Seif v Secretary, Department of Family and Community Services - [2020] NSWWCCPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Seif v Secretary, Department of Family and Community Services [2020] NSWWCCPD 6
APPELLANT:	Karam Seif
RESPONDENT:	Secretary, Department of Family and Community and Family Services
INSURER:	QBE Workers Compensation (NSW) Ltd – as agent for the NSW WorkCover Scheme
FILE NUMBER:	A1-1347/19
ARBITRATOR:	Mr M Perry
DATE OF ARBITRATOR’S DECISION:	4 July 2019 (amended on 20 September 2019)
DATE OF APPEAL DECISION:	6 February 2020
SUBJECT MATTER OF DECISION:	Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 – monetary threshold to appeal – Popovic v Liverpool City Council [2017] NSWWCCPD 49; Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23 distinguished; distinction between an “injury” as defined by s 4 of the Workers Compensation Act 1987 and a condition that arises as a consequence of an injury
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Santone Lawyers

Respondent:
Ms L Goodman, counsel
Mills Oakley
ORDERS MADE ON APPEAL:	1. Paragraph two of the Certificate of Determination dated 20 September 2019 is revoked. 2. The matter is remitted to another arbitrator for re-determination of whether the left shoulder condition result from the injury to the right shoulder on 5 May 2015.

INTRODUCTION AND BACKGROUND

Mr Karam Seif (the appellant) was employed by the Secretary, Department of Family and Community Services (the respondent), as a Child Protection contact worker, which involved transporting and at times carrying children and their luggage from place to place as well as escorting children on family visiting days. The appellant brought proceedings in the Commission for treatment expenses associated with the following alleged injuries and conditions occurring in the course of that employment:
(a)    right knee injuries on 8 January 2008 and 1 March 2010, both occurring while stepping into the work vehicle;
(b)    left knee injury on 13 October 2014, when luggage fell onto the appellant’s leg;
(c)    injury to the right shoulder on 25 May 2015, lifting two small children into their car seats and generally as a result of heavy lifting over the course of the appellant’s employment;
(d)    a consequential condition in the left shoulder, which was alleged to have resulted from relying heavily on the left shoulder because of the right shoulder injury;
(e)    as a consequence of relying more on the right knee in order to protect the left knee, increased symptoms in the right knee;
(f)    low back symptoms arising from the left knee injury, alleged to have been as a result of altered gait, and
(g)    further low back symptoms as a consequence of the appellant falling onto his back on 23 February 2019 because the left knee gave way.
The appellant had previously injured his right ankle and left knee in about 1998 or 1999 in the course of his employment as a catering officer with Qantas. He claimed and was paid compensation by Qantas in respect of that injury. The appellant asserted that he had made a good recovery from the injuries and the two arthroscopic surgeries that followed, and that treatment had ceased prior to commencing employment with the respondent.
The appellant also experienced a further incident when he was visiting his wife in hospital, in which his right knee twisted, causing the onset of immediate pain in right knee pain. He was treated in the emergency department of the hospital. His evidence was that investigations showed no change in the pathology in the right knee.
In two notices, both dated 17 October 2018 issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed liability in respect of the allegation of injury to the right knee and low back and/or development of a consequential condition in the right knee and low back as a result of the left knee injury. The respondent further disputed liability for any alleged left shoulder injury or condition consequent upon the right shoulder injury. The respondent also raised issues that any treatment claimed for those body parts was not reasonably necessary (including any proposed treatment), and not payable because of the operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act). Section 59A provides that treatment expenses are not payable beyond two years or five years after entitlements to weekly compensation cease if the worker’s whole person impairment is less than 10% or less than 20% respectively.
At some stage thereafter, presumably in the conciliation phase, the respondent accepted liability in respect of the right knee injury. The treatment expenses claimed in respect of the right knee (which included proposed surgery) were therefore discontinued.
The issues in respect of the left shoulder and low back proceeded to arbitration on 5 June 2019. The Arbitrator delivered a Certificate of Determination (COD) with a written statement of reasons on 4 July 2019. The COD was subsequently amended on 20 September 2020 for reasons not affecting the outcome. The Arbitrator entered an award for the respondent in respect of “injury” to the left shoulder, found the appellant had suffered a consequential condition in his low back as a result of the left knee injury and made a “general order” for treatment expenses related to the low back in accordance with s 60 of the 1987 Act.
The appellant appeals the Arbitrator’s decision in respect of the award for the respondent for the left shoulder.

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.”
Both parties indicate that it is appropriate to determine the appeal on the basis of the papers before me.
I have had regard to Practice Directions Nos 1 and 6; 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

Time

There is no dispute between the parties that the threshold requirement as to time to lodge the appeal pursuant to s 352(4) of the 1998 Act has been met.

The monetary threshold

Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the compensation appealed against.”
The appellant submits that the monetary threshold pursuant to 352(3) of the 1998 Act has been met. The respondent asserts that the monetary threshold has not been met because there was no amount claimed in respect of the left shoulder as the appellant amended the claim for treatment expenses, claiming a “general order” rather than a specific sum.
In reply to the respondent’s submission, the appellant submits that the claim for a “general order” in respect of treatment expenses included continuing medical expenses for the treatment of the left shoulder, as well as an amount for the proposed surgery to the right knee, which had been disputed by the respondent. The appellant submits that as at 10 May 2019, the appellant had claimed incurred s 60 expenses totalling $8,485.20 in respect of chiropractic services for both shoulders, the right knee and lumbar spine, which had been disputed. The appellant also claimed approximately $12,000 in respect of the proposed right knee surgery. The appellant says that at the arbitration the respondent agreed to pay for the right knee surgery, and the right shoulder was an accepted injury, so that the dispute was narrowed to a liability dispute in respect of the lumbar spine and left shoulder.
The appellant refers to an invoice attached to the Application to Resolve a Dispute (ARD) provided by Dr George Hanna, chiropractor and rehabilitation consultant, for treatment to both shoulders between 15 February 2019 and 6 March 2019 totalling $2,105.80.[1] The appellant contends that he was receiving this treatment for the disputed left shoulder from Dr Hanna since February 2019 and continues at the rate of $651.20 per month arriving at a current amount outstanding of $5,860.80.
[1] ARD, p 536.
The appellant relies on Westpac Banking Corporation v Dinning[2] and Popovic v Liverpool City Council[3] as authorities to say that the reference to $5,000 is a reference to the amount in issue that was before the Arbitrator and required to be determined by the Arbitrator. The appellant asserts that the Arbitrator’s determination has continuing economic ramifications for the appellant in respect of treatment expenses, as well as weekly compensation and lump sum entitlements pursuant to s 66 of the 1987 Act. The appellant submits that in order to satisfy s 352(3)(b) of the 1998 Act, where no compensation is actually awarded, the appeal must affect an amount at issue on the appeal and must have the real capacity to put the amount of compensation, determined by reference to the decision or the claim, in issue in the appeal. The appellant relies on Fletchers International Exports Pty Limited v Regan[4] as authority for that proposition.
[2] [2019] NSWWCCPD 33, [43].
[3] [2017] NSWWCCPD 49 (Popovic).
[4] [2004] NSWWCCPD 7.
The appellant contends that the Arbitrator’s determination is binding, raises an estoppel in respect of the appellant’s right to claim lump sum compensation for the left shoulder, and has the potential to put that amount of compensation in issue. The appellant asserts that the decision affects the primary liability for the left shoulder condition, and will effect compensation of at least $5,000, comprising past and future treatment expenses, and lump sum compensation pursuant to s 66 of the 1987 Act.
The appellant seeks to have the outstanding invoices from Dr Hanna and a further statement from the appellant dated 11 October 2019 admitted as further evidence in order to establish that the threshold is satisfied. The appellant also relies on a statement from his legal representative dated 11 October 2019.
The invoices are for treatment of the left shoulder from 15 February 2019 to 10 May 2019 and indicate the amount outstanding for the treatment provided was $651.20 per month, totalling $1,953.60 for that period.
In his further statement, the appellant confirms that he continues to receive treatment from Dr Hanna for his low back, both knees and both shoulders. The appellant asserts that he has treatment from Dr Hanna for his left shoulder on average of twice per week and understands each treatment costs $81.40.
The appellant states that at the time of making this statement, he was unable to obtain any further invoices because Dr Hanna was on leave. The appellant says that he understands the total amount outstanding to Dr Hanna, who had been treating him since February 2019 was, at the date of the statement, $5,860.80. The appellant further says that prior to consulting Dr Hanna, he consulted Dr Antwan Wassef, chiropractor.
The appellant’s legal representative, Ms Katherine Harley, states that she contacted Dr Hanna on 10 May 2019 in order to obtain outstanding invoices in respect of the appellant’s treatment. She states that in response, Dr Hanna provided three invoices, which are the invoices for treatment to the left shoulder between 15 February 2019 and 10 May 2019, and are the subject of this application to admit further evidence.
Despite being served with the further evidence on 19 October 2019, the respondent made no attempt to contact the Commission to seek leave to respond to the application to rely on further evidence, or alternatively to advise the Commission as to whether it consented to the admission of the documents.
In response to a direction issued by a delegate of the Registrar dated 14 January 2020, the respondent consented to the admission of the documents on the proviso that it was given the opportunity to make submissions in response. I granted leave to the respondent to file those submissions and those submissions were lodged with the Commission on 31 January 2020.
The respondent reiterates its submission that because the appellant amended his claim for treatment expenses to a “general order” there was no actual compensation claimed in respect of the left shoulder. The respondent submits that the only relevant order made was a general order for unspecified treatment expenses in respect of the lumbar spine and there was therefore no actual amount claimed in respect of the lumbar spine.
The respondent submits that the claimed s 60 expenses totalling $8,485.20 in respect of chiropractic services for both shoulders, the right knee and lumbar spine and the claim for $12,000 in respect of the proposed right knee surgery were discontinued and in lieu thereof the appellant sought a general order. The respondent contends that those amounts, therefore, were not amounts in issue before the Arbitrator. The respondent says that the treatment expenses totalling $5,860.80 now claimed were not quantified or in issue before the Arbitrator.
The respondent relies on Popovic, in which a general order was sought, rather than a quantified amount. The respondent also relies on Sheridan v Coles Supermarket Australia Pty Limited,[5] in which Fleming DP observed that “[t]he amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.”[6]
[5] [2003] NSWWCCPD 3 (Sheridan).
[6] Sheridan, [16].
Alternatively, the respondent submits the further evidence would not satisfy the monetary threshold pursuant to s 352 of the 1998 Act because, at the date of the decision appealed against, the cost of the treatment for the left shoulder in dispute incurred at the rate of $651.20 per month from 6 March 2019 would not involve an amount of at least $5,000 in dispute before the Arbitrator.
The respondent further submits that there was no claim for a lump sum pursuant to s 66 of the 1987 Act and that it is not sufficient to include the potential future entitlement in order to reach the necessary threshold, relying on O’Callaghan v Energy World Corporation Ltd.[7]
[7] [2016] NSWWCCPD 1 (O’Callaghan).

Discussion

The appellant seeks to adduce evidence on the appeal that was not evidence before the Arbitrator, which goes to show that the threshold to appeal pursuant to s 352(3)(a) of the 1998 Act is satisfied. In order to grant leave for the appellant to adduce new evidence in the appeal, a Presidential member can only do so in accordance with s 352(6) of the 1998 Act.
Section 352(6) of the 1998 Act provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
That is, the Commission can only grant the leave in circumstances where:
(a) the evidence was not available to the party seeking to adduce the evidence or could not reasonably have been obtained before the proceedings at first instance, or
(b) the failure to grant leave would cause substantial injustice in the case.
The discretion to admit the evidence can only be exercised if one of those two alternatives is satisfied.[8]
[8] State of NSW v Stockwell [2015] NSWWCCPD 9, [66].
The invoices the subject of this application pre-date the arbitration hearing. They were available to the appellant to adduce into evidence at the arbitration.
Clearly the documents do not satisfy the first limb of s 352(6). It is therefore necessary to determine whether failure to grant leave to admit the documents would cause substantial injustice in the case.[9]
[9] CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland), [31].
The invoices in respect of the period from 15 February 2019 to 6 March 2019 relate to the same attendances and contain the same entries that are referred to in the invoice which was attached to the ARD at page 536, except the invoice attached to the ARD also particularises the cost of treatment for the right shoulder. The invoice for the period now sought to be tendered was available to the appellant when the proceedings commenced, takes the evidence no further and is therefore not admitted. The two remaining invoices dealing with the period from 8 March 2019 to 5 April 2019 and 9 April 2019 to 10 May 2019 were also available to the appellant at the commencement of proceedings. There is no explanation from the appellant or his legal representative as to why they were not relied upon before the Arbitrator.
The appellant also seeks to rely on his statement dated 11 October 2019. In that statement, the appellant gives evidence that the invoices show that each treatment received for the left shoulder incurs a fee of $81.40 and says that he continues to undergo that treatment twice per week. The appellant also states that prior to consulting Dr Hanna, he attended Dr Antwan Wassef for treatment of his knees and both shoulders.
The appellant’s statement addresses matters that were not required to be addressed in the proceedings before the Arbitrator. The appellant refers to ongoing treatment for his left shoulder, for which treatment expenses are incurred. The treatment post-dates the Arbitrator’s decision. The need for the statement has arisen because the respondent has put in issue the threshold for the appeal. The respondent does not object to the admission of this further evidence. The document tends to show that the amount of compensation at issue on the appeal exceeds the $5,000 monetary threshold.
I note that in similar circumstances, Deputy President Fleming in Lilly v Tomago Aluminium Company Pty Limited[10] granted leave for ‘fresh evidence’ to be filed that established the worker’s likely total medical expenses for a knee replacement operation were $15,000, when the claim before the Arbitrator was limited to $280.
[10] [2004] NSWWCCPD 62.
Clearly the invoices now sought to be adduced do not satisfy s 352(6) because they could have been obtained prior to the arbitration.
It is therefore necessary to determine whether failure to grant leave to admit the statement and invoices would cause substantial injustice in the case.[11] There was no quantified amount sought in respect of s 60 expenses before the Arbitrator and the appellant sought a general order. If leave is not granted for the appellant to rely on these documents, the appellant could point to no evidence to establish the necessary threshold and would be deprived of the opportunity to appeal the decision of the Arbitrator.
[11] Strickland, [31].
I am of the view that it is in the interests of justice to admit the further evidence.
The appellant’s submissions that the issues the subject of this appeal could potentially involve monetary amounts greater than $5,000 because the decision creates an estoppel in respect of the appellant’s potential future entitlements to weekly compensation and a lump sum in respect of any whole person impairment pursuant to s 66 of the 1987 Act are rejected. The calculation of the amount in issue in these proceedings does not include future entitlements that may or may not arise and have not been claimed in the proceedings.[12]
[12] O’Callaghan, [51].

The Arbitrator was asked to make a “general order” in respect of treatment expenses. It has long been accepted that it is appropriate for the Commission to make a “general order,” but that the legal effect of such an order is limited because the Commission has not made a determination pursuant to s 60(1) of the 1987 Act that the treatment expenses are “reasonably necessary” and as a result of the injury.[13]
[13] Corporate Management Services (Australia) Pty Ltd v Country Energy [2010] NSWWCCPD 5.
In Olympic Fencing (NSW) Pty Limited v Crossley,[14] Acting Deputy President Snell (as he then was) considered the test in relation to the threshold to appeal was whether the Presidential member could be satisfied on the evidence that the medical expenses recoverable pursuant to a general order would exceed the s 352(2) threshold of $5,000 (the equivalent subsection to the current s 352(3)). The then Acting Deputy President noted that a general order for s 60 expenses will never be for a specific sum and permitted the inclusion of future medical expenses when considering whether the s 352(2) threshold had been satisfied. Similarly, in Bielecki v Rianthelle Pty Ltd t/as Belfora,[15] Deputy President Roche held that for the purpose of determining if the threshold was satisfied, it was necessary to determine whether, “the amount of compensation at issue on the appeal” was at least $5,000 and to resolve that question, the Commission was allowed to include the cost of future treatment in addition to the already incurred treatment expenses for the purpose of determining the threshold requirement.
[14] [2007] NSWWCCPD 121.
[15] [2008] NSWWCCPD 53.
Both parties referred to Popovic, in which Keating P determined that a “general order” made by an arbitrator did not satisfy the threshold to appeal. The relevant circumstances in Popovic were that the worker had pleaded in the ARD an amount of $5,000 in respect of treatment expenses, which was the totality of the claim before the Arbitrator. At the arbitration, that claim was abandoned and instead the worker claimed a “general order.” The Arbitrator determined that the worker had suffered such injuries but that the effects of both injuries ceased on 10 May 2017. In the subsequent COD, the Arbitrator ordered the employer to pay the applicant’s medical and hospital expenses pursuant to s 60 of the 1987 Act.
On appeal, the worker maintained that because the Arbitrator had not awarded an amount of compensation, the Commission should look to the amount pleaded in the ARD, which was $5,000 and satisfied the threshold to appeal. His Honour rejected that submission, observing that there were no particulars in relation to the extent of the medical expenses,[16] and that:
“Cases are decided on the evidence tendered and arguments presented, not on the pleadings. This is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case.”[17]
[16] Popovic, [25].
[17] Popovic, [26].
In Popovic, Keating P relied on an earlier decision by Deputy President Snell in Inghams Enterprises Pty Ltd v Grigor.[18] While in Popovic and Grigor the claim sought was a general order for treatment expenses, which it was held did not satisfy the threshold to appeal, unlike this case there was no schedule of the amount of the relevant expenses and there were no specific expenses the subject of the order. The evidence did not support the conclusion that “compensation at issue on the appeal”, pursuant to the general order for s 60 expenses, was at least $5,000.
[18] [2017] NSWWCCPD 23 (Grigor).
In the proceedings at first instance in the present case, the appellant claimed ongoing treatment expenses for the left shoulder. He also claimed treatment expenses for the lumbar spine. While in this case no specific amount was sought in respect of the s 60 expenses, and the Arbitrator made no order for the payment of compensation in respect of the left shoulder, the above authorities allow for the calculation of the amount at issue on the appeal to include the appellant’s ongoing expenses, which on the unchallenged evidence exceed the amount of $5,000 and satisfies the threshold to appeal.
I therefore find that the threshold to appeal is satisfied and the appeal can proceed.

THE EVIDENCE

The only issue in this appeal is the Arbitrator’s finding in respect of the left shoulder. Much of the evidence deals with the various other body parts for which liability had been accepted by the respondent or, in the case of the consequential back condition, the Arbitrator made an award in favour of the appellant which has not been challenged. The following review of the evidence is therefore limited to the issue of the left shoulder consequential condition.

The appellant’s statement evidence

The appellant provided four statements in the proceedings. In a statement dated 26 February 2019,[19] the appellant advised that since his right shoulder injury on 25 May 2015, he became heavily reliant on his left arm for everyday tasks, such as opening doors and carrying bags. He complained that he developed ongoing pain symptoms and stiffness as a consequence of this reliance.
[19] ARD, pp 6–7.
In a further statement dated 26 May 2019,[20] the appellant described an incident on 30 January 2017 when he was required to transport two children and their belongings from Sydney to Nowra, which took longer than usual because of heavy traffic. The appellant said that during the trip he experienced pain and discomfort in the whole of his left arm, including the left shoulder and elbow, which he attributed to unintentionally compensating for the right shoulder condition. The appellant stated that he notified his co-ordinator that he needed to put in an incident form in relation to his left shoulder and left work early to attend his doctor. The appellant annexed a print out of the text message and his coordinator’s response. The appellant said that he then received an email from the rehabilitation coordinator advising him that he was not to return to work and so he was not able to submit an incident report. He alleges that he subsequently rang the rehabilitation coordinator who then told him he had not followed his doctor’s restrictions, resulting in overuse of the left shoulder. The appellant said that thereafter he was not provided with any restricted duties and remained off work, so that he was unable to submit the incident report.
[20] Appellant’s Application to Admit Late Documents (AALD) dated 28 May 2019, pp 13–14.
The balance of the statement evidence is not relevant to the issue on appeal.

The medical evidence

The clinical notes from Blacktown Family Surgery

The clinical notes from the Blacktown Family Surgery (the clinical notes), recorded by various general practitioners in that practice but principally by Dr Safwat Soliman, general practitioner, were in evidence.[21] As the Arbitrator considered the reliability of those notes, it is necessary to review the entries in some detail.
[21] Clinical notes, ARD, pp 101–227.
The notes commenced from 19 March 2001 and concluded on 12 June 2018. The appellant attended the practice on numerous occasions over the years, complaining of various ailments. The first entry in respect of a work related condition was recorded by Dr Safwat Soliman on 3 March 2010, when the appellant complained of right knee pain and stiffness following a twisting injury at work while getting into a car.[22] The notes record that the appellant returned for review of x-rays of the right knee the following day and was provided with a WorkCover certificate of capacity. A referral to Dr Sherif M Rizkallah, orthopaedic surgeon was suggested. The appellant again attended the practice on 10, 12, 17, 22 and 25 March 2010. The clinical notes during that period did not refer to the appellant’s right knee complaints except that on 17 March 2010, Dr Safwat Soliman noted again a referral letter to Dr Rizkallah. The appellant returned to see Dr Safwat Soliman on 26 March 2011. That entry refers to an MRI scan and an anterior cruciate ligament tear.
[22] Clinical notes, ARD, p 135.
The clinical notes disclose that the appellant attended the practice on a plethora of occasions from then until 7 October 2014, without notation being made of any work related complaints. Many of the notes made no reference to the reasons for the consultations. On 24 September 2014, Dr Soliman recorded neck and left shoulder pain with complaint of left shoulder tenderness and restriction of movement.
Left knee pain was first recorded by Dr Seham Fahmy on 15 October 2014 and a plain x-ray and ultrasound investigation were arranged. On 16 October 2014, the appellant consulted Dr Lilian Soliman in respect of the left knee pain, and that doctor recorded a history of an injury at work on 13 October 2014 when heavy boxes fell on the appellant’s left knee. The results of the left knee x-ray and a referral for an MRI of the knee were discussed. The appellant continued to consult the surgery, with references to the left knee and the injury to and treatment for the right knee at Blacktown Hospital.
Various continuing clinical notes did not record any particular complaint by the appellant, but noted “COMPO”, or “Letter written re: WORKCOVER.”
The right shoulder symptoms were first recorded by Dr Safwat Soliman on 30 May 2015, but no history was taken of what precipitated the symptoms. The results of an ultrasound investigation were discussed with the appellant the following day, but the results were not recorded in the notes. The first reference to any cause of the right shoulder pain was on 18 August 2015, when Dr Safwat Soliman recorded that the right shoulder pain was due to lifting two children at work on 25 May 2015.
On 22 August 2016, Dr Safwat Soliman recorded a complaint by the appellant of bilateral shoulder pain. Further entries in the clinical notes again recorded “COMPO” and “letter written re: WORKCOVER”. On 14 October 2016, Dr Safwat Soliman noted left shoulder pain due to the extra load because of the right shoulder injury.
On 30 January 2017, the appellant again attended Dr Safwat Soliman. On this occasion the doctor recorded the appellant’s complaint as tender left elbow pain with restricted movement, diagnosed tennis elbow and provided an elastic support.

The radiological evidence

A left shoulder ultrasound was performed by on 23 May 2019 by Dr Tony Lu, radiologist. The report recorded findings that the long head of the biceps tendon was subluxed medially, the supraspinatus and infraspinatus tendons demonstrated mild tendinosis without evidence of a tear, the subacromial/subdeltoid bursa was mildly thickened, and the dynamic range of movement was markedly restricted, which suggested the possibility of adhesive capsulitis.[23]
[23] ARD, Appellant’s AALD, p 18.

The WorkCover Certificates of Capacity

A number of WorkCover certificates of capacity were in evidence[24] which predominantly certified as to the restrictions on the appellant’s capacity for work in respect of the left knee and right shoulder injuries, and low back symptoms. Certificates referring to the injury as “RT SHOULDER INJURY AGGREVATED LEFT SHOULDER POST TRAUMATIC SYMPTOMS” commenced from 27 November 2017.[25]
[24] Reply to Application to Resolve a Dispute (Reply), pp 90–236; ARD, pp 237–535.
[25] ARD, pp 317–319.

Dr Medhat Guirgis, orthopaedic surgeon

The appellant was referred to Dr Guirgis by Dr Safwat Soliman. Dr Guirgis provided a number of reports commencing from 4 November 2014 directed to Dr Safwat Soliman following review of the appellant’s complaints in respect of the left and right knees, and which included a review of the right shoulder injury from 7 September 2015.[26]
[26] ARD, pp 51–69.
In a report dated 19 October 2017,[27] Dr Guirgis recorded a history that the appellant had last worked on 31 January 2017 following a prolonged drive to Nowra, which had significantly aggravated his shoulders. Dr Guirgis said that the appellant had reported to him that he had been “favouring” his left arm in his activities of daily living in order to avoid the pain he was experiencing in his “frozen” right shoulder which the appellant reported caused the development of overuse symptoms of painful symptoms of heaviness in the left shoulder. Dr Guirgis arranged for ultrasound scans and bone scans of the left shoulder and diagnosed “Consequential overuse symptoms” in the appellant’s left shoulder. In a subsequent report dated 14 February 2019,[28] Dr Guirgis commented that he felt it rather strange for the respondent to accept liability for the frozen right shoulder and the effects of that condition, but to deny the “consequential expected problems developing in his left shoulder because of the necessity to compensate” by using the left arm in his activities of daily living.

[27] ARD, pp 66–67.

[28] ARD, pp 68–69.

Associate Professor Peter Papantoniou, orthopaedic and spinal surgeon

The appellant was referred to A/Prof Papantoniou by Dr Safwat Soliman. A/Prof Papantoniou reported to Dr Soliman on 9 April 2019 in a detailed report of the same date.[29] A/Prof Papantoniou took a history of both the left knee injury and the right shoulder injury, noting the evident subsequent diagnosis of a frozen shoulder. A/Prof Papantoniou noted the appellant’s inability to use his right shoulder to any significant degree, and that as a result of overusing the right shoulder, the appellant developed pain in the left shoulder. A/Prof Papantoniou referred to an x-ray and ultrasound of the left shoulder dated 20 November 2017, which was reported as demonstrating a subacromial bursitis. A/Prof Papantoniou formed the view that he was not qualified to comment on the likely cause of the pathology in the shoulders.
[29] Appellant’s AALD 28 May 2019, pp 2–7.

The medico-legal reports

The appellant qualified Dr John Harrison, orthopaedic surgeon. Dr Harrison provided a report dated 10 May 2018 following an examination of the appellant on that day.[30] Dr Harrison took a thorough history of the injuries to the left knee and right shoulder, the treatment that followed and other non-work related complexities in the appellant’s medical condition which complicated the appellant’s treatment regime in respect of the work related injuries. The history included the appellant’s complaint that the long drive to Nowra on the last day the appellant worked “aggravated his shoulders and neck pain.”[31] Dr Harrison recorded that the appellant suffered from central posterior neck discomfort and dysaesthesias (abnormal discomfort) in an ulnar nerve distribution, not involving the long fingers, which was more troublesome on the left side. Dr Harrison noted that no EMG studies of the upper limbs had been performed.
[30] ARD, pp 28–37.
[31] Dr Harrison’s report dated 10 May 2018, ARD, p 31.
Dr Harrison provided a further report on 12 June 2018.[32] Relevantly, Dr Harrison commented that at the time he assessed and reported on the appellant’s condition on 10 May 2018, the appellant had a very restricted range of movement of the right arm at the shoulder, which was more dominant than the interplay of neck symptoms on the left side. The balance of the report dealt with Dr Harrison’s views about proposed surgical treatment of the right shoulder.
[32] ARD, pp 38–39.
Dr Harrison provided a further report dated 31 July 2018, which did not touch upon issues relating to the left shoulder.
Dr Harrison again reported to the appellant’s legal representatives on 18 December 2018, following receipt of the reports of Dr Robert Breit, orthopaedic surgeon qualified by the respondent. Dr Harrison was asked to provide an opinion on the causal connection between the left shoulder condition and the right shoulder injury. He opined as follows:
“Again, the power supply to upper extremities and proximal limb girdle area comes from the nerve supply emerging from the neck. This man has had neck pain, upper limb problems and undoubtedly, with the discomfiture of and apparent restricted mobility of one shoulder through an acquired or developing ‘frozen shoulder’ condition from which he apparently suffered.
Preferential use of the opposite limb can lead to an interplay between neck and shoulder discomfort with restricted motion occurring as well on the initially unaffected side.
Against that, people suffering limb ablation, partial or total from a younger age, do not always (inevitably) go on to develop problems on the other side, but in this man’s case and by his work history it did happen.”[33]
[33] Dr Harrison’s report dated 18 December 2018, ARD, pp 45–46.
Numerous medico-legal reports commissioned by the respondent were in evidence. Neither party, or indeed the Arbitrator, raised any issue about the number of medical reports, which were potentially in breach of reg 44 of the Workers Compensation Regulation 2016, which limits a party to reliance on only one forensic report in the proceedings.
The respondent relied on the forensic medical reports of Dr James Vote, orthopaedic surgeon. In his report dated 2 April 2019,[34] Dr Vote took the history of the appellant’s right shoulder injury, which subsequently developed into a frozen shoulder syndrome. Dr Vote noted that the appellant complained that, because of the very limited use of his right shoulder, he had developed increasing pain which became a chronic ache and experienced restriction of movement. Dr Vote reviewed the various radiological investigations and referred to ultrasound investigations of the left shoulder dated 20 November 2011 (which were not in evidence) showing bursitis, bunching of the rotator cuff on abduction but no frank tears.
[34] Respondent’s AALD, pp 6–13.
Dr Vote concluded that the severe problems with the appellant’s knees, and low back, when combined with the appellant’s chronic right shoulder problems “which essentially make him left hand dependant”[35] rendered the appellant almost an invalid. Dr Vote did not comment on the causal connection between the appellant’s left shoulder symptoms and the right shoulder injury. Dr Vote provided further reports dated 23 April 2019[36] and 24 May 2019. The most recent report was not lodged under cover of an AALD but was simply handed up to the Arbitrator at the arbitration and admitted into evidence. Neither report addressed the issue of causation between the right shoulder injury and the left shoulder condition.
[35] Dr Vote’s report dated 2 April 2019, respondent’s AALD, p 12.
[36] Respondent’s AALD, pp 14–15.
The respondent arranged for the appellant to be examined by Dr Anthony Smith, orthopaedic surgeon on 10 May 2017. Dr Smith provided two reports, the first dated 10 May 2017,[37] which was prepared on the basis of the examination on that date, and the second dated 31 October 2017[38] addressing the appellant’s urgent request for an arthroscopy of the knee (without specifying which knee).
[37] Reply, pp 34–43.
[38] Reply, pp 44–46.
In the report dated 10 May 2017, Dr Smith was not asked to address the appellant’s allegation of a consequential condition in the left shoulder but did perform a physical examination following which he reported global loss of power in all movements of the upper limbs, more marked on the right. Dr Smith compared the appellant’s demonstrated restrictions on examination to the appellant’s ability when dressing at the end of the examination and observed inconsistent behaviour. Dr Smith thought it improbable that the appellant could have suffered injury to either the right or left shoulder in the context of the appellant’s complaint that the right shoulder was injured when the appellant was buckling two children into a car seat. Dr Smith was of the view that it was more likely than not that the appellant suffered an aggravation of cervical degenerative disease which caused pain to be referred to one shoulder or the other.
Dr Robert Breit, orthopaedic surgeon, was also asked by the respondent to provide a medico-legal opinion. In his first report dated 20 December 2017, Dr Breit did not have a history of left shoulder symptoms and the doctor did not examine the appellant’s upper limbs. Dr Breit did however refer to a left shoulder ultrasound said to be dated 20 November 2015, which was not in evidence.[39] Following a further examination of the appellant, Dr Breit provided a second report dated 29 August 2018.[40] Dr Breit recorded that the appellant’s current complaints included left shoulder pain, reported to be as a result of overuse, with diminished range of movement. On examination Dr Breit noted complaint of gross reaction to palpitation generally in the various body parts, including the cowl of the right shoulder and most of the left. On examination of the left shoulder, there were complaints of pain. Dr Breit considered the neurological assessment was not valid because of complaints of pain, weakness and restricted movement. Dr Breit did not address any causal connection between the left shoulder condition and the right shoulder injury.
[39] Reply, pp 49–56.
[40] Reply, pp 57–63.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues in dispute as:
(a) whether the appellant sustained an “injury” to his right shoulder as a consequence of the accepted right shoulder injury, and
(b) whether the appellant suffered an injury to his low back as a consequence of the accepted left knee injury.
The Arbitrator reviewed the appellant’s statement evidence, the clinical notes of the Blacktown Family Surgery medical practice and the medical evidence provided by the various medical experts. The Arbitrator summarised the submissions of both parties, noting that the appellant’s case was that the claims for “injury” to both the left shoulder and the low back were consequential “injuries.”
The Arbitrator noted that all of the doctors who assessed the appellant were of the view that the history of injuries was difficult and cited the various opinions from the medical experts about the difficulties they had in assessing the appellant’s disabilities. The Arbitrator rejected the respondent’s submission that the appellant was not a witness of credit, but expressed concern about the reliability of the appellant’s evidence in the light of the inconsistencies in the evidence, including the observations made by the medical experts. The Arbitrator said he needed to take care with the appellant’s evidence and look to corroboration of that evidence when it was appropriate to do so.
The Arbitrator observed that the report of the ultrasound study dated 23 May 2019 provided by Dr Lu contained a commentary of what appeared in the images, but that the evidence needed to be the subject of a medical opinion about the relevance of those findings to the left shoulder issue. The Arbitrator concluded that there is no such opinion. The Arbitrator referred to A/Prof Papantoniou’s reference to the x-ray and ultrasound undertaken on 20 November 2011 (which he thought was likely to be a reference to 2017), which showed bursitis, but noted that A/Prof Papantoniou was not prepared to offer an opinion in relation to the left shoulder issue and the relevance of the findings to the issue of causation of injury.
The Arbitrator noted that the first entry in the Blacktown Family Surgery clinical notes in relation to the left shoulder was on 24 September 2014, which was before the right shoulder injury, and that the entry refers to pain in the context of neck symptoms. The Arbitrator considered that this entry could be relevant in terms of Dr Smith’s view that the shoulder symptoms may have been emanating from an aggravation of the appellant’s cervical degenerative disease. The Arbitrator said that whether Dr Smith’s view was correct was not dispositive of the issue, and observed that this evidence highlighted the importance of the need for some adequate evidence that would persuade him of the existence of the fact that there was an injury to the left shoulder and that it resulted from the right shoulder injury.
The Arbitrator referred to the entry in the clinical notes on 14 October 2016 and the appellant’s complaints of left shoulder pain, which the appellant attributed to overusing his left arm because of the right shoulder injury. The Arbitrator said that Dr Safwat Soliman did not refer to an injury, let alone provide a diagnosis or identify any pathology. The Arbitrator was of the view that while some pathology was identified at a late stage, he was not in a position to correlate those radiological findings with the history and clinical findings so as to draw a causal link.
The Arbitrator indicated that he did not find persuasive the appellant’s evidence that the pain, symptoms and stiffness had come about because of his reliance on the left arm for everyday use, despite that evidence being consistent with the doctors having recorded pain and stiffness. The Arbitrator said that there needed to be some identifiable pathological change for him to be satisfied that there had been an injury. The Arbitrator considered that Dr Harrison’s opinion was not sufficient, despite the doctor’s opinion that the left shoulder problems resulted from the right shoulder injury.
The Arbitrator accepted that on the basis of what was reported to the doctors, he was satisfied that the appellant suffered symptoms in the left shoulder but was not satisfied that it was more likely than not that the symptoms were evidence of pathological change. The Arbitrator thought that it was not clear whether Dr Harrison viewed the ultrasound and the MRI scan referred to by the doctor, and that the doctor’s reference to “problems” or “issues” with the left shoulder was a reference to pathology such as bursitis or capsulitis, which pathology resulted from the overuse of the left shoulder. The Arbitrator considered that this connection required some medical expertise.
The Arbitrator referred to various authorities on the drawing of inferences from probable facts and the observations made by Allsop P (as his Honour then was) in OneSteel Reinforcing Pty Ltd v Sutton[41] that although the Commission is not bound by the rules of evidence, it is required to draw its conclusions from probative material in order to act lawfully and in order that the conclusions reached are not seen to be capricious, arbitrary or without foundation.
[41] [2012] NSWCA 282.
The Arbitrator returned to the medical evidence and noted that the next reference in the evidence about left shoulder pain after the entry in the clinical notes on 14 October 2016 was in a WorkCover certificate of capacity on 22 December 2017. However, in the meantime, the appellant stated that he suffered from left shoulder pain since 30 January 2017. The Arbitrator said that the onset of left shoulder pain on 30 January 2017 was not consistent with the clinical note made by Dr Safwat Soliman on that day, which referred only to left elbow pain. Further, the complaint of left shoulder pain was not consistent with the entry in the clinical notes three days later of only right shoulder pain. The Arbitrator also took into account the absence of a record of left shoulder pain between 14 October 2016 and 22 December 2017. The Arbitrator conceded that a degree of caution should be exercised in placing reliance on histories taken by busy doctors, however the Arbitrator was of the view that the inconsistencies went beyond the entry of 30 January 2017 and included the later entries to which he had earlier referred.
The Arbitrator turned to the evidence of Dr Guirgis. The Arbitrator noted that there was no mention of left shoulder pain in the WorkCover certificates of capacity prior to late 2017. The Arbitrator referred to Dr Guirgis’ report dated 19 October 2017 and the reference to left shoulder pain after returning from Nowra on 31 January 2017, as well as the appellant’s complaint that he had been using the left arm to avoid the pain in the frozen right shoulder. The Arbitrator observed that Dr Guirgis referred the appellant for an ultrasound and MRI, but that Dr Guirgis did not report on those findings, and at no time identified any left shoulder injury or pathology. Dr Guirgis simply referred to “symptoms” or “problems.”
The Arbitrator concluded that, in all the circumstances, he was not actually persuaded, or reasonably satisfied that, on the balance of probabilities, the appellant sustained an injury to his left shoulders. Further, even if such pathology existed, he was not persuaded or satisfied that it occurred as a result of the right shoulder injury. He concluded that there was no, or no adequate medical evidence to support such a finding.
The Arbitrator proceeded to determine the remaining issue and concluded that he was satisfied that the appellant’s low back condition resulted from the left knee injury.
The amended Certificate of Determination issued on 20 September 2019 records:
“The Commission Determines:
1.     The description of the respondent, wherever it appears in the pleadings, as ‘Department of Community Services’ is amended so that the respondent shall now be described as ‘Secretary, Department of Family and Community Services’.
2.     With respect to the applicant’s claim of injury to his left shoulder, there is an award for the respondent.
3.     As a result of the injury to the applicant’s left knee on 13 October 2014, the applicant has sustained a consequential injury to his low back.
4 There is an award for the applicant, by way of general order, for expenses pursuant to s 60 of the Workers Compensation Act 1987 with respect to his low back injury.”

GROUNDS OF APPEAL

The appellant cites four grounds of appeal alleging error on the part of the Arbitrator in his determination that the appellant’s claim in respect of the left shoulder failed. The errors are said to be:
(a)    error of law in that the Arbitrator applied the wrong test in determining the issue of whether the appellant suffered a consequential condition in the left arm as a result of the right arm injury;
(b) error of law by requiring the appellant to establish that he had suffered an injury to the left arm within the meaning of s 4 of the 1987 Act;
(c)    error in requiring the appellant to establish some identifiable pathology in order to prove he suffered from a consequential condition, and
(d)    error of fact in failing to find that the presence of symptoms in the left shoulder could constitute a compensable consequential condition.
In my view, these are not separate grounds of appeal. In essence, the appellant complains that the Arbitrator erred by requiring the appellant to establish the matters relevant to an injury pursuant to s 4 of the 1987 Act, rather than what is required to establish a consequential condition.
I will deal with the appeal on that basis.

LEGISLATION

Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
The respondent contends on this appeal that in any event, the appellant has no entitlement to payment of his treatment expenses because of the operation of s 59A of the 1987 Act. Section 59A relevantly provides:
“59A Limit on payment of compensation
(1)     Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2)     The compensation period in respect of an injured worker is–
(a) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on–
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on–
(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
(3)     If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)     For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.
…”.

SUBMISSIONS

The appellant’s submissions

The appellant submits that the Arbitrator erred by requiring the appellant to establish that he had suffered an injury to his left shoulder in accordance with s 4 of the 1987 Act. The appellant says that the question for determination did not require a consideration of s 4 and did not require consideration of s 9A of the 1987 Act, which provides that the worker’s employment must be a substantial contributing factor to the injury. The appellant contends that he was also not required to identify if some pathological change had occurred in the left shoulder. The appellant says that all the Arbitrator was required to determine was whether the appellant’s symptoms and restrictions in the left shoulder resulted from the injury to the right shoulder.
The appellant explains that his claim was that he suffered from a consequential condition in the left shoulder that resulted from the accepted right shoulder injury and it was not necessary that he prove that he suffered an injury pursuant to s 4. The appellant cites Moon v Conmah Pty Ltd[42] as authority for that proposition.
[42] [2009] NSWWCCPD 134 (Moon).
The appellant submits that the correct test is to consider whether the appellant’s left shoulder pain and symptoms were explained by his over-reliance of his left arm for everyday use because of the accepted right shoulder injury. The appellant further refers to Kumar v Royal Comfort Bedding Pty Ltd,[43] in which Deputy President Roche confirmed that it was not necessary for the Arbitrator to determine “injury” to the left shoulder or whether the appellant suffered from pathology in the left shoulder. The appellant also cites Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan,[44] in which Deputy President Snell made the same observation.
[43] [2012] NSWWCCPD 8 (Kumar), [61].
[44] [2016] NSWWCCPD 23 (Brennan).
The appellant contends that, contrary to the above established principles, the Arbitrator erred in law by applying the wrong test, that is, that the appellant suffered injury, when he observed that:
(a)    he needed to be persuaded of the existence of the fact that the appellant had suffered an injury to the left shoulder which resulted from the right shoulder injury;
(b)    in the entry in the clinical notes dated 14 October 2016, Dr Safwat Soliman did not refer to the appellant as having suffered injury, did not provide a diagnosis or identify any pathology;
(c)    he was not satisfied that the symptoms experienced by the appellant were more likely than not evidence of pathological change, that Dr Harrison’s reference to “problems” and “issues” referred to pathology such as bursitis or capsulitis, or that such pathology resulted from overuse of the left shoulder, and
(d)    he was not persuaded that the appellant had suffered an injury to the left shoulder or that any pathology in the left shoulder resulted from the right shoulder injury.
The appellant submits that the Arbitrator was required to apply the test of causation, which is described by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates[45] as “a common sense evaluation of the chain of causation.” The appellant contends that the Arbitrator failed to take into account all of the evidence, which included the record of the appellant’s complaints of symptoms noted by Dr Safwat Soliman, and the evidence of Dr Harrison and Dr Guirgis, together with the appellant’s own statement evidence in relation to symptoms and overuse of the left arm.
[45] (1994) 35 NSWLR 452; 10 NSWCCR 796, at 463–464.
The appellant submits that the Arbitrator erred in dismissing the clinical entry made by Dr Safwat Soliman on 14 October 2016, which referred to left shoulder pain as a result of extra load on the left arm because of the right shoulder injury. The appellant says that the Arbitrator gave that evidence little weight because the doctor did not record an injury, provide a diagnosis or identify any pathology. The appellant maintains that this was a clear error on the part of the Arbitrator. Further, the Arbitrator erred by being critical of Dr Guirgis for not identifying any injury or pathology.
The appellant contends that it is clearly apparent that the Arbitrator misdirected himself in his approach when he said the appellant needed to identify a sudden or identifiable pathological change. The appellant says that there was sufficient evidence to find in favour of the appellant.
The appellant asserts that when determining the question of causation of a consequential condition in the upper limbs, evidence is required of the activities the appellant undertook and the usage of the affected limb which pointed to overuse and favouring of the injured body part, relying on Moriarty-Baes v Officeworks Superstores Pty Ltd[46] for that proposition. The appellant refers to his statement dated 26 February 2019, in which he stated that because of the right shoulder injury he was more reliant on his left arm for everyday activities, such as lifting items, carrying bags and opening doors. The appellant points out that he continued to work from 5 May 2015 to January 2017 and was required to lift children during that time. The appellant maintains that the history provided by the appellant and the histories recorded by the doctors provide the necessary explanation as to the onset of the left shoulder condition.
[46] [2015] NSWWCCPD 28.
The appellant submits that although he is not required to establish pathology in the left shoulder, as discussed by A/Prof Papantoniou, the radiological evidence confirmed subacromial bursitis.
The appellant concludes that there was adequate medical evidence to support a finding that the appellant suffered a consequential condition as a result of the right shoulder injury on 5 May 2015.

The respondent’s submissions

The respondent concedes that the appellant was not required to establish he suffered an injury to the left shoulder in accordance with s 4 of the 1987 Act and accepts that the issue for determination was whether the appellant’s left shoulder condition was a consequence of the right shoulder injury.
The respondent contends that the Arbitrator carefully set out and analysed the history taken by each doctor and refers to the Arbitrator’s following observations:
(a)    the first mention of the left shoulder symptoms was on 24 September 2014, prior to the right shoulder injury;
(b)    the next entry in the clinical notes was on 14 October 2016, when Dr Soliman recorded the history of the appellant complaining of left shoulder pain because he was compensating for the right shoulder injury, but Dr Soliman did not provide his own opinion as to the causal nexus;
(c)    Dr Smith commented that it was improbable that the appellant would have suffered an injury to either shoulder performing the activity of buckling two children in their car seats and that it was more likely the left shoulder symptoms were referrable to an aggravation of the appellant’s cervical degenerative disease;
(d)    the first reference to the left shoulder provided by Dr Guirgis was on 19 October 2017;
(e)    Dr Guirgis did not comment or report on the results of the radiological investigations conducted on 20 November 2017;
(f)    Dr Guirgis arrived at a conclusion that there were consequential overuse symptoms in the right shoulder before those investigations were undertaken and without providing reasons for his conclusion;
(g)    there was no reports from Dr Biggs who apparently made the diagnosis of a frozen right shoulder. Although the Arbitrator declined to draw any adverse inference because of the absence of evidence from Dr Biggs, the Arbitrator took the view that such absence of the evidence underlined the evidentiary gap in the appellant’s case, and
(h)    A/Prof Papantoniou indicated he was not qualified to comment on the likely causes of the appellant’s left shoulder symptoms.

The respondent refers to the Arbitrator’s conclusion that he was not prepared to make a finding that the appellant was not a witness of credit but that his concerns about the appellant’s evidence required him to take care with that evidence and look for evidence that was corroborative of the appellant’s account.
The respondent submits that the Arbitrator took account of the evidence of the appellant, Dr Soliman, Dr Harris and Dr Guirgis, carefully analysed that evidence and concluded that there was no adequate evidence to persuade him that the left shoulder condition was as a result of the injury to the right shoulder.
The respondent says that the clinical note on 14 October 2016 was simply a record of a complaint made by the appellant and not an opinion on the connection between the left shoulder condition and the right shoulder injury.
The respondent contends that the inference is that the Arbitrator rejected the opinion of Dr Harrison because it is not clear what Dr Harrison meant by referring to the appellant’s “work history” in his conclusion about the relationship between the left shoulder symptoms and the right shoulder injury, and because of the lack of reasoning on Dr Harrison’s part.
The appellant submits that the Arbitrator considered the appellant’s evidence was unreliable, after an analysis of all of the medical evidence, which led him to conclude that he was not persuaded that the left shoulder condition was as a result of the right shoulder injury.
The respondent concludes that the Arbitrator carefully analysed the evidence and provided proper reasons for making his finding.
The respondent also raises s 59A of the 1987 Act, and submits that in any event, the appellant is not entitled to treatment expenses because two years have expired since the appellant was last paid compensation.

DISCUSSION

The respondent’s submissions in relation to s 59A of the 1987 Act are rejected. Although s 59A was raised as an issue in the respondent’s dispute notice on 17 October 2018, it was not identified as an issue requiring determination by the Arbitrator and is not the subject of a ground of appeal. There is no evidence in the proceedings about the appellant’s level of whole person impairment, and no evidence as to the matters that might assist the determination of whether weekly payments of compensation are paid or payable. In this case, the compensation period referred to in s 59A(1) is not defined to run from when the appellant last received weekly payments, but is defined by when weekly compensation was last paid or payable. Absent the issue being raised, argued and determined by the Arbitrator, it is not appropriate to invoke a consideration of the section in this appeal.[47]
[47] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111.
I note the respondent’s concession that the appellant’s claim is one of an alleged consequential condition and not an allegation that the appellant suffered an injury to the left shoulder. The respondent’s submissions in reply to the appeal grounds refer to the various reasons given by the Arbitrator for his ultimate determination. They do not touch upon the Arbitrator’s ultimate finding that the appellant did not suffer an injury to his left shoulder, or the reasons identified by the appellant as errors in the reasoning process leading to the complaint that the Arbitrator applied the wrong legal test. Those errors were identified by the appellant as:
(a)    the need to be persuaded of the existence of the fact that the appellant had suffered an injury to the left shoulder which resulted from the right shoulder injury;[48]
(b)    being critical of Dr Soliman’s clinical note dated 14 October 2016 because he did not refer to the appellant as having suffered injury, and did not provide a diagnosis or identify any pathology in the left shoulder;[49]
(c)    needing to be satisfied that there was evidence of pathological change,[50]
(d)    Dr Harrison’s reference to “problems” and “issues” was not evidence of pathology such as bursitis or capsulitis, or that such pathology resulted from overuse of the left shoulder,[51] and
(e)    being not persuaded that the appellant had suffered an injury to the left shoulder or that any pathology in the left shoulder resulted from the right shoulder injury.[52]
[48] Seif v Secretary, Department of Family and Community Services [2019] NSWWCC 232 (reasons), [81].
[49] Reasons, [82].
[50] Reasons, [84].
[51] Reasons, [84].
[52] Reasons, [88].
The distinction between an “injury” as defined by s 4 of the 1987 Act and a condition that arises as a consequence of an injury is well settled. In order to establish that there has been an injury within the meaning of s 4 of the 1987 Act, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.[53] The issue in the present proceedings is not whether the appellant received an injury but whether the medical treatment to the left shoulder has resulted from the injury to the right shoulder. The distinction between an injury and a consequential condition has been the subject of a number of Presidential decisions, including Moon and Kumar, the authorities relied upon by the appellant.
[53] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286.
In Moon, Deputy President Roche observed as follows:
“The evidence in support of this allegation is brief but clear. It is obvious that Mr Moonhas experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moonis claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder …
It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moonhad to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”[54]
[54] Moon, [44]–[45].
The appellant makes the same complaint as did Mr Moon, that is, that on the basis of the restrictions in his ability to use the injured right shoulder, the appellant developed symptoms of overuse in the left shoulder. In Moon, Deputy President Roche found error on the part of the Arbitrator, who had found against Mr Moon for the following reasons:
(a)    he would have expected a complaint to a treating doctor and some investigation about the left upper extremity if Mr Moon suffered symptoms by way of gradual onset over time;
(b)    he was not satisfied on the medical evidence that there was sufficient evidence of injury, pathology and continuing symptoms which might give rise to a permanent impairment, and
(c)    the evidence was rather scant until three years after the original injury, and there was no complaint recorded before that time about the onset of symptoms.
The Arbitrator in the present case also considered that the absence of, and delay in, reports of left shoulder symptoms weighed against the appellant. The Arbitrator did not explain why an apparent delay in the reporting of symptoms to a medical practitioner was relevant. Had the Arbitrator been determining the question of injury, then that would have been a relevant factor, but in the case of an allegation of a consequential condition, which often does not manifest in early symptoms, or the medical focus is aimed primarily at treating the injured body part, the lapse in time is not always adverse to the worker’s case. As Basten JA observed in State of New South Wales v Bishop:
“In the present case, the question of causation was purely a question of fact for the arbitrator. How other courts have dealt with such questions on their own facts will not provide precedents, because they are not statements of legal principle. The statement from Kooragang that ‘the mere passage of time ... is not determinative’ is not a legal principle, nor does it give helpful guidance in the present case. The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant.”[55]
[55] [2014] NSWCA 354, [20]
In Bishop, Emmett JA also made the following observation:
“In dealing with the second basis of the Arbitrator’s determination, being the absence of record of complaint by Ms Bishopof her leg giving way, the Presidential Member observed that a great deal of emphasis had been placed on the undisputed absence of any record of such a complaint. He said that the Arbitrator appeared to have accepted that that absence was relevant to the deliberation as to causation, but that it was not apparent from the Arbitrator's reasons why such absence of complaint was relevant to that issue.”[56]
[56] Bishop, [68].
The Arbitrator’s consideration of the delay in the present case is not explained, but a reading of the Arbitrator’s reasons as a whole suggests that the delay was relevant to a consideration of whether the appellant had suffered an injury to the left shoulder, rather than whether he had developed a consequential condition.
The Arbitrator’s analysis of the evidence and the weight he attached to the evidence placed a higher bar than that required to prove a causal connection between a compensable injury and the subsequent development of symptoms in another body part.
It follows that the Arbitrator erred by requiring the appellant to establish some type of pathological change to have occurred in order to make the left shoulder condition compensable. Further, the Arbitrator erred in requiring the medical evidence to identify an injury and looking to the medical experts to provide a diagnosis. Such an approach is inconsistent with the authorities of Moon, Kumar and Brennan relied upon by the appellant, as well as a number of other Presidential decisions.
The matter requires re-determination. Whether the appellant’s left shoulder condition resulted from the right shoulder injury is a factual determination. In addition, the respondent has raised an issue in respect of the reliability of the appellant’s evidence. In the circumstances, I am of the view that it is appropriate for the matter to be re-determined by an arbitrator rather than at the appellate level and the matter is to be remitted accordingly.

DECISION

Paragraph two of the amended Certificate of Determination dated 20 September 2019 is revoked.
The matter is remitted to another arbitrator for re-determination of whether the left shoulder condition result from the injury to the right shoulder on 5 May 2015.

Elizabeth Wood

DEPUTY PRESIDENT

6 February 2020