms Schembri was that she “had been aware of gradual onset of neck and left shoulder pain over a period of several months. In July 2005, she turned quickly, developing neck pain radiating down her left arm. She was off work for one week before returning to work on light duties. She continued to work until 2009.”[11]
[11] Reasons, [31].
At paragraph [34] of the Reasons, the Arbitrator referred to Dr Powell’s observation that there was “no history of an injury involving her shoulders” and to his conclusion that the upper limb symptoms were “non-verifiable radiological symptoms from her cervical spine”.
The Arbitrator quoted the following passage from Dr Powell’s report dated 22 July 2018:
“The first investigation of the left shoulder I am aware of was an MRI scan performed in 2017, almost 10 years after Ms Schembri worked at the Council. This was dated 26 October 2017 and demonstrated some minor AC joint degeneration, subacromial bursitis and a low grade partial thickness bursal surface tear of supraspinatus.
In relation to the right shoulder, Ms Schembri indicated symptoms developed in a gradual fashion over the past few years without any specific precipitating incident and have slowly worsened. She indicated she has discussed this with her local doctor and had a recent investigation, though this was not available for review and no reports were provided.”
Dr Powell’s report dated 18 September 2018 was prepared as a response to Dr Mendelsohn’s opinion that Ms Schembri suffered her right shoulder condition as a result of the left arm injury. The Arbitrator quoted from the report:
“I do not agree that Ms Schembri has suffered a ‘consequential injury’. The compensated left shoulder injury essentially represents referred pain from the cervical spine condition. There is no evidence that she suffered a specific injury to the left shoulder, nor that there is any significant structural pathology within the left shoulder. There is no history of any specific injury to the right shoulder and any increase in load placed on the right shoulder on account of left shoulder symptoms would have been well within the physiological capabilities of a normal shoulder. The presence of degeneration within the rotator cuff with advancing age is a well documented phenomenon and there is no evidence that any right shoulder symptoms fall outside the expected presentation of age related or constitutional degenerative changes.”
The Arbitrator had to determine which of the two competing opinions on causation was to be preferred. She was unconvinced by the explanation given by Dr Mendelsohn, preferring Dr Powell’s view that the symptoms in the right shoulder were sufficiently explained by “the presence of degeneration within the rotator cuff [consistent] with advancing age … [and the absence of ] evidence that any right shoulder symptoms [fell] outside the expected presentation of age related or constitutional degenerative changes.”[12]
[12] Reasons, [37].
The dispositive findings are succinctly stated in the following paragraphs:
“62.   Ms Schembri relied on the evidence of Dr Mendelsohn but his evidence with respect to the causation of the right shoulder condition is limited. He said that she had right shoulder problems as a result of reliance on the right shoulder rather than the left. Somewhat inconsistently, he said that Ms Schembri was relying on her right side because of ongoing problems with her left hand. His discussion of the impact of the injuries on Ms Schembri’s activities of daily living was general.
63.    When specifically asked to outline the relevant activities which contributed to the development of the right shoulder condition, Dr Mendelsohn’s response was general and he did not outline any tasks other than to say that her work and home tasks had doubled the wear and tear on her right shoulder.
64.    In his final report, Dr Mendelsohn said that the causation of capsulitis in the right shoulder was a result of over-reliance. Though he repeated that conclusion in later reports, he did not disclose his reasoning process and his opinion with respect to the causation of the right shoulder condition is a ‘bare ipse dixit.’
65.    Dr Powell, on the other hand, did disclose his reasoning process by reference to the radiological studies of Ms Schembri’s cervical spine. His opinion that the pain in her shoulders is a result of degenerative changes observed on the investigations of her cervical spine. That opinion is consistent with that of the AMS, Dr Harrison in 2010. Dr Powell considered Ms Schembri suffered age related capsulitis in both shoulders. He considered that the tasks about which Ms Schembri complained would not have been within the physiological capacity of a normal shoulder. [As written. The inclusion of the word “not” is obviously unintended, see [119] below.]
66.    I am not satisfied that the cause of the condition in Ms Schembri’s right shoulder is a consequence of the accepted left shoulder injury.”

CERTIFICATE OF DETERMINATION

The Certificate of Determination is dated 6 November 2019. It records:
“1.     I note the agreement of the parties that Ms Schembri suffers 5% permanent impairment as a result of the injury to her cervical spine.
2.      I remit the matter to the Registrar for referral to an Approved Medical Specialist to assess the applicant’s permanent impairment as a result of:
(a)Injury to the lumbar spine, and
(b)Injury to the left upper extremity (shoulder).
3.      The agreed impairment in respect of the cervical spine should be combined with any assessments made as a result of order 2.
4.      All of the material in the Commission’s file should be sent to the Approved Medical Specialist, including a copy of the direction dated 4 September 2019 and these reasons.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
The parties are in agreement that an oral hearing is not required and that the matter can be determined on the papers.
I am satisfied, having regard to Practice Directions Numbers 1 and 6, the documents before me and the submissions by the parties that the appeal can proceed to be determined on the basis of the documents, that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and this is an appropriate course in the circumstances.

THRESHOLD MATTERS

The respondent accepts that the threshold requirements as to quantum and time pursuant to s 352(3) and s 352(4) of the 1998 Act have been met.

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

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”
It is important in this matter that the extent of the jurisdiction available to me is properly understood.
The respondent in its submissions quotes from Raulston v Toll Pty Limited[13] to the effect that findings of fact may only be disturbed by a Presidential Member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”. A similar principle is applicable where an arbitrator draws inferences from established facts. It is not enough to establish that a Presidential Member may have drawn a different inference if the inference drawn by the Arbitrator was available.
[13] [2011] NSWWCCPD 25.
In my view, the limits on the presidential jurisdiction under s 352(5) need to be borne in mind in considering the present appeal.

GROUNDS OF APPEAL

The appellant has identified twelve grounds of appeal which I will deal with seriatim. Those grounds are:
(a)    Ground 1 – An error of mixed fact and law in that the Arbitrator inferred that, because, the appellant’s right shoulder symptoms could have multiple causes, such multiplicity would serve to exclude the contribution made by over reliance;
(b)    Ground 2 – An error of mixed fact and law in that the Arbitrator overlooked the fact that the appellant’s evidence that she placed greater reliance on her right shoulder was not challenged and was not implausible;
(c)    Ground 3 – An error of mixed fact and law in that the Arbitrator erroneously criticised (without expressly rejecting) the probative, unchallenged and plausible evidence of the appellant as “general”, in circumstances in which that evidence provided a proper foundation for a finding that she did place a greater load on her right shoulder;
(d)    Ground 4 – An error of mixed fact and law in that the Arbitrator erroneously stated that the appellant did not identify when she first suffered problems with her right shoulder, and proceeded to criticise the appellant pursuant to that erroneous and in any event immaterial feature;
(e)    Ground 5 – An error of mixed fact and law in that the Arbitrator considered that because the appellant is right handed, she would not have over relied on that limb (reasoning that would mean that a consequential condition can only develop in a non-dominant limb);
(f)    Ground 6 – An error of mixed fact and law in that the Arbitrator failed to make a specific finding as to whether the appellant did place greater reliance on her right shoulder. Having omitted to make a finding with regard to that link in the causal chain, the ultimate determination lacked a proper substantive foundation and was accordingly flawed;
(g)    Ground 7 – An error of mixed fact and law in that the Arbitrator erroneously criticised Dr Mendelsohn’s record of the evidence of over reliance as limited, whereas the simple fact that the appellant placed greater reliance on her right shoulder is unchallenged, and would follow as a matter of common sense;
(h)    Ground 8 – An error of mixed fact and law in that the Arbitrator erroneously criticised Dr Mendelsohn’s “response” as “general”, whereas his opinion was founded upon assumed facts that were established on the evidence and involved a logical explanation of the relationship between the appellant’s right shoulder symptoms and the injured left shoulder;
(i)    Ground 9 – An error of mixed fact and law in that the Arbitrator erroneously stated that Dr Mendelsohn did not disclose his reasoning process, notwithstanding that the reasoning process was straightforward, evidence based, logical and readily discernible;
(j)    Ground 10 – An error of mixed fact and law in that the Arbitrator accepted Dr Powell’s opinion, notwithstanding that Dr Powell took no history of over reliance and that the Arbitrator herself had not made a finding that the appellant had not placed greater reliance on her right shoulder;
(k)    Ground 11 – An error of mixed fact and law in that the Arbitrator failed to provide proper reasons for preferring the opinion of Dr Powell (who took no history from the appellant regarding over reliance on her right shoulder) to the opinion of Dr Mendelsohn (who did take a relevant history, and who did provide a logical explanation for his conclusions based upon a proper and unchallenged history), and
(l)    Ground 12 – An error of mixed fact and law in that in all the circumstances the Arbitrator failed to provide proper reasons for her determination

The appellant and the respondent have each filed helpful submissions. I intend no discourtesy to the parties by not setting them out in full.

Ground 1 – An error of mixed fact and law in that the Arbitrator inferred that, because, the appellant’s right shoulder symptoms could have multiple causes, such multiplicity would serve to exclude the contribution made by over reliance

The appellant’s complaint relates to the finding at [54] of the Reasons. The appellant submits that the finding “displays a fundamental misdirection and error”.
The appellant submits that the possibility of multiple causes in addition to “over reliance” for the appellant’s right shoulder condition, “cannot exclude the proposition that over reliance made a material contribution to that condition. It is erroneous to treat ‘a number of possible causes’ as mutually exclusive competitors.”[14]
[14] Appellant’s submissions, [42]–[43].
The proposition that several causes may have acted and are not mutually exclusive competitors may be accepted. The Arbitrator did not in my view proceed on that basis.
The respondent provides a detailed analysis of the Arbitrator’s reasoning, concluding that:
“19. The potential ‘multiple causes’ of the Appellant’s right shoulder symptoms were only one matter taken into consideration by the Arbitrator in concluding that she was not satisfied, on the balance of probabilities, and did not feel an actual persuasion that the Appellant suffered consequential right shoulder injury.”
The passage at [54] of the Reasons was by way of an introductory paragraph prefatory to the Arbitrator’s conclusion that “Ms Schembri’s statement and the evidence of Dr Mendelsohn do not allow me to draw the conclusion that her right shoulder condition is a result of her left shoulder injury.”
The Arbitrator went through, in detail, the statement evidence of Ms Schembri;[15] she identified, at [59]–[60] of the Reasons, the relevant degree of persuasion required to prove the appellant’s case and explained why she preferred the opinion of Dr Powell to that of Dr Mendelsohn.
[15] Reasons, [55], [59].
The appellant’s complaint, in my view, does not recognise the careful analysis by the Arbitrator of the evidence of Dr Mendelsohn and Dr Powell.
The activities described by Dr Mendelsohn as provocative are set out at [27]–[29] of the Reasons. The only activity he specifically identifies is that of carrying light shopping in the right hand, otherwise he said, in the passage quoted by the Arbitrator:
“The activities she performed using her right shoulder being the normal course of her work and home duties but the over reliance on that side has been basically doubling wear and tear on her right shoulder as a consequence of favouring the left side.”
Dr Mendelsohn considered the duties performed in the other employments pursued by the appellant after leaving Blacktown City Council. He said they were much lighter involving light dust mopping, light dusting and wiping down surfaces, cleaning glasses and similar activities. He did not regard those activities as causative of the appellant’s right shoulder condition.
The difficulty is that Dr Mendelsohn does not identify precisely what activities Ms Schembri performed with the right shoulder that led to the symptoms in the shoulder. It is difficult to see how the activities involved in cleaning and the subsequent light duty work assessed by Dr Mendelsohn as resulting in only temporary symptom increase could be less provocative than the household activities.
There was evidence that for a considerable period after the injury in July 2005, the appellant made no complaint about the condition of her right shoulder. Dr Ellis’ report of 24 February 2009 was to the effect that the appellant did not have any right shoulder or arm affect at that time. The report of Dr Harrison, quoted by the Arbitrator at [19] and [20] of her Reasons, was that the injury was to the neck with referred pain to the left shoulder and around the scapula. Thus, the medical history proximate to the original incident excluded any affectation of the right shoulder and confirmed that the injury was to the neck with pain referred to the left shoulder and scapula.
There is furthermore no explanation as to the mechanism by which the affectation to the right shoulder is said to have occurred. The Commission is not bound to apply the Evidence Act1995 but it is required to determine the matter according to the “substantial merits”.[16]
[16] Section 354(2) of the 1998 Act.
Dr Mendelsohn’s reports did not have to satisfy the requirements of s 79 of the Evidence Act but they did have to explain how the doctor reasoned from the overuse of the right arm to the painful condition of the right shoulder.
The Arbitrator quoted from South Western Sydney Area Health Service v Edmonds[17] at paragraph [61] of the Reasons. The passages quoted by the Arbitrator show that Dr Mendelsohn’s reports, if they were to be of probative value, had to be “logical and probative” and that “unqualified opinions” are not acceptable.
[17] [2007] NSWCA 16 (Edmonds), [130]–[132].
Dr Mendelsohn’s opinion quoted by the Arbitrator (referred to above at paragraph [27]) was rejected because it “did not disclose his reasoning process and his opinion with respect to the causation of the right shoulder condition [was] a ‘bare ipse dixit’”.[18]
[18] Reasons, [64].
The Arbitrator was guided by the decision of Edmonds. In my view she applied the correct principle for evaluating the report. The report was deficient in its failure to explicate the reasoning process and the Arbitrator was correct to conclude that the opinion was of no probative value to the causation issue before her.
The problem with Dr Mendelsohn’s opinion is not cured by the appellant’s assertion that Dr Powell’s history was inadequate or by the further assertion that Dr Powell did not consider the causal issue when taking a history of that gradual onset of symptoms.[19] This is because Dr Mendelsohn’s opinion was rejected on its own terms.
[19] Appellant’s submissions, [13].
The appellant failed before the Arbitrator because the Arbitrator was not satisfied that she was “persuaded” by Dr Mendelsohn’s report(s).
The Arbitrator was satisfied that Dr Powell had disclosed the reasoning process for his opinion by reference to the radiological studies of Ms Schembri’s cervical spine. The Arbitrator set Dr Powell’s opinion out at [36]–[37] of the Reasons. Dr Powell’s opinion to the effect that the painful right shoulder was due to referred pain from the neck rather than intrinsic pathology relating to a specific incident, was also the opinion of Dr Ellis and Dr Harrison. The Arbitrator made that point at [18]–[20] of the Reasons.
The appellant has failed to demonstrate that the Arbitrator was in error in her conclusion that she was not persuaded by Dr Mendelsohn’s opinion as to causation.
Ground 1 of the appeal is dismissed.

Ground 2 – An error of mixed fact and law in that the Arbitrator overlooked the fact that the appellant’s evidence that she placed greater reliance on her right shoulder was not challenged and was not implausible

At [66] of her Reasons, the Arbitrator said that she was “not satisfied that the cause of the condition in [the appellant’s] right shoulder is a consequence of the accepted left shoulder injury.”
The appellant’s submission that the evidence of overuse of her right shoulder was not rejected as unreliable or implausible is correct but of no importance.
The respondent’s submission at [22]–[23] sets out at length the detailed attention given to the evidence by the Arbitrator, concluding correctly at [24]:
“It is clear the Arbitrator considered, in detail, the Appellant’s evidence. She was not satisfied that evidence, and the other matters outlined in relation to ground of appeal 1 and 2, satisfied her that the Appellant suffered a consequential right shoulder injury.”
The proposition advanced by the appellant that the Arbitrator’s reasoning was deficient because she allegedly overlooked the appellant’s evidence of greater reliance on the right shoulder is incorrect.
At [15] of the Reasons, the Arbitrator records Ms Schembri’s evidence that “she has heavily relied on her right shoulder for day to day tasks as a result of her left shoulder injury”. The Arbitrator records Dr Mendelsohn’s findings on examination of “worsening problems, especially in the right shoulder” at [24] of the Reasons and Dr Mendelsohn’s conclusion at [27] of the Reasons that in favouring the left shoulder, the appellant over relied on use of the right shoulder.
Acceptance of the proposition that the appellant had pain in the right shoulder and furthermore that the appellant herself believed that that was attributable to over reliance on the right shoulder as a consequence of the injury to the left shoulder, does not establish causation with respect to the right shoulder.
The passage from Kooragang Cement Pty Limited v Bates[20] as quoted by the Arbitrator[21] includes the following:
“By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
[20] (1994) 35 NSWLR 452 (Kooragang).
[21] Reasons, [52].
The appellant failed not because the Arbitrator did not accept that she had pain in the shoulder, but because the Arbitrator was not satisfied with the medical explanation provided by Dr Mendelsohn for that right shoulder pain.
In my view, the Arbitrator took adequate account of the appellant’s evidence. No error is demonstrated. Ground 2 of the appeal is rejected.

Ground 3 – An error of mixed fact and law in that the Arbitrator erroneously criticised (without expressly rejecting) the probative, unchallenged and plausible evidence of the appellant as “general”, in circumstances in which that evidence provided a proper foundation for a finding that she did place a greater load on her right shoulder

This ground of appeal tends to overlap with the substance of the matters considered in Grounds 1 and 2. The reasons for rejecting those Grounds of Appeal are therefore relevant to the present Ground of Appeal (see in particular the discussion with respect to Ground 2).
The Arbitrator accepted the appellant’s evidence. Her conclusion that the evidence was “general” was not in my view a criticism of the evidence. The appellant’s lay evidence of itself could not establish that the pain in the right shoulder was caused by placing a greater load on that shoulder. To succeed, the appellant had to show that the pain in the right shoulder resulted from the injury sustained in July of 2005. To sustain that proposition, the appellant needed to establish from the lay and expert evidence that the 2005 injury resulted in the right shoulder pain.
The appellant could not do that unless the evidence of Dr Mendelsohn was accepted. The Arbitrator did not accept the opinion evidence of Dr Mendelsohn, not because the underlying factual assumption(s) accepted by Dr Mendelsohn was not made out, but because she did not regard the reasoning process with respect to causation as disclosed in the reports as adequate.[22]
[22] Reasons, [63]–[64].
A finding to the effect contended for by the appellant was in any event irrelevant to the Arbitrator’s reasoning.
The activity described and accepted by Dr Mendelsohn in his reports was the evidence most favourable to the appellant’s case. Dr Mendelsohn was satisfied that those activities were sufficient to cause the right shoulder pain. Accordingly, a finding by the Arbitrator that the appellant placed a greater load on her right shoulder would have made no difference to the opinion most favourable to the appellant.
It follows that the finding contended for, even if made, would not have affected the outcome.
I am not suggesting that the Arbitrator should have made the finding contended for in this ground of appeal.
Ground 3 of the appeal fails.

Ground 4 – An error of mixed fact and law in that the Arbitrator erroneously stated that the appellant did not identify when she first suffered problems with her right shoulder, and proceeded to criticise the appellant pursuant to that erroneous and in any event immaterial feature

The appellant submits that the Arbitrator criticised the appellant’s case on the basis that the appellant did not identify when she first suffered problems with her right shoulder.[23] It is submitted that the identification of when the appellant first suffered problems with her right shoulder is of no material relevance.
[23] Appellant’s submissions, [47].
There is a difficulty with the logic of this ground of appeal because if the time at which Ms Schembri developed pain in the right shoulder is immaterial, then the fact that the Arbitrator noted that Ms Schembri did not identify when she first suffered problems in the right shoulder is also immaterial.
Ms Schembri did not give evidence in the statement of 4 June 2019 as to when she first suffered right shoulder pain.
The Arbitrator expressed no view as to the significance or otherwise of this. The observation, in my view, was merely a statement of a background fact.
I do not see that the Arbitrator placed any great reliance on when the symptoms in the right shoulder commenced.
I agree with the respondent’s submission at [34] that the Arbitrator did not “‘criticise the appellant’ for not identifying when she first suffered right shoulder symptoms”.
What was significant to the Arbitrator was the absence of complaint of any effect on the right shoulder and/or arm when examined by Dr Ellis for the report of 24 February 2009. It was also significant that Dr Harrison obtained a history of “burning and discomfort radiating from the base of the neck into both shoulders, particularly on the left.” The Arbitrator noted that the appellant’s principal complaints when examined by Dr Harrison were neck pain, left shoulder pain and the noises she heard in her neck.[24]
[24] Reasons, [19].
The significance of those matters was doubtless to give support to the opinion of Dr Powell as recorded by the Arbitrator at [36] of the Reasons that “it is more likely that her radiating bilateral upper limb and shoulder symptoms represent referred pain rather than intrinsic pathology relating to a specific incident.”
In my view, the absence of a finding admitted by the appellant to be “immaterial” even if made out could not ground a successful appeal.
I dismiss Ground 4 of the appeal.

Ground 5 – An error of mixed fact and law in that the Arbitrator considered that because the appellant is right handed, she would not have over relied on that limb (reasoning that would mean that a consequential condition can only develop in a non-dominant limb)

The appellant’s submission at [51] that the Arbitrator’s Reasons at [56]–[58] reveal that she was reluctant to accept that the appellant placed greater reliance on her right upper limb is, with respect, to overstate the matter.
The statement that the appellant “is also right handed and might be expected to perform many household tasks with her right arm” is uncontroversial.
What was of critical importance to the Arbitrator’s determination was the conclusion of Dr Powell quoted by the Arbitrator at [37] of the Reasons:
“There is no history of any specific injury to the right shoulder and any increase in load placed on the right shoulder on account of left shoulder symptoms would have been well within the physiological capabilities of a normal shoulder. The presence of degeneration within the rotator cuff with advancing age is a well documented phenomenon and there is no evidence that any right shoulder symptoms fall outside the expected presentation of age related or constitutional degenerative changes.”
The respondent is correct when it says:
“The point being made by the Arbitrator is no more than, being right handed, it would be reasonable to assume that the appellant would carry out many activities using her right hand rather than her left hand irrespective of her left shoulder injury.
The respondent submits that it is but one, reasonable, factor the Arbitrator took into account when determining, based on all the evidence, whether the appellant suffered a consequential right shoulder condition.”[25]
[25] Respondent’s submissions, [38]–[39].
Furthermore, the observation by the Arbitrator that the appellant is right handed, does not equate to the Arbitrator having a “pre-determined view” of anything, much less a pre-determined view that the dominant limb cannot be adversely affected by over reliance.
Ground 5 of the appeal is dismissed.

Ground 6 – An error of mixed fact and law in that the Arbitrator failed to make a specific finding as to whether the appellant did place greater reliance on her right shoulder. Having omitted to make a finding with regard to that link in the causal chain, the ultimate determination lacked a proper substantive foundation and was accordingly flawed

The appellant quotes paragraph [60] of the Reasons and submits the paragraph is “not coherent and, importantly, does not state that the appellant did not place increasing reliance on her right shoulder”.[26] Correctly the appellant submits that there was no challenge to her evidence that she placed greater reliance on her right arm.
[26] Appellant’s submissions, [53].
The respondent submits that there was no requirement for the Arbitrator to have made a specific finding about whether the appellant did place greater reliance on her right shoulder “in order to determine whether the appellant suffered a right shoulder condition as a result of her left shoulder condition”.[27]
[27] Respondent’s submissions, [47].
The reliance or otherwise placed on the right shoulder by the appellant was not determinative of the causation issue. The passage from Kooragang referred to previously, makes clear that the determination of causation depends on the tribunal’s consideration of the totality of the evidence.
There was no necessity for the Arbitrator to make a specific finding that the appellant placed greater reliance on her right shoulder. The issue was whether the symptoms in the right shoulder resulted from the injury sustained by the appellant in July 2005.
The expression “as a result of” requires more than a common sense approach. Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory test construed and applied in its statutory context to best effect the statutory purpose. The expression “common sense approach” does not provide a useful, much less a universal, norm.[28]
[28] Comcare v Martin [2016] HCA 43, [42].
The passage from Murphy v Allity Management Services Pty Limited[29] at [58] shows, with respect, how the epithet “common sense test of causation” is properly applied in the statutory context.
[29] [2015] NSWWCCPD 49.
Roche DP said that Mrs Murphy only had to establish “that the treatment is reasonably necessary ‘as a result of the injury’”. The Deputy President was there dealing with causation for the purpose of s 60 of the Workers Compensation Act 1987 (the 1987 Act). The language of the statute was expressly adopted.
So too in the present matter, the appellant had to establish that the injury of 5 July 2005 resulted in permanent impairment of the right shoulder. A finding that the appellant placed greater reliance on the right shoulder was not required nor was it determinative of the statutory question: Did the injury of July 2005 result in a permanent impairment of the right shoulder?

The appellant’s submission at [58] does not correctly state the test for causation. The onus was on the appellant to show that symptoms in the right shoulder that she wanted referred to an AMS for assessment resulted from the injury of July 2005. That was overwhelmingly a medical question resolved adversely to the appellant when the Arbitrator rejected the opinion evidence of Dr Mendelsohn and preferred the opinion of Dr Powell.
It was not necessary for the Arbitrator to explicitly reject the appellant’s case of over reliance. With respect to the appellant, the Arbitrator did not downplay any aspect of the evidence.
Ground 6 of the appeal is not established.

Ground 7 – An error of mixed fact and law in that the Arbitrator erroneously criticised Dr Mendelsohn’s record of the evidence of over reliance as limited, whereas the simple fact that the appellant placed greater reliance on her right shoulder is unchallenged, and would follow as a matter of common sense

The appellant’s submissions in respect of this ground of appeal are a complaint that the Arbitrator downplayed the opinion of Dr Mendelsohn and that, in the absence of evidence that “the appellant did not place greater reliance on her right shoulder”, there is no basis to reject Dr Mendelsohn’s opinion.
In my view, for the reasons previously provided, it was open to the Arbitrator to reject the opinion of Dr Mendelsohn and no error of fact or law has been established that she was in error in doing so.
Ground 7 of the appeal is dismissed.

Ground 8 – An error of mixed fact and law in that the Arbitrator erroneously criticised Dr Mendelsohn’s “response” as “general”, whereas his opinion was founded upon assumed facts that were established on the evidence and involved a logical explanation of the relationship between the appellant’s right shoulder symptoms and the injured left shoulder

The appellant’s submissions in support of this ground are that the Arbitrator failed to explain whether she accepted that the appellant did activities that resulted in “double the wear and tear on the right side”, this being the expression used by Dr Mendelsohn. The appellant says in her submissions at [64]: “The evidentiary foundation upon which Dr Mendelsohn’s opinion was based was not rejected”.
The respondent relies on its submissions in relation to Ground 7 and asserts that it was open to the Arbitrator to find Dr Mendelsohn’s response was “general”.
The rejection of Dr Mendelsohn’s opinion was based on Dr Mendelsohn’s failure to explicate and disclose adequately the reasoning for his opinion. The Arbitrator did not find Dr Mendelsohn’s explanation that “her work and home tasks had doubled the wear and tear on her right shoulder” to be satisfactory. In addition, the Arbitrator preferred the explanation given by Dr Powell.
The Arbitrator said at [65] of her Reasons:
“Dr Powell, on the other hand, did disclose his reasoning process by reference to the radiological studies of Ms Schembri’s cervical spine. His opinion that the pain in her shoulders is a result of degenerative changes observed on the investigations of her cervical spine. That opinion is consistent with that of the AMS, Dr Harrison in 2010. Dr Powell considered Ms Schembri suffered age related capsulitis in both shoulders. He considered that the tasks about which Ms Schembri complained would not have been within the physiological capacity of a normal shoulder.” (emphasis added)
The underlined “not” is clearly a typographical error. Dr Powell’s opinion at [37] of the Arbitrator’s Reasons was as follows:
“… any increase in load placed on the right shoulder on account of left shoulder symptoms would have been well within the physiological capabilities of a normal shoulder.”
It was open to the Arbitrator to prefer the opinion of Dr Powell and to reject the opinion of Dr Mendelsohn, and she did not err in doing so.
Ground 8 of the appeal is rejected.

Ground 9 – An error of mixed fact and law in that the Arbitrator erroneously stated that Dr Mendelsohn did not disclose his reasoning process, notwithstanding that the reasoning process was straightforward, evidence based, logical and readily discernible

The appellant’s submission is that the rejection of Dr Mendelsohn’s opinion as a bare “ipse dixit” is “plainly erroneous”. In essence, the appellant submits Dr Mendelsohn should have been accepted.
The repetition in the appellant’s submissions at paragraph [65] of her case theory together with descriptors such as “common sense” “human experience”, and “cases regularly determined by the Commission” does not take the matter further.
The rejection of Dr Mendelsohn’s opinion has been dealt with previously and need not be repeated at this time. For the reasons previously given at paragraphs [58] to [66] above, I am of the view that the Arbitrator did not err in rejecting Dr Mendelsohn’s opinion evidence on causation.
Ground 9 of the appeal is rejected.

Ground 10 – An error of mixed fact and law in that the Arbitrator accepted Dr Powell’s opinion, notwithstanding that Dr Powell took no history of over reliance and that the Arbitrator herself had not made a finding that the appellant had not placed greater reliance on her right shoulder

Ground 11 – An error of mixed fact and law in that the Arbitrator failed to provide proper reasons for preferring the opinion of Dr Powell (who took no history from the appellant regarding over reliance on her right shoulder) to the opinion of Dr Mendelsohn (who did take a relevant history, and who did provide a logical explanation for his conclusions based upon a proper and unchallenged history)

These two grounds of appeal assert error as follows:
(a) Ground 10: error in accepting Dr Powell’s opinion when Dr Powell took no history of over reliance and the Arbitrator did not find the appellant placed greater reliance on the right shoulder.
(b) Ground 11: error in failing to provide proper reasons for preferring Dr Powell’s opinion over the opinion of Dr Mendelsohn.
The appellant and the respondent have each provided substantial submissions with respect to these two grounds of appeal. There appears to be a substantial overlap with other grounds of appeal. I endeavour not to repeat what has previously been said in these reasons in relation to the other grounds.
The appellant asserts that the Arbitrator was in error because she proceeded on the basis that Dr Mendelsohn did not disclose his reasoning process. The submission challenges the Arbitrator’s conclusion at [65] that Dr Powell “on the other hand, did disclose his reasoning process by reference to the radiological studies of Ms Schembri’s cervical spine.”
The appellant does not appear to challenge the proposition that the radiological studies demonstrated age related changes, rather the complaint is:
(a)    Dr Powell failed to record any history of the respects in which the appellant placed greater reliance on her right shoulder “and that his opinion regarding the absence of a consequential condition is tendered in an evidentiary vacuum”.
(b)    Even if Dr Powell’s opinion that the shoulder symptoms were referred pain from the neck is accepted that does not mean the Appellant’s case should be rejected. “At best” Dr Powell’s report provides a thesis of an additional contributing factor to the right shoulder symptoms.
(c)    The Arbitrator’s reliance on consistency between Dr Powell’s opinion and that of Dr Harrison in 2010 is in error because Dr Harrison considered a different issue, namely, the cause of the symptoms to the left shoulder. Dr Harrison’s Medical Assessment Certificate is of no probative value to the current question, that is, the cause of the appellant’s right shoulder symptoms.
(d)    Age related capsulitis in both shoulders is not an answer to “the question of whether there are other causal factors contributing to the symptoms in both shoulders.”
The appellant challenges Dr Powell’s opinion that the tasks about which Ms Schembri complaints would not [sic] have been within the physiological capacity of a normal shoulder. The appellant correctly identifies that statement in the arbitral award as derived from Dr Powell’s report of 18 September 2018. The relevant passage from Dr Powell is as follows:
“There is no history of any specific injury to the right shoulder and any increase in load placed on the right shoulder on account of the left shoulder symptoms would have been well within the physiological capabilities of a normal shoulder.” (Emphasis added)
The appellant’s challenge is that the passage is “demonstrably flawed” because “it is presented without having obtained any detail of the respects in which the appellant placed greater reliance on her right shoulder. The suggestion that “any increase” in load on the right shoulder would be within physiological capabilities is untenable, and if accepted would mean a consequential condition could never develop. Moreover the passage is also premised upon the appellant having a normal shoulder – an assumption that is not compatible with the next sentence in which Dr Powell refers to “age related or constitutional degenerative changes”. Dr Powell also stated in his report dated 23 July 2018 that the appellant “has some degenerative pathology in the rotator cuffs which is common with advancing age.”[30]
[30] Reply, p 280.
The appellant relies upon a passage from Deputy President Wood in Arquero v Shannons Anti Corrosion Engineers Pty Limited.[31] The concluding submission in respect of these two grounds of appeal is as follows:
“77. In the current matter, assumed facts on which Dr Mendelsohn based his opinion, are established, and provide a fair climate for that opinion, which provides a logical explanation for the development of the appellant’s right shoulder symptoms. There is no evidence to contradict the appellant’s evidence.”
[31] [2019] NSWWCCPD 3, [160]–[161].
The respondent’s extensive submissions recite the evidence of Drs Mendelsohn and Powell.
At paragraph [64], the respondent submits that the histories recorded by Dr Mendelsohn provide “no clear description of the activities which the appellant claims resulted in the overuse of her right upper limb causing a consequential right shoulder condition.” The conclusion advanced by the respondent at [65] is that the Arbitrator did not fall into error in concluding that Dr Mendelsohn did not disclose his reasoning process and the opinion with respect to the causation of the right shoulder condition was a bare ipse dixit.
The respondent then submits, having set out passages from Dr Powell’s reports, that “the Arbitrator adequately set out her reasons for preferring the opinion of Dr Powell to the opinion of Dr Powell [sic, Dr Mendelsohn]” and that there was no error in doing so.[32]
[32] Respondent’s submissions, [68].
In my view the appellant’s submission at [70] is not correct. The issue with respect to the right shoulder is not whether over reliance on that body part contributed to the current symptoms. The issue was whether the right shoulder symptoms resulted from the injury in July 2005.
The 1987 Act does not speak of “consequential conditions”. Section 66 of the 1987 Act provides for compensation to “A worker who receives an injury that results in a degree of impairment greater than 10% ...”.
It follows that in the context of the present matter the statutory question was in 2 parts:
(a) was the right shoulder impaired?
(b) if an affirmative answer is given to the first question did the injury of 5 July 2005 result in the impairment of the right shoulder?
The appellant’s focus on the alleged “over reliance” on the right shoulder obscures proper consideration of the statutory question. Determination of that issue depended on a consideration of all of the evidence. The totality of the evidence included the appellant’s evidence of over reliance, and the medical evidence from Drs Ellis, Harrison, Mendelsohn and Powell.
The point of Dr Powell’s opinion and the Arbitrator’s acceptance of it was that the symptoms in the right shoulder resulted from age related capsulitis and not from the injury in July 2005.
The appellant’s submission at [73] of her submissions, to the effect that Dr Powell is suggesting that in all circumstances an injury to the right shoulder could not develop as a consequence of excessive use of the right shoulder, is incorrect.
Properly understood, the passage from Dr Powell is specific to the circumstances of Ms Schembri’s case. The doctor’s opinion was that the load placed on the right shoulder “on account of [the] left shoulder symptoms” would have been well within the physiological capabilities of a normal shoulder is a specific reference to Ms Schembri.
What was a “normal” shoulder in relation to Ms Schembri according to Dr Powell in the report dated 18 September 2018 quoted by the Arbitrator at [37] of the Reasons, included:
“The presence of degeneration within the rotator cuff with advancing age.”
For the reasons previously given above at paragraphs [53]–[66] in my view the appellant has not shown the Arbitrator to be in error in rejecting the opinion of Dr Mendelsohn.
The Arbitrator was entitled to accept the opinion of Dr Powell. The Arbitrator’s Reasons show that she engaged with the countervailing opinion of Dr Mendelsohn. She gave reasons for rejecting his opinion and reached a logical conclusion based upon her acceptance of Dr Powell’s evidence. The appellant, in my view, has not demonstrated error with respect to either ground.
Ground 11 asserts a failure to provide “proper reasons” for preferring Dr Powell’s evidence to Dr Mendelsohn. Ground 11 is not developed in separate detailed submission.
The Statement of Reasons under s 294(2) of the 1998 Act is required to include the material findings by reference to the evidence; state the applicable legal principles and explicate the reasoning process leading to the conclusion. The overall purpose being to make the parties aware of the Commission’s view of each party’s case.[33]
[33] Rule 15.6 of the Workers Compensation Commission Rules 2011.
The Statement of Reasons addresses the medical and lay evidence at length (see the Reasons at paragraphs [12]–[15], Mrs Schembri’s evidence; paragraphs [17]–[38] dealing with the medical evidence). The Arbitrator shortly but expressly dealt with the legal principles relevant to the medical issue at Reasons paragraphs [59] and [61]. Having summarised the parties’ submissions, she resolved the medical dispute between Drs Mendelsohn and Powell in paragraphs [62]–[65]. I see no error in the manner in which the Arbitrator provided her reasons for preferring Dr Powell’s opinion evidence.
Grounds 10 and 11 of the appeal are dismissed.

Ground 12 – An error of mixed fact and law in that in all the circumstances the Arbitrator failed to provide proper reasons for her determination

I have discussed the issue of the provision of reasons in the context of the Arbitrator’s preference for the opinion evidence of Dr Powell in relation to Ground 11 of the appeal.
The sole particular of the matter for which adequate reasons are said not to be given is contained in paragraph [78] of the appellant’s submissions, namely:
“The Arbitrator’s decision is also affected by error in that she failed to provide proper reasons for not accepting the appellant’s evidence of over reliance on her right shoulder.”
The appellant’s submissions are:
“80. For reasons discussed above, the Arbitrator’s reasons are not sufficient and do not meet what is required by rule 6(1) [sic, 15.6(1)].
…
85. The Arbitrator overlooked material facts and ignored relevant material, as discussed above, causing her to fall into error.”
Further at paragraph [85] the appellant submits that the Arbitrator “overlooked material facts and ignored relevant material as discussed above.”
The appellant sets out r 15.6 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) relating to the requirement that the Commission provide a Statement of Reasons in accordance with s 294(2) of the 1998 Act.
The appellant refers for statements of general principle to Whiteley Muir & Zwanenberg Limited v Kerr[34] and to Craig v State of South Australia[35] and to the Minister for Immigration and Multicultural Affairs v Yusuf.[36]
[34] (1966) 39 ALJR 505, 506.
[35] [1995] HCA 58, [14].
[36] [2001] HCA 30, [82].
The respondent has not made any submissions with respect to Ground 12 of the appeal.
The appellant’s reference to statements of high authority, with respect, really overlooks the force of what is said in rule 15.6(2) of the 2011 Rules quoted by the appellant. The function of reasons in the Workers Compensation Commission is to “make the parties aware of the Commission’s view of the case made by each of them.”
For the reasons otherwise advanced in this decision, in my view the Arbitrator did not fail to accept the appellant’s evidence in relation to the activities and use of her right shoulder. What the Arbitrator declined to do was accept Dr Mendelsohn’s opinion evidence based on the history given to him.
The Arbitrator was not required to provide any greater reasons with respect to the appellant’s evidence in relation to the right shoulder than she did provide.
At [15] of the Reasons, the activities Ms Schembri gave evidence about are set out. Later the history of activities and complaints contained in Dr Mendelsohn’s reports are identified.
The Arbitrator accepted that the appellant had pain in the right shoulder. She did not make a finding adverse to the appellant with respect to the activities described in her statements. There is no finding and the appellant does not point to any express finding by the Arbitrator that she did not accept the appellant’s evidence of over reliance on her right shoulder.
For the reasons previously given, determination of the parties’ dispute did not require the finding contended for by the appellant. It follows the Arbitrator was not in error in failing to give reasons for not making the finding. Notwithstanding, the Arbitrator’s Reasons in dealing with the matter generally achieved the following objectives:
(a) disclosure of the reasoning process for review on appeal, and
(b) engagement with the evidence and the submissions so as to explain why the appellant had not succeeded.
The Arbitrator’s reasons satisfied the requirements for a reasoned determination of the dispute before her.
Ground 12 of the appeal is dismissed.

CONCLUSION

In my view, the appeal fails.

DECISION

The Certificate of Determination dated 6 November 2019 is confirmed.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

9 June 2020