Secretary, Department of Planning and Environment v Lyons - [2024] NSWPICPD 25

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25
APPELLANT:	Secretary, Department of Planning and Environment
RESPONDENT:	Kyle Lyons
INSURER:	QBE TMF
FILE NUMBER:	A1-W7952/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	2 May 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 20 June 2023 is revoked. 2. Upon redetermination, the following order is made: (a) Award for the respondent worker for the costs of and associated with the right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper, pursuant to section 60 of the Workers Compensation Act 1987.
CATCHWORDS:	WORKERS COMPENSATION – clause 44 of the Workers Compensation Regulation 2016 – restriction on the number of medical reports allowed into proceedings – appeal upheld – decision revoked and redetermined pursuant to section 352(6A) of the Workplace Injury Management and Workers Compensation Act1998 – Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 considered – claim for surgery pursuant to section 60 of the Workers Compensation Act 1987 – whether surgery is “as a result of” injury –Fagan v Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Kikinis, solicitor
HWL Ebsworth Lawyers
Respondent:
Mr S Moffet, counsel
Walker Law Group
DECISION UNDER APPEAL:	Lyons v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 292
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	20 June 2023

INTRODUCTION

Kyle Lyons, the respondent worker, has had a number of injuries to his right shoulder both at work and outside work. He now requires right shoulder surgery, about the need for which there is no dispute. The respondent claims the cost of this surgery pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The appellant, Secretary, Department of Planning and Environment, has denied that it is liable to pay for the surgery. The dispute in this matter is about whether the need for the surgery is causally related to the injury suffered at work on 30 December 2021.
The respondent commenced work as a Field Officer in the Parks and Wildlife section of the appellant in 2019. Prior to commencing this role the respondent suffered two injuries to his right shoulder. The first was in 2009, when he underwent a keyhole right shoulder stabilisation performed by Dr Wade Harper, shoulder surgeon. In April or May 2021, while playing rugby league, the respondent fractured his right scapula. His arm was placed in a sling for a few weeks and he resumed working for the appellant without restriction.
The injury subject of these proceedings was sustained some seven months later, and is described by the respondent in the following terms:
“I was initially based at the La Perouse Park and then later on from sometime during 2020 I was sent to Towra Nature Reserve in the Cronulla area.
I sustained an injury to my right shoulder whilst at work on 30 December 2021.
At the time of my workplace injury, I did not have any pain in the right shoulder. I had full use of my right shoulder without problem and had no difficulty coping with the work duties required of me.
On that day, 30 December 2021, I was performing my usual duties at Towra Nature Reserve. I was required to place baits for foxes. I was on a boat and was approaching an island. When the time came to get off the boat, I pushed off the front of the boat. I slipped. To avoid falling on my head, I stretched out my arms. I braced myself for impact and my right arm took almost all of the weight. I had immediate pain in the right shoulder. I had trouble moving the arm immediately. I recall having feeling a crunching sensation in the right shoulder.”[1]
[1] Respondent’s statement dated 29 November 2022, Application to Resolve a Dispute (ARD), p 2, [13]–[16].
The respondent treated the injury with ice and pain killers. On 5 January 2022 he attended his general practitioner, Dr Christopher Han, and was referred for an ultrasound and x-ray of his right shoulder. The respondent continued to consult Dr Han, he commenced physiotherapy treatment and was placed on light duties. The respondent says that thereafter, he continued to be troubled by pain, restricted movement, weakness and clicking noises in his shoulder.[2]
[2] Respondent’s statement dated 29 November 2022, ARD p 3, [35].
On 29 March 2022,[3] the respondent dislocated his right shoulder while kicking a football with his son. Then in June 2022 the respondent woke in the early hours of the morning and realised that his right shoulder had dislocated while sleeping. Finally, the respondent reports suffering a further right shoulder dislocation in September 2022. On that occasion the shoulder relocated itself. The respondent believes that the work incident was the cause of his continuing right shoulder issues, including the subsequent dislocations.[4]
[3] See Lyons v Secretary, Department of Planning, Industry and Environment [2023] NSWPIC 292 (reasons), [66], and para [58] below.
[4] Respondent’s statement dated 29 November 2022, ARD p 3, [35].
The respondent was referred by his GP to see Dr Harper on 1 August 2022. Dr Harper recommended the respondent undergo a surgical procedure in the nature of a right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer, which is the subject of the claim in this matter.[5] Dr Harper estimated the cost of the surgery at $5,566.25.[6] The appellant’s insurer denied liability for the procedure on 31 August 2022, in a notice issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[7] The appellant relied on an independent medical opinion of Dr Anthony Cairns of 12 August 2022, and argued that the respondent’s right shoulder presentation was not due to work but instead due to kicking a football with his son. Accordingly, surgery was not reasonably necessary as a result of the injury of 30 December 2021.
[5] Report of Dr Wade Harper, 1 August 2022, ARD, p 28.
[6] ARD, p 82.
[7] ARD, p 9.
The respondent sought a review of this decision and supplied an independent medical report of Dr Endrey-Walder, orthopaedic surgeon of 27 September 2022. This dispute was maintained in a review notice issued pursuant to s 287A of the 1998 Act on 10 October 2022, which also disputed that the subsequent injuries in February and July 2022 were work related.[8]
[8] ARD, p 15.
The respondent commenced proceedings in this Commission, and the matter was listed for contested arbitration hearing before Member Wynyard on 24 February 2023. Prior to this, the respondent filed late documents including an independent medical report from Dr Gavin Soo, orthopaedic surgeon, dated 16 February 2023.[9] As will be discussed in this decision, there was contest at arbitration as to the respondent’s reliance on two independent medical reports from a doctor of the same speciality, being Drs Endrey-Walder and Soo. It was agreed that the opinion of Dr Endrey-Walder would not be relied on. The Member published his decision on 20 June 2023, finding in favour of the respondent worker, and ordering the appellant to pay the costs of the claimed surgery.
[9] Appellant’s Application to Admit Late Documents (AALD) dated 15 February 2023.
It is from this decision that the appellant seeks relief on appeal.

THE MEMBER’S REASONS

I do not need to traverse the Member’s reasons in any detail given the confined nature of the appeal grounds, especially that appearing in Ground One. The salient aspects of the Member’s decision will be referenced in the discussion section below, specifically in respect of the Member’s consideration of the medical reports of both Dr Endrey-Walder and Dr Soo in making his findings.
The Certificate of Determination issued on 20 June 2023 records:
“1. The [appellant] will meet the costs of and associated with the right shoulder arthroscopy and open Latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper.”

GROUNDS OF APPEAL

The appellant relies on the following two grounds of appeal:
Ground One – The Member erred in law by relying upon the medical report of Dr Endrey-Walder dated 27 September 2022, in circumstances when the medical report prepared by Dr Endrey-Walder had been specifically excluded from the proceedings.
Ground Two – The Member erred in law by failing to take into account the evidence of the impact of the incident on 29 March 2022 and the subsequent incident on or about 7 June 2022, given the clear radiological evidence that failed to detect any abnormality that would suggest any instability or need for surgery as a result of the incident on 30 December 2021.

ON THE PAPERS

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

THRESHOLD MATTERS

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

LEGISLATION

Section 60(1) of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
Clause 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides:
“44    Restrictions on number of medical reports that can be admitted
(1)     In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)     Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)     In this clause—
forensic medical report, in relation to a claim or dispute—
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”

DISCUSSION

As to Ground One

The appellant asserts that it was the understood and agreed position at the arbitration hearing that the respondent had elected not to rely upon the opinions of Dr Endrey-Walder. The respondent does not dispute this statement.
The appellant specifically made no submissions on Dr Endrey-Walder’s opinion, in light of the agreed position, and said so on transcript.[10]
[10] Transcript of proceedings of 24 February 2023 (T), T2.30–3.2.
The appellant points to various paragraphs of the decision where the opinion of Dr Endrey-Walder was considered by the Member.[11] The appellant says:
“Despite the exclusion of the medical reports of Dr Endrey-Walder, the Member proceeded to consider and accept the views expressed by him regarding the only matter in issue, which was the requirement for surgery, arising from the pleaded injury on 30 December 2021.”[12]
[11] Appellant’s submissions, [4].
[12] Appellant’s submissions, [7].
In reply, the respondent quite properly acknowledges that the asserted error did occur. However the respondent argues that intervention on appeal depends upon the error being material to the outcome of the decision, citing Raulston v Toll Pty Ltd,[13] and that the error was not material in this matter.
[13] [2011] NSWWCCPD 25 (Raulston), [31].
The respondent points to the fact that the Member by and largely relied upon contemporaneous evidence in making his findings, meaning that it was not necessary to rely upon the medico-legal evidence, including that of Dr Endrey-Walder.[14]
[14] Respondent’s submissions, [13]–[15].
The respondent says as follows:
“When, at [89], the Member then considered the respondent worker’s specialist medical evidence, including that of Dr Endrey-Walder, and reached the same conclusion on the ultimate issue, he did so without distinguishing in substance between the evidence of Dr Endrey-Walder, Dr Soo and Dr Harper. This again disclosed an alternative path of reasoning, under which the Member could have relied on Dr Soo and Dr Harper alone, the evidence of Dr Endrey-Walder being dispensable.”[15]
[15] Respondent’s submissions, [17].
In response, the appellant says that the error was material and that:
“It is not for the parties to speculate on what the Member’s determination would ultimately have been, absent reference to Dr Endrey-Walder’s reports and opinion.”[16]
[16] Appellant’s submissions in reply, [4].

Consideration

There is no dispute that the reports and opinions of Dr Endrey-Walder were not before the Member for consideration. There is also no dispute that neither party made any submission in relation to this doctor’s evidence.
There is no doubt that an error in the sense referred to in Raulston has occurred.
The sole question for me to decide relates to whether or not this error affected the result. In this case, as neither party addressed the opinions of Dr Endrey-Walder, prima facie a denial of natural justice has taken place. In Raulston the following was said about this circumstance:
“… in respect of an error involving a departure from the rules of natural justice or procedural fairness, the appellant needs to show that the departure deprived him of the possibility of a successful outcome. To negate that possibility, it is necessary for the Presidential member to find that a properly conducted arbitration could not possibly have produced a different result (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147).
In summary, the role of a Presidential member is to determine if the decision appealed against is affected by error and, if so, to correct that error. The error must be one that has affected the outcome (Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 cited in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [110]).”[17]
[17] Raulston, [30]–[31].
This proposition is consistent with the Court of Appeal’s remarks in Toll Pty Ltd v Morrissey,[18] which were to the effect that an error relating to procedural fairness must be corrected unless it could not have possibly affected the outcome.
[18] [2008] NSWCA 197 (Morrissey), [10].
I also note that under cl 44 of the 2016 Regulation, the respondent was limited to a single forensic medical report from a practitioner of the same speciality and elected to proceed relying on Dr Soo’s opinion only. As a result of the Member referring to Dr Endrey-Walder’s evidence, the respondent effectively had two forensic medical reports from orthopaedic surgeons before the Member, contrary to this restriction.
I have read the Member’s decision closely with respect to his references to Dr Endrey-Walder. Below I set out each reference and my assessment of how the reference was used in the process of decision making. I do this in order to make the assessment as to whether the error could not have possibly affected the result, applying the passages I have referred to from Raulston and Morrissey.
The first reference to Dr Endrey-Walder appears at reasons [18]–[23] which is a section of the decision entitled “Dr Peter Endrey-Walder”. This is a sub heading within the overall section of the decision entitled “Findings and Reasons” which commences at reasons [9]. This section of the decision is where the Member is summarising salient aspects of the respondent’s medical evidence from Dr Harper, Dr Endrey-Walder and Dr Soo. At reasons [18]–[23] the Member summarises the opinions of Dr Endrey-Walder arising from each of his three reports. Without setting these paragraphs out in full, it is true to say that Dr Endrey- Walder posits a number of views which are critical of the appellant’s medical case based upon the opinions of the appellant’s consultant orthopaedic surgeon Dr Cairns. I will return to these paragraphs when assessing their effect on the overall decision in relation to the matters in dispute.
The second reference made to Dr Endrey-Walder appears at reasons [30] and this is a reference to the s 287A notice, which does refer to the doctor’s opinion. This is merely a matter of recording the history appearing in a document which makes reference to the doctor. I place no weight on this entry as possibly affecting the decision.
The third reference is found at reasons [44] which is within the section of the decision where the Member is summarising the opinions of Dr Cairns.[19] At reasons [44] the Member is detailing Dr Cairns’ critique of some aspects of Dr Endrey-Walder’s opinion. This is a continuation of the discussion appearing at reasons [18]–[23], referenced above, where the differences in the opinions of Drs Cairns and Endrey-Walder are discussed and considered by the Member. This discussion by the Member is problematic. The Member records the following:
“In considering the report of Dr Endrey-Walder Dr Cairns said he would have ‘no argument’ with the opinion that the fact that Mr Lyons remained unfit for full duties for quite some weeks after the subject injury would attest to a significant injury. Dr Cairns stated however that Dr Endrey-Walder’s opinion that the subject injury was significant enough to be the main contributing factor to the subsequent subluxation/dislocations of the shoulder was ‘open to question, notwithstanding the acknowledged possibility.’”[20] (emphasis added)
[19] Reasons, [31]–[46].
[20] Reasons, [44].
The highlighted matters traversed at reasons [44] are then picked up in one of the dispositive sections of the Member’s reasons. At reasons [83] the Member says as follows:
“Dr Cairns again quite fairly accepted Dr Endrey-Walder’s view that the continuing partial incapacity for ‘quite some weeks’ would attest to a significant injury. Dr Cairns’ final position was thus somewhat ambivalent, and he attempted to part company with Dr Endrey-Walder by saying that whether the subject injury was significant enough to be the main contributing factor to the subsequent dislocations was ‘open to question.’” (emphasis added)

Reasons [83] appears within the section of the decision entitled “Discussion”. It is one paragraph within a number of paragraphs where the Member is explaining his overall path of reasoning as to why he prefers one set of medical opinions over another. This indicates to me that with respect to reasons [44] and [83], Dr Endrey-Walder’s opinion did play a role in the result.
Further I now go to reasons [77] and [89]. They read as follows:
“77. I found the reports of Dr Harper, Dr Endrey-Walder and Dr Soo to be consistent to the cause of Mr Lyons’ need for surgery to his right shoulder. It was not suggested by any of the above doctors that Mr Lyons had dislocated his shoulder at the time of the subject accident. Their view, expressed in different ways, was that the subject injury was of such significance that it caused an instability in the right shoulder, which had been a material factor in the subsequent dislocations.
…
89. In any event, notwithstanding the detailed submissions by Mr Baker [counsel for the appellant in the proceedings before the Member], the evidence of Mr Lyons himself and the three doctors I have mentioned, Dr Harper, Dr Endrey-Walder and Dr Soo satisfy me that the subject injury is a material factor in the subsequent development by Mr Lyons of the dislocations in his right shoulder. Even though Mr Baker argued that Dr Cairns’ opinion did not rise above the possible, were that the case (which I find against), the evidence as a whole establishes causation on a balance of probabilities.”[21] (emphasis added)
[21] Referring to Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153.
Clearly on any dispassionate view of these two paragraphs, Dr Endrey-Walder’s opinion is without doubt a constituent part of the overall evidentiary basis for the Member’s ultimate conclusion in favour of the respondent. In short, the offending opinion has been considered, weighed and played a role in the result.
There is one final paragraph wherein Dr Endrey-Walder has been mentioned, and that is in reasons [90] where the Member has considered the doctor’s opinion in respect of s 9A of the 1987 Act. This paragraph is at best neutral in terms of its effect on the ultimate result and I do not need to have regard to it.
The test I am called upon to apply is whether the offending opinions of Dr Endrey-Walder could not have possibly affected the result. Far from being satisfied that the doctor’s opinion could not have possibly affected the result, I am of the opinion that it was a part of the overall evidentiary basis relied on by the Member to make the orders in this matter. There has been a failure to afford the parties procedural fairness in that neither had the opportunity to be heard on Dr Endrey-Walder’s opinion. Secondly the use to which the opinion was put, in concert with the opinion of Dr Soo, was directly contrary to cl 44 of the 2016 Regulation.
As a consequence, Ground One has been established. This being the case, it is necessary that I revoke the Certificate of Determination dated 20 June 2023.

As to Ground Two

Given that I have decided that Ground One has been established and I have decided to revoke the Certificate of Determination, I do not need to decide Ground Two.

DECISION

The Certificate of Determination dated 20 June 2023 is revoked.

REDETERMINATION

The appellant seeks the following relief in the appeal:
“The Presidential Member should either revoke the Certificate of Determination and enter in lieu thereof an award for the [appellant]. In the alternative, it would be open to the Presidential Member to order a remittal of the matter to another Member of the Commission for further determination.”[22]
[22] Appellant’s Appeal Submissions, Part A: Procedural Matters.
The powers of a Presidential Member on appeal are found in s 352(6A) of the 1998 Act which provides: “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.”
Section 352(7) provides for remittal to another non-presidential member for determination in accordance with the reasons.
The power of a Presidential member to redetermine a matter per s 352(6A) of the 1998 Act has been described in the following terms by the Court of Appeal. In Chubb Security Australia Pty Ltd v Trevarrow,[23] Santow JA said the following:
“Whether the Presidential member revokes and substitutes a decision or remits the matter to an Arbitrator [now a non-presidential member] is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims.”[24]
[23] [2004] NSWCA 344 (Trevarrow).
[24] Trevarrow, [28].
Whilst Trevarrow was decided under the former Workers Compensation Commission, that authority continues to apply to this Commission. The statutory mandate of the 2020 Act requires “the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”[25] and that decisions are “timely”.[26] These objects are supported by the ‘guiding principle’ found in s 42(1) of the 2020 Act.
[25] Section 3(c) of the 2020 Act.
[26] Section 3(d) of the 2020 Act.
Having found that there was error in the Member’s approach and applying the above principles to the present matter, I will redetermine the question of whether the requirement for surgery is causally related to the subject injury on 30 December 2021. I am in as good a position as the Member was to decide this question. The issue is confined and did not require the calling of oral evidence before the Member, nor were there any credit issues existent. There is a good transcript of the parties’ extensive submissions, augmented by the written submissions from both parties that were before the Member.
I would also note the relatively modest value of the proposed surgery, $5,566.25 as estimated by Dr Wade Harper in August 2022.[27] As a result, redetermining this matter sits comfortably in conformity with the guiding principle of the 2020 Act and in particular s 42(4) of that Act.
[27] ARD, p 82.
Consistent with the terms of my decision on the appeal, I will have no regard to the contents of the reports or opinions of Dr Endrey-Walder in the redetermination of this matter. In this regard I note that Dr Cairns for the appellant has responded to various opinions of Dr Endrey-Walder in his reports. I hasten to add that there is no criticism of Dr Cairns for so responding. But in any event, given that Dr Endrey-Walder’s opinions are not to be considered, there is no call for me to consider Dr Cairns’ critique or response to those opinions. I will therefore have no regard to Dr Cairns’ responses to Dr Endrey-Walder’s opinions in the redetermination of this matter.

Consideration

There is no dispute that the accident at work occurred on 30 December 2021 as described. There is no dispute that the proposed surgery is reasonably necessary having regard to the state of the respondent’s right shoulder. What is in dispute is whether the proposed surgery is “as a result of” the 30 December 2021 injury.
The phrase “as a result of”, used in s 60 of the 1987 Act, does not connote a necessity for a cause to be direct rather than indirect.[28] The words “as a result of” “indicate a causal connexion” which gives rise to a question of fact.[29]
[28] Fagan v Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 (Fagan).
[29] Fagan, [17].
Both parties in their written submissions before the Member set out their views of the applicable legal principles, the respondent worker at paragraph [6] of his submissions dated 17 March 2023, the appellant at paragraphs [1] to [3] and [9] of its submissions in reply dated 27 March 2023. I do not read that there is any contest about the principles themselves, rather, the contest is about whether in this case the respondent’s claim satisfies these principles.
I will also say this; lengthy submissions have been made about the treating medical records in this matter and what conclusions could or should be drawn from them. The appellant in particular has submitted in detail on the medical records.
There is binding authority on how such medical records are to be approached. In Mason v Demasi,[30] Basten JA said:
[30] [2009] NSWCA 227 (Mason).
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[31]
[31] Mason, [2].
As is evident from the introduction section of this decision, the respondent has had a number of discrete or frank incidents involving his right shoulder. These are described in the respondent’s statement dated 29 November 2022.[32] The first recorded was in 2009, while the respondent was in high school, and necessitated a right shoulder stabilisation operation performed by Dr Wade Harper. The respondent then suffered a fractured right scapula while playing rugby league in 2021. This was treated with his arm being immobilised in a sling for a few weeks.
[32] ARD, pp 1–4.
The next incident is the work injury on 30 December 2021.
The respondent indicates in his statement that in February 2022 he suffered a right shoulder dislocation whilst playing football with his son.[33] There also appears from the GP notes an incident on 29 March 2022 where the respondent slipped while playing football with his child, dislocating his right shoulder.[34] Both parties submitted to the Member that the February date was probably wrong and that this incident in fact occurred on 29 March 2022. On the morning of 7 June 2022, the respondent’s right shoulder dislocated while he was asleep in his bed. Finally the respondent also recounts suffering another right shoulder dislocation in September 2022.
[33] ARD, p 2, [23].
[34] ARD, p 62.
I have read the evidence, and in particular the medical evidence, closely.[35] I note that after the 2009 surgery, the respondent returned to playing rugby league for a number of seasons without any issue.[36] I also note that the right scapula injury settled after a few weeks. I would note that up until the 30 December 2021 injury at work, there was no suggestion or evidence that the respondent had any disability or incapacity arising from the two earlier injuries to his right shoulder. The evidence is that he could work without restriction. In short, he had recovered from these events and as a result, I do not need to consider whether they played any role in the subject incident or what happened thereafter.
[35] With the exception of any material authored by or responding to Dr Endrey-Walder.
[36] Report of Dr Wade Harper dated 1 August 2022, ARD, p 28.
After the subject incident, the respondent initially self-treated his right shoulder with an ice pack. Given the time of year and COVID lockdowns, the respondent remained at home and took pain relief.[37] The respondent first consulted his GP on 5 January 2022, who completed a SIRA Certificate of Capacity on that date.[38] This document is a SIRA question and answer type of document. The injury is recorded as a “shoulder injury” but no diagnosis is posited, however investigations are ordered. A number of work restrictions are described with respect to the right shoulder.
[37] Respondent’s statement, ARD, p 2, [17]–[18].
[38] ARD, p 29.
The next certificate from Dr Han is dated 12 January 2022[39] and the doctor diagnoses “R supraspinatus tendinosis and impingement” and a number of restrictions are recorded. The respondent is referred for physiotherapy treatment for his shoulder. Up until the time of the 29 March 2022 incident, where his right shoulder was dislocated playing with his son, at no time was the respondent reported as being free of symptoms or restrictions in his right shoulder. He was, at all times during this period of 30 December 2021 – 29 March 2022, subject to some (varying) restriction specified by Dr Han. In a certificate dated 13 March 2022, Dr Han opines that treatment is expected to be “medium term” and with respect to referral to another health service Dr Han records “physiotherapy, possible shoulder surgeon depending on investigation results”.[40] I consider that this entry is rather telling in terms of the ongoing state of the respondent’s right shoulder.
[39] ARD, p 32.
[40] ARD, p 39.
As a consequence, I have little trouble in finding that the effects of the 30 December 2021 injury had not abated by the time of the 29 March 2022 dislocation injury. I accept the general thrust of the appellant’s submissions that the GP’s notes during this period reflect a gradual lessening of symptoms, indeed the respondent had performed some welding work. But he still records occasional right shoulder pain and reports pain while holding his child. The respondent was never pain free and the GP was considering a referral to a shoulder surgeon. As a consequence, I do not accept the opinion of Dr Cairns that the respondent “effected a satisfactory recovery over the ensuing eight weeks.”[41] This simply does not accord with what is being recorded in the notes of Dr Han during this relevant period.
[41] Reply, p 5.
The appellant says that the dislocations in March and June 2022 have created new problems in the right shoulder, such problems resulting in the need for surgery.[42]
[42] T 33.21–35.9.
The appellant submits the following:
“The serial attendances at Dr Han’s practice and with the practice physiotherapist Mr Ko, together with the respective radiological reports (ARD p 75–81) and in particular the post traumatic appearances seen on radiology after the [respondent’s] fall in the park on 29/3/2022, have been referred to in the [appellant’s] submissions, but in addition, Dr Han’s notes in the referrals to the radiologists (see p 55 ARD) confirm the position of limited symptoms following the fall onto both arms alleged against the respondent, as against the clear dislocation and symptoms following the slip and fall in the park and later the second dislocation in attempting to get out of bed on 7/6/22.
Further, the entry of 8/6/2022 (ARD 67) in Dr Han’s notes after the second dislocation is instructive in recording the [respondent’s] determination to try and recover the costs of what by then must have seemed inevitable, of further treatment, and the doctor’s response thereto. Clearly it may be inferred the doctor did not feel the respondent was liable given the history of the [respondent’s] attendances that he and the physiotherapist had recorded over the antecedent period to the [respondent’s] fall in the park and the complaints and examination findings thereafter.
Shortly thereafter, the [respondent] was referred to and seen by Dr Harper and the history of ongoing symptoms of instability following the fall with the [appellant] was relied upon by the doctor. For the reasons set out previously that history is not made out as accurate on all the contemporaneous evidence and the assertions in the [respondent’s] statement and to Dr Harper are as stated in the [appellant’s] submissions, revisions of history and unreliable. The conclusion recorded by Dr Harper in respect to instability in the [respondent’s] right shoulder and relied on in the [respondent’s] submissions in pars 12 and 24 thereof, should refer to the fall in the park on 29/3/22. Further, the same submission is made in respect of Dr Soo’s opinion (refer to [respondent’s submissions] par 25) based on the same erroneous history.
In respect of Dr Cairns’ opinion (refer to [respondent’s submissions] par 26), it is clear that the doctor’s final opinion (report of 7/2/23 at p 7–9 [of the appellant’s] AALD 15/2/23) is that the injury relied on against the [appellant] was not causative of the need for the proposed surgery, and having seen all the radiological evidence he found the injury of 29/3/2022 to be the signal event following which the surgery was required. Further the dislocations of 29/3/2022 and 7/6/2022 did not result from the injury with the [appellant]. Relevantly, the injury sustained by the [respondent] and requiring surgery did not result from the injury relied upon against the [appellant].”[43]
[43] Appellant’s written submission before the Member dated 27 March 2023, [5]–[8].
In terms of the appellant’s submissions with respect to the medical records, they do need to be approached with the caution referred to by Basten JA in Mason. Here the appellant is inviting treating the medical records to be akin to a proof of evidence authored by the respondent. This is not the correct approach in principle. As I have found above, what I am satisfied of is that the medical notes reveal a continuity of complaints about pain and restriction in the right shoulder up until the 29 March 2022 incident.
The respondent submits as follows:
“Dr Harper said that the [respondent] had ‘recurrent right shoulder instability following significant fall at work’. Dr Harper received a proper history of all the falls and dislocations. He was already aware of the previous stabilisation surgery because he performed it. His opinion, consistent with what the [respondent] said in his claim form about the shoulder ‘giving way’ and hearing a ‘crunch’ and the treatment provided, especially the positive empty can tests conducted by his GP and physiotherapist, that there was instability following the December work injury, means, in his clinical judgment, that the work injury took on a certain level of importance and the subsequent dislocations were causally related to it (ARD p 28).
Dr Soo’s medico legal reports are relied on by the [respondent]. Dr Soo, like Dr Harper, found recurrent right shoulder instability since the work injury in December 2021 (AALD 8 December 2022 p 9). He expressed the injury as a ‘substantial contributing factor’ to the instability and ongoing need for treatment (p 10).
The [appellant] relies on Dr Cairns who had ‘no argument’ that the injury in jumping off the boat was a ‘significant injury’ (AALD 16 February 2023 p 5) and refused to rule out that the work injury ‘predisposed’ the [respondent] to his subsequent dislocation episodes in 2022 (p 4).
…
The totality of the evidence supports the proposition that the work injury made Mr Lyons ‘more vulnerable’ to the dislocations that followed in the months ahead as per what was said by Member Sweeney in Carr at [36].”[44]
[44] Respondent’s written submission before the Member dated 17 March 2023, [24]–[27].
I am not much assisted by the opinion of Dr Soo.[45] Dr Soo does not grapple with the crucial question of whether the 30 December 2021 injury caused an instability in the respondent’s right shoulder so as to pre-dispose him to the later dislocation injuries. Dr Soo has also been asked to consider the incorrect question on this issue. Dr Soo has opined on whether the accepted work injury was a “substantial contributing factor” to the respondent’s right shoulder instability. The correct question is whether the need for surgery results from the accepted injury.
[45] AALD 15 February 2023, p 5.

Dr Harper has provided a single report dated 1 August 2022, which is addressed to Dr Han.[46] Dr Harper, having briefly recounted an accurate history and examined the X-rays, posited the following observation, “Kyle had recurrent right shoulder instability after significant fall at work.” Dr Harper then proceeds to recommend surgery.
[46] ARD, p 28.
This leaves Dr Cairns. Dr Cairns has turned his mind to the correct question, particularly in his report of 9 January 2023.[47] Relevantly Dr Cairns says the following in this report:
“However, on review there does seem to be an element of doubt about the extent of the recovery, indeed as to whether the initial injury constituted a significant adverse impact upon the inherent stability of his shoulder, noting that Kyle had confirmed with me that at the time he had not been aware of any subluxation, dislocation nor subsequent ongoing instability until the latter incident.
…
On that basis, in my opinion there is a possibility, as distinct from probability, that the dislocations on or about February 22 2022 and on or about July 2022 may have resulted from the injury sustained to his right shoulder on 30 December 2021.
The answer is based upon the conundrum as to whether the incident of 30 December 2021 involved, probably at worst, subluxation of the glenohumeral joint.
…
Therefore, based on previous responses I am unable to provide a categorical opinion as to whether ‘the proposed surgery to the right shoulder to result from the injury on 30 December 2021’, nor to categorically opine that ‘the injury on 30 December 2021 materially contributed to the need for surgery’ based on the intangibles surrounding the incident as canvassed.
I would have to say that, on the balance of possibilities as distinct from probabilities, the injury on 30 December 2022 (sic) may have ‘materially contributed’ to the need for surgery.
With respect to the dislocations on or about February 2022 and on or about July 2022, the former may well have been solely precipitated by the incident in the park, or alternatively predisposed to by the incident of 30 December 2022 (sic) as canvassed and, similarly, also that of July 2022.” (emphasis in original)
[47] AALD 16 February 2023, p 1.
Dr Cairns was then asked to clarify a number of matters in his third report dated 7 February 2023.[48] Dr Cairns does his best to respond to the questions posed to him in this report, but he does so with reservation.[49] Nowhere in the report of 7 February 2023 does the doctor disavow the views that he expressed in his 9 January 2023 report, which I have set out above. Reading the doctor’s opinion as a whole, Dr Cairns is certainly open to the suggestion that the subsequent dislocations resulted from the accepted injury. The doctor notes that there is doubt about the extent of recovery and hence ongoing instability in the shoulder.[50] This note corresponds with my reading of the records of Dr Han.
[48] AALD 16 February 2023, p 7.
[49] AALD 16 February 2023, p 8, [2]–[3].
[50] AALD 16 February 2023, p 4.
As I have described (above) from Fagan, the cause does not need to be direct. The appellant calls in aid the commonsense test set out in Kooragang Cement Pty Ltd v Bates,[51] namely: “What is required is a commonsense evaluation of the causal chain”. I agree and accept this submission which applied to the facts of this case leads to the following conclusion.
[51] (1994) 35 NSWLR 452.
At the time of the respondent’s accepted injury on 30 December 2021, he could work without restriction. He suffered injury to his right shoulder on that date, which symptoms subsequently never disappeared. In March, June and September 2022, he suffered dislocations to the same shoulder in non-work-related circumstances. Dr Cairns, having correctly considered the history and the GP’s notes, states that there is doubt about the level of recovery from the 30 December 2021 incident. Having noted this, the doctor leaves open the possibility that the subject incident created instability in the shoulder, meaning that the two dislocations may have resulted from the accepted injury. This accords with Dr Harper’s opinion of 1 August 2022 of “recurrent right shoulder instability”. When I consider that as at 13 March 2022 Dr Han was considering a referral to a shoulder surgeon, I am satisfied that the need for surgery did indeed result from the accepted injury. There has been an unbroken record of complaints of right shoulder pain from the injury, there was referral for physiotherapy treatment and in the period immediately before the 29 March dislocation, the GP was considering a referral to a shoulder surgeon. I am not satisfied that the symptoms had abated, indeed I am satisfied of the contrary proposition. That the pain never went away supports the doctors’ opinions about right shoulder instability arising from the 30 December 2021 incident continuing at the time of the subsequent non-work related incidents.
The parties in the written submissions referred to at [53] and [66] above have both referred to Member Sweeney’s decision in Carr v State of New South Wales (Mid North Coast Local Health District).[52] At [36] of Carr, Member Sweeney referred to the authority of State Government Insurance Commission v Oakley[53] saying: “… if a work injury makes a worker more vulnerable to a subsequent non-work injury, the additional pathology caused by the second injury can be attributed to the initial work incident. This is because the subsequent incident gives rise to the need for treatment that results from the initial injury.” This is a particularly apposite statement with respect to the evidence in this matter.
[52] [2021] NSWPIC 195 (Carr).
[53] [1990] Aust Torts Reports 81-003; 10 MVR 570.
Given that in my view the chain of causation has been unbroken, I find that the need or requirement for the proposed surgery results from the injury suffered on 30 December 2021. There will be an award in favour of the respondent for the cost of the proposed surgery.

ORDERS

On redetermination, there will be an award in favour of the respondent worker for the costs of and associated with the right shoulder arthroscopy and open latarjet stabilisation with coracoid bone transfer surgery as recommended by Dr Wade Harper.

Judge Phillips
PRESIDENT

2 May 2024