Shipley v Visscher Caravelle Australia Pty Limited - [2025] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Shipley v Visscher Caravelle Australia Pty Limited [2025] NSWPICPD 42
APPELLANT:	Troy Shipley
RESPONDENT:	Visscher Caravelle Australia Pty Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A3-W456/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	20 May 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 December 2024 is revoked. 2. The matter is remitted to a different non-Presidential member for redetermination.
CATCHWORDS:	WORKERS COMPENSATION – Factual error, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 – the drawing of inferences, Luxton v Vines [1952] HCA 19; 85 CLR 352; Fuller-Lyons v New South Wales [2015] HCA 31; Flounders v Millar [2007] NSWCA 238
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Chadwick Lawyers
Respondent:
Mr J Beran, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Shipley v Visscher Caravelle Australia Pty Ltd [2024] NSWPIC 722
MEMBER:	Ms J Toohey
DATE OF MEMBER’S DECISION:	31 December 2024

INTRODUCTION AND BACKGROUND

Troy Shipley (the appellant/worker) was employed by Visscher Caravelle Australia Pty Ltd (the respondent/employer) as a storeman. He alleges two injuries in that employment. On 31 January 2020 he was driving a forklift unloading shipping containers. He was unloading a pallet, it appeared unstable and he felt pain as he attempted to push it into a more stable position manually. He was off work to the end of February 2020 and resumed his normal work in March 2020, performing light duties for two weeks and then his pre-injury work. He stated he had neck, left shoulder and back pain. On 2 July 2020 he was manually moving large boxes of rugs, each weighing about 25 kilograms, from a container. As he lifted a box he lost his balance and fell. He stated he felt pain in the neck, left shoulder and back. He was off work to 20 August 2020 when he resumed on light duties. He came under the care of a neurosurgeon, Dr Hsu. After various conservative options were tried, in late 2021 Dr Hsu recommended surgery involving a cervical fusion. The appellant was examined by Dr Casikar, a neurosurgeon, at the request of the employer’s insurer, on 10 February 2022. On 28 April 2022 the insurer, relying on Dr Casikar’s report, declined liability for the cervical fusion.[1]
[1] Appellant’s statement, 27/7/22, Application to Resolve a Dispute (ARD), pp 20–27. Dispute notice 28/4/22, ARD, pp 1–11.
The appellant claims the cost of the surgery recommended by Dr Hsu, involving spinal decompression and fusion at C6/7 and C7/T1.[2]
[2] Dr Hsu’s report 10/8/22, ARD, pp 169–170.
The proceedings were listed before Member Wynyard on 21 March 2023. The Commission issued a Certificate of Determination dated 19 May 2023.[3] Member Wynyard said the appellant may have injured his cervical spine on 31 January 2020, but the effects of such an injury were “probably self limiting”.[4] Member Wynyard described the proposition that the cervical spine was injured in the accident on 2 July 2020 as erroneous.[5] Member Wynyard made an award in the employer’s favour.[6]
[3] [2023] NSWPIC 229 (Wynyard reasons).
[4] Wynyard reasons, [133].
[5] Wynyard reasons, [138].
[6] Wynyard reasons, [139].
The worker instituted a Presidential appeal which came before the President, Phillips DCJ. His Honour issued a decision dated 14 August 2023.[7] Regretfully, due to unknown technical difficulties, there was “no recorded audio or transcript of the hearing that took place before the Member on 21 March 2023”. His Honour concluded that in the circumstances it was not possible to fairly decide the matter on appeal, in the absence of a transcript. His Honour remitted the matter to be listed before another member for rehearing.[8]
[7] [2023] NSWPICPD 46 (Phillips P appeal).
[8] Phillips P appeal, [24]; [27].
The matter was listed before Member Homan on 19 October 2023. The matter proceeded on the documents, no oral evidence was called, counsel addressed. The Commission issued a decision dated 3 November 2023.[9] Following a review of the evidence, Member Homan was satisfied the worker suffered injury to his cervical spine on 31 January 2020 and that employment was a substantial contributing factor to that injury.[10] She was satisfied the injury on 31 January 2020 contributed in a material way to the need for surgery. Member Homan was satisfied the surgery proposed by Dr Hsu was reasonably necessary as a result of that injury.[11] She ordered the employer to pay the costs of and incidental to that surgery.[12] Member Homan was not satisfied the appellant had established the occurrence of injury to the cervical spine on 2 July 2020, in respect of which she made an award for the employer.[13]
[9] [2023] NSWPIC 585 (Homan reasons).
[10] Homan reasons, [176]–[178].
[11] Homan reasons, [212].
[12] Homan reasons, [224]–[226].
[13] Homan reasons, [191]–[192].
The employer then brought a Presidential appeal against the decision of Member Homan. This was determined in a decision of Acting Deputy President Perry dated 9 September 2024.[14] The appellant employer raised two grounds; the Acting Deputy President upheld the second of these, which was found to have involved procedural unfairness. The Acting Deputy President, applying Stead v State Government Insurance Commission,[15] concluded he was “… not satisfied that the procedural fairness breach in the last sentence of [201] [of the Member’s decision] could not possibly have made a difference to the result, nor that this would inevitably result in the same orders being made at a later hearing.” The Acting Deputy President also referred to difficulties with the transcript. He concluded the matter should be remitted to another member for redetermination.[16]
[14] [2024] NSWPICPD 58 (Perry reasons).
[15] [1986] HCA 54; 161 CLR 141, 145.
[16] Perry reasons, [131], [144]–[145].
On remitter, the matter was listed for hearing before Member Toohey on 11 November 2024. Mr McManamey, counsel, appeared for the worker and Mr Beran, counsel, appeared for the employer. The Member rejected an application by the worker’s counsel to admit a further statement by the worker.[17] Both counsel addressed and the Member reserved her decision. The Commission issued a Certificate of Determination dated 31 December 2024, accompanied by her reasons.[18] She found the worker suffered injury on 31 January 2020, involving aggravation of a pre-existing condition, to which employment was the main contributing factor. She found the effects of that injury had resolved and it did not make a material contribution to the need for the proposed treatment. She made an award in the respondent’s favour on the allegation of injury to the cervical spine on 2 July 2020. The claim for the cost of the proposed treatment failed. The worker brings the present appeal against that determination.
[17] Transcript of hearing, 11/11/24 (T), T 9.7–13.
[18] Shipley v Visscher Caravelle Australia Pty Ltd [2024] NSWPIC 722 (reasons).

THE MEMBER’S REASONS

The Member gave reasons for rejecting the tender of an additional statement by the worker.[19] The Member summarised the worker’s statement dated 20 July 2022.[20] She summarised medical material produced from NSW Ambulance, Blacktown Hospital, Dr Yousaf and Ms Barton, physiotherapist.[21] The Member summarised the medical reports from Dr Yousaf, Dr Hsu, Dr Smith, Dr Nahza, Dr Duckworth, Dr Casikar, and Dr Bentivoglio.[22] The Member summarised the submissions by Mr McManamey[23] and Mr Beran.[24] She set out passages from a number of settled authorities dealing with the proof of injury, causation and the recovery of the cost of medical or related treatment pursuant to s 60 of the Workers Compensation Act 1987.[25]
[19] Reasons, [12]–[17].
[20] Reasons, [21]–[40].
[21] Reasons, [41]–[81].
[22] Reasons, [82]–[118].
[23] Reasons, [119]–[137], [161]–[164].
[24] Reasons, [138]–[160].
[25] Reasons, [168]–[171].
The Member set out the question to be determined:
“I have to determine whether Mr Shipley sustained injury to his cervical spine on 31 January 2020 and/or 2 July 2020 and if so, whether the treatment proposed by Dr Hsu is reasonably necessary as a result of either injury.”[26]
[26] Reasons, [167].
The Member dealt with the issue of whether the worker suffered ‘injury’ in the incident on 31 January 2020. She referred to the lack of independent evidence of the effect of medication given to the worker on 31 January 2020. She said it could not be inferred the worker’s recollection was impaired by strong medication, nor that he was lucid while being treated by ambulance officers. She said the ambulance officers suggested he was “reasonably so”. She referred to a line of authority that included Mason v Demasi,[27] in which Basten JA said that apparent inconsistencies between an applicant’s testimony and those in medical records should be treated with caution for a range of reasons. The Member noted that Dr Yousaf’s notes on 3 February 2020 recorded “Back and neck injury – work cover”. The Member noted Dr Yousaf’s note on 2 March 2020 recorded “initially neck pain was not much but now cervicogenic headaches”. The Member noted the worker was referred for a CT scan of the cervical spine on 2 March 2020; neck symptoms were reported within five weeks of the incident “sufficient for Dr Yousaf to refer him for a scan”. The Member found that the worker:
“… suffered injury to his cervical spine on 21 [sic, 31] January 2020 by way of aggravation of pre-existing degenerative change. There is no suggestion of any other factor contributing to his injury. I am satisfied that his employment was the main contributing factor to the aggravation.”[28]
[27] [2009] NSWCA 227.
[28] Reasons, [173]–[179].
The Member found this injury “was relatively minor and that it resolved within a relatively short time”. It was not included in the physiotherapy referral of 28 February 2020 nor mentioned in the physiotherapist’s report. The worker returned to work in March 2020 and was cleared for pre-injury duties on 24 April 2020. He did not see a doctor for neck pain for a further seven months. There was no mention of the cervical spine in the records of Dr Yousaf or the physiotherapist until the further injury on 2 July 2020. The next mention of the cervical spine in the material from the physiotherapist or Dr Yousaf was “not until 2 November 2020”.[29]
[29] Reasons, [180]–[182].
The Member dealt with the second alleged injury of 2 July 2020. She referred to the respondent’s submission that there were “varying descriptions of exactly what he was doing at the time”. The respondent referred to descriptions of injury when lifting one or more boxes, or of falling when lifting a box. The Member said there were limits to how much significance attached to such variations when they were not the subject of cross-examination. She said they assumed “some significance” in the absence of clear medical opinion on the mechanism of the neck injury. Dr Yousaf’s records recorded eight consultations from 24 July 2020 to 16 October 2020 which referred to back pain and thoracic pain, but not cervical pain. Referrals to physiotherapists by Dr Yousaf did not mention the cervical spine; a case conference with the insurer on 16 October 2020 referred to thoracic and low back pain with radicular pain. Dr Yousaf’s referral to Dr Hsu on 16 October 2020 referred to thoracic and lower back pain. The Member said it was not until 2 November 2020 that Dr Yousaf noted “neck stiffness” and “has been in pain”. The Member noted that Dr Yousaf’s referral to a psychologist at that time was for management of “anxiety and depression associated with back injury”.[30]
[30] Reasons, [184]–[190].
The Member referred to Dr Yousaf’s report, in which the doctor said that the neck pain and stiffness after the second injury “was not very obvious early, possibly due to back and thoracic pain being the major source of pain”. The Member said this did not “account adequately for the absence of any mention of it for four months”. The Member referred to Dr Dang, physiotherapist, who on 18 August 2020 reported to Dr Yousaf that the worker gave a history of feeling a twinge in his lower back while lifting and carrying cylinders at work. Dr Dang referred to signs and symptoms consistent with L5 disc irritation, there was no reference to cervical spine symptoms. The Member referred to reports from Mr Ting, physiotherapist, one dated 28 September 2020 and one undated (but postdating 7 October 2020). The first of these made no mention of neck pain. The second of these referred to low back pain since 2 July 2020. An undated report from Mr Ting referred to “alternating worsening pain between his cervical thoracic spine and lumbar spine/left leg”. The Member said this undated report postdated 7 October 2020.[31]
[31] Reasons, [191]–[194].
The Member referred to Dr Hsu’s reports. The first was dated 27 November 2020 and referred to “significant back pain both in the thoracic and lumbar region”. It did not refer to cervical spine symptoms. On 9 December 2020 Dr Hsu diagnosed “discogenic back pain and neck pain, and shoulder pain”. There was an MRI scan of the cervical spine in January 2021. On 18 February 2021 Dr Hsu reported that some of the worker’s symptoms were “likely related to his cervical spine”. On 20 October 2021 Dr Hsu reported that a recent MRI showed “significant disc pathology at C6-7 and C7–T1”. The Member said that Dr Hsu, in her view, had “not adequately explained causation by reference to the mechanism of injury, the relationship to the pre-existing condition or the relationship to the left shoulder”.[32]
[32] Reasons, [195]–[196].
The Member referred to Dr Smith’s reports dated 17 February 2021 and 17 May 2021. Dr Smith, a hand and wrist surgeon, reported to Dr Yousaf on 17 February 2021.[33] He gave the diagnosis as “potential cervical spine problem and left shoulder SLAP lesion with AC joint irritability”. He described the cervical spine as one of the “potential pain generators”. Reporting on 22 March 2021, Dr Smith said he reviewed the worker regarding his “left shoulder and neck pain”. The worker was due to see a spinal surgeon regarding his neck. The Member described the doctor’s opinion as “tentative with regard to the cervical spine”.[34]
[33] ARD, pp 88–89.
[34] Reasons, [197].
The Member referred to Dr Duckworth’s report dated 29 November 2021. Dr Duckworth specialised in shoulder and elbow surgery. This report described a history of injury in January 2020, in which the worker “felt an explosion from his neck, down his back and into his left shoulder”. The worker’s neck appeared to be the main problem. Dr Duckworth suggested the worker continue with his plans for surgery under Dr Hsu’s care and return for review after the neck surgery “to see how much of the pain is coming from his shoulder”. The Member commented that Dr Duckworth did not appear to have a full history, including the periods in which the clinical records did not mention the cervical spine.[35]
[35] Reasons, [198].
The Member dealt with the reports of Dr Casikar, in the insurer’s case. Dr Casikar said the symptoms and clinical examination suggested the main injury was a soft tissue injury to the left shoulder, and that neck pain was due to constitutional cervical spondylosis which had not been aggravated by employment. In a later report Dr Casikar said that, in the absence of clinically verifiable neurological finding, the neck pain was due to soft tissue injury to the shoulder.[36]
[36] Reasons, [199]–[200].
The Member referred to the reports of Dr Bentivoglio, a neurosurgeon qualified in the worker’s case. He reported on 9 May 2022 after seeing the worker on 28 April 2022. The Member said Dr Bentivoglio took a history that the worker developed “neck pain going into the left shoulder again and low back pain”. The doctor noted an MRI scan on 28 January 2021 showed “a left C6/7 disc prolapse compressing the C7 nerve root and the C7/T1 level was thought to be normal”. A second MRI on 24 August 2021 showed “multi level degenerative disc disease in his cervical spine and disc bulges at C6/7 and C7/T1”. Dr Bentivoglio said there was “an exacerbation of his pre-existing degenerative disease which was asymptomatic before the work injury on 31 January 2020 to his cervical spine”. The doctor said he could not assess the right shoulder as he was not an orthopaedic surgeon.
The Member commented that Dr Bentivoglio did not have a full history of the second incident. The doctor did not “come to grips” with the absence of neck symptoms for a period of four months following the incident. He did not consider whether the natural progression of the degenerative disease could account for the symptoms when he saw the worker. He did not explain the mechanism of injury. He did not come to grips with any relationship with the left shoulder condition.[37]
[37] Reasons, [201]–[204].
The Member said she accepted there were pre-existing degenerative changes in the cervical spine, which were aggravated by the incident on 31 January 2020. She found the effects of that injury resolved within a short time. Any need for treatment did not result from that injury. The Member found the worker had not discharged his onus of proving he injured his cervical spine on 2 July 2020. The Member preferred Dr Casikar’s opinion that the cervical spine condition was due to the progression of degenerative change and not to the injury on 2 July 2020. The Member concluded the worker’s claim for the cost of the proposed treatment of his cervical spine must fail.[38]
[38] Reasons, [205]–[208].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The decision is not interlocutory.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    At paragraph [180] of the reasons the Member erred in concluding the injury the appellant sustained to his cervical spine on 31 January 2020 was relatively minor and resolved within a short time (Ground No. 1).
(b)    The Member erred in fact and law in finding at paragraph [205] of the reasons that the appellant did not sustain an injury to his cervical spine as a result of the lifting incident on 2 July 2020 (Ground No. 2), and
(c)    The Member erred in fact and law in rejecting the evidence of all doctors with the exception of Dr Casikar, on the basis that the doctors’ opinions were undermined by the fact they allegedly did not have the correct history (Ground No. 3).

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

In Raulston v Toll Pty Ltd,[39] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[40] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[41]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[42]
[39] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[40] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[41] [1996] HCA 140; 140 ALR 227.
[42] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[43] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[44]
[43] [2020] NSWCA 54 (Hill).
[44] Hill, [20].
In Northern NSW Local Health Network v Heggie[45] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.

GROUND NO. 1 – THE FINDING THE INJURY ON 31 JANUARY 2020 WAS RELATIVELY MINOR AND RESOLVED

[45] [2013] NSWCA 255; 12 DDCR 95, [72].

Appellant’s submissions

The appellant submits the finding that the injury on 31 January 2020 was “relatively minor” was uncorroborated, as was the finding that it resolved within a short time. The appellant submits there was not medical evidence to support the findings. He additionally submits the meaning of “within a short time” is unexplained. The appellant submits there are many injuries that appear to be relatively minor but persist and progress to a more serious condition. The appellant submits this classically occurs with ‘aggravation’ type injuries.[46]
[46] Appellant’s submissions, [10]–[11].
The appellant submits the finding at [180] of the reasons is premised on the following:
(a)    the referral to the physiotherapist on 28 February 2020 did not refer to the cervical spine (reasons at [180]);
(b)    the cervical spine was not referred to in the report of the physiotherapist (reasons at [180]);
(c)    the appellant returned to work in March 2020 and was “apparently cleared for pre-injury duties on 24 April 2020” (reasons at [181]), and
(d)    the clinical notes of the general practitioner (Dr Yousaf) and the physiotherapist did not refer to the cervical spine between 18 March 2020 (a consultation with Dr Yousaf) and 2 November 2020 (reasons at [182]).
The appellant refers to the reasons at [181]. The Member said the appellant resumed work in March 2020, and on the Member’s understanding was able to return to full duties in April 2020, indicative of the injury having resolved. The appellant submits this was inconsistent with his statement at [18] where he said:
“On my resumption of work in March 2020, I was experiencing pain in my neck, left shoulder and back. This was mild and interfered with my ability to perform my full duties. I took regular breaks to relieve my pain levels before resuming work. I took no further time off work”.
The appellant also refers to the notes of Dr Yousaf dated 18 March 2020 which refer to the return to work. The relevant parts of the note are quoted at [49] below.
The appellant submits the above confirms the appellant remained symptomatic and his symptoms were exacerbated after his return, such that he needed regular rest breaks. The appellant submits that neither the statement nor the medical evidence indicated his symptoms had resolved. A return to full duties did not mean that the appellant was entirely free of neck pain. The appellant submits the Member referred to the evidence of continuing pain and did not give reasons for not accepting such evidence. She did not refer to any evidence or medical opinion that the effects of the original injury had ceased.[47]
[47] Appellant’s submissions, [12]–[15].
The appellant refers to the reasons at [180] and [182], in which the Member utilised the referral to the physiotherapist dated 28 February 2020, and the absence of contemporaneous complaint of the cervical spine in the records of Dr Yousaf and the physiotherapist. The appellant submits the Member treated this material as “determinative” that the injury of 31 January 2020 had resolved. The appellant refers to Waterways Authority v Fitzgibbon[48] in which the High Court suggested the need for caution in utilising medical notes unsupported by oral evidence. The appellant refers to other authorities to similar effect, and quotes the following from the reasons of Brereton JA in Norrington v QBE Insurance (Australia) Limited:
“It is not in doubt that an assessor, and a review panel, is entitled, in deciding the question of causation, to consider, and to give weight to, contemporaneous medical records. The absence of any record of a complaint of particular symptoms following an accident might be a powerful indicator that a particular injury was not associated with the accident. On the other hand, it is not decisive: there are many reasons why a complaint might not be made, or recorded, promptly following an incident.”[49]
[48] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (Waterways Authority).
[49] [2021] NSWSC 548, [40].
The appellant submits that, in any event, the Member’s conclusion on this issue was inconsistent with other evidence the Member had accepted, in concluding there had been an injury to the cervical spine. The appellant refers to Dr Yousaf’s notes which were relied on as evidence of continuing neck pain in March 2020, subsequent to the physiotherapy referral. The appellant submits Dr Duckworth (who was considering the left shoulder) was given the history of neck pain since the January 2020 injury. Dr Duckworth considered the shoulder pain was in part due to the neck injury. The appellant submits the Member failed to consider whether the shoulder symptoms were evidence of an ongoing neck injury, as Dr Duckworth and Dr Hsu had concluded.[50]
[50] Appellant’s submissions, [16]–[17].

Respondent’s submissions

The respondent notes the finding of ‘injury’ was one of an aggravation of a pre-existing condition of the cervical spine. It submits that corroboration is not a requirement in civil law.[51] The correct legal test is that identified by the Member, did she feel actual persuasion as to the elements of the appellant’s claim.[52] The respondent submits the Member cogently analysed the contemporaneous records at [180] and concluded the aggravation was “relatively minor and resolved”. She gave reasons based on the evidence.[53]
[51] Citing Chanaa v Zarour [2011] NSWCA 199 (Chanaa), [86].
[52] Reasons, [168].
[53] Respondent’s submissions, [6].
The respondent accepts that caution is required in considering contemporaneous medical records. The respondent submits the context in which records were used in Waterways Authority was with respect to positive assertions made by a plaintiff, which is not the situation in the current matter. The respondent submits the correct approach is that noted in Mason v Demasi,[54] which the Member referred to in her reasons at [175]. It submits the Member’s conclusion regarding the extent of the appellant’s injury was consistent with this.[55]
[54] [2009] NSWCA 227 (Mason).
[55] Respondent’s submissions, [8]–[9].
The respondent refers to the Member’s alleged failure to properly consider the reports of Dr Duckworth and Dr Hsu. It submits the Member turned her mind to Dr Duckworth’s report at [198] of the reasons. She referred to a lack of reporting in the clinical notes. She said Dr Duckworth did not appear to have a full history, including the periods in the clinical notes where the cervical spine was not mentioned. The respondent submits the Member turned her mind to Dr Hsu’s report at [196] of the reasons, where she said that Dr Hsu had not adequately explained causation. The respondent submits the appellant bore the onus and has not proven error, in the Member’s conclusion that the injury of 31 January 2020 resolved within a short time.[56]
[56] Respondent’s submissions, [10]–[11].

Consideration

The Member recorded the evidence relevant to the cervical spine injury of 31 January 2020 in some detail. She referred to the worker’s statement in which he described a “crack in my neck and pain in my left shoulder” at the time of the incident. He stopped working immediately and said he experienced “very significant pain in my neck, in my left shoulder and in my back”. On discharge from hospital, the worker states he complained to Dr Yousaf of neck and left shoulder pain. He was given about four weeks off work (to the end of February 2020) and prescribed Endone. On resumption he performed light duties for one week and then his pre-injury duties. He said he had continuing neck and left shoulder pain, which was mild but interfered with his ability to perform his full duties, and he took breaks to relieve pain. The Member referred to the ambulance and hospital records which referred to back pain and thoracic pain but not neck pain. The Member referred to Dr Yousaf’s initial entry on 3 February 2020 which she said recorded “back and neck injury”. Dr Yousaf’s entry on 2 March 2020 included “neck pain”, “cervicogenic headaches”, a limited range of neck movements, and “tender at C2”. On 2 March 2020 Dr Yousaf referred the worker for a CT scan of the cervical spine. Dr Yousaf’s note on 18 March 2020 noted the worker had been back at work, the doctor noted he was on “light duties with breaks” and “after 4 hrs neck pain”. On 24 April 2020 Dr Yousaf recorded the worker was “improved” and “nearly back to normal”. The next entry in Dr Yousaf’s records was 10 July 2020, which followed the work injury on 2 July 2020. The focus of Dr Yousaf’s records thereafter moved more to the worker’s back.[57]
[57] Reasons, [22]–[23], [48]–[56].
The Member referred to Dr Yousaf’s clinical note on 2 November 2020 which referred to “neck stiffness” and “has been in pain”. On 30 November 2020 Dr Yousaf, making a referral to a physiotherapist, recorded “significant left side muscle stiffness paraspinal along cervical and thoracic spine”. On 27 January 2021 the Member recorded there was a request for shoulder and neck imaging. There was a referral to Dr Smith, a pain specialist, “for opinion and management of left shoulder pain associated with neck pain and thoracic pain after work cover injury”.[58] An MRI scan of the cervical spine on 28 January 2021 demonstrated “degenerative changes at C6/7 level where there was impingement of traversing left C7 nerve root. Clinical correlation with dermatome or distribution of symptoms was suggested.” On 24 February 2021 the Member recorded the worker was referred to Dr Nahza, a pain specialist, for “opinion and management of neck pain since workplace injury nearly 12 months ago”. He had neck injections. On 30 August 2021 the worker was referred to Dr Hsu, a neurosurgeon, with “significant neck pain with disc bulge at C8 and radicular bilaterally in C8 distribution”.[59]
[58] Reasons, [64], [66], [68].
[59] Reasons, [69]–[74].
It is clear from the above, taken from the summary in the Member’s reasons, that there were complaints of neck pain commencing from 31 January 2020. The appellant’s submissions on this ground take issue with the Member’s conclusion that the effects of the injury to the neck of 31 January 2020 did not continue.
The reasons at [180] to [181] read:
“180. That said, the evidence indicates that the injury to Mr Shipley's cervical spine was relatively minor and that it resolved within a relatively short time. It was not included in the referral to the physiotherapist on 28 February 2020 or mentioned in the physiotherapist’s report. I do not agree with Mr McManamey that the physiotherapist only treated the thoracic spine because that [was] the body part mentioned in the referral. If the cervical spine had been sufficiently serious, it is reasonable to infer that she would have treated it even if not mentioned in the referral. I find its absence reflects that it was a relatively minor aggravation that resolved within a short time.
181. This finding is supported by the fact that Mr Shipley returned to work in March 2020 and was apparently cleared for pre-injury duties on 24 April 2020. To the extent that he had any further symptoms at all, they did not interfere with his ability to perform full duties. He says he took regular breaks to relieve the pain but he took no further time off work, and he did not see a doctor regarding neck pain for approximately another seven months.”
The appellant submits the Member’s finding that the injury of 31 January 2020 was “relatively minor” was “uncorroborated”. The respondent refers to Chanaa v Zarour in which Campbell JA (Bathurst CJ and Tobias AJA agreeing) said:
“The criminal law requires certain types of evidence to be corroborated, and there is an extensive case law concerning what sorts of evidence are capable of providing corroboration. However, in the civil law corroboration is not a technical term, or a legal requirement.”[60]
[60] Chanaa, [86].
The appellant’s point appears to be that the finding that the injury of 31 January 2020 was “relatively minor” was not supported by direct evidence to that effect.
The appellant submits the finding at [181] was inconsistent with the appellant’s statement, dated 27 July 2022, at [17] to [18]. The appellant there said that he resumed “full pre-injury duties” following two weeks of light duties from March 2020, but also said that mild neck, left shoulder and back pain interfered with his ability to perform full duties.[61] The appellant makes the point that being cleared for full duties did not necessarily mean that his cervical symptoms had ceased nor that the cervical injury had resolved.[62] The appellant also submits that the Member referred to evidence of continuing pain but did not give any reasons for not accepting such evidence. The appellant submits the Member did not refer to evidence or medical opinion that the effects of the original injury had ceased.[63] These points made by the appellant are valid and involve error in the fact-finding process.
[61] ARD, p 21.
[62] Appellant’s submissions, [14].
[63] Appellant’s submissions, [15].
There were potentially various explanations of why the cervical spine was not included in the physiotherapy referral on 28 February 2020, and why the physiotherapist did not treat it, apart from the proposition that the effects of the cervical spine injury had, at that time, ceased or substantially ceased. It may be that physiotherapy for some medical reason was not a suitable treatment for the cervical spine symptoms. It may be that the condition at that point in time was progressing satisfactorily in the absence of active treatment. No doubt other explanations could be postulated. In Luxton v Vines Dixon, Fullagar and Kitto JJ dealt with the drawing of an inference in a civil case:
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”[64] (excluding references)
[64] [1952] HCA 19; 85 CLR 352 (Luxton), [8], 358.
In Fuller-Lyons v New South Wales the High Court said an inference of fact involves “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”.[65] In Flounders v Millar Ipp JA said that “[t]he choice between conflicting inferences must be more than a matter of conjecture.”[66]
[65] [2015] HCA 31, [46].
[66] [2007] NSWCA 238, [35].
The inference that the referral was not made, and physiotherapy treatment was not given, because the cervical spine condition was not sufficiently serious, was not properly available in the circumstances. It was a possible explanation for the known facts. The reasons at [180] involved speculation regarding the reason why the referral did not include the cervical spine, and additional speculation regarding whether the physiotherapist would have treated the cervical spine in the absence of it being the subject of a referral, if the condition was sufficiently serious. This was a “mere matter of conjecture”, to adopt the words used in Luxton.
There was lay evidence from the appellant, in his statement dated 27 July 2022 at [17] to [18], of ongoing cervical spine symptoms which the Member did not specifically reject. The way in which the finding at [181] is expressed appears to leave open the possibility that there were some ongoing cervical symptoms after the injury on 31 January 2020. The appellant stated that this pain was in his neck, left shoulder and back, it was mild and interfered with his ability to perform his full duties. The appellant’s submissions additionally referred to the clinical note of Dr Yousaf dated 18 March 2020,[67] which postdated the relevant physiotherapy referral by two to three weeks and postdated the worker’s return to work. It included the following:
“went to work full day Monday and yesterday
was in pain lunch time
was on light duties with breaks
after 4 hrs neck pain and pain behind back of leg
yesterday went to work
by mid day was very stiff”.
[67] ARD, pp 200–201.
The worker’s presentation to Dr Yousaf on 18 March 2020 was inconsistent with the Member’s conclusion, based on the physiotherapy referral dated 28 February 2020, that the effects of the cervical spine injury of 31 January 2020 had then ceased or substantially ceased. It was apparently credible evidence and the Member did not reject it.
The reasons at [182] referred also to the absence of cervical spine complaints, in the records of Dr Yousaf and the physiotherapist, from 24 April 2020 (when the appellant was cleared for pre-injury duties) until after the second pleaded injury of 2 July 2020. The reasons at [182] stated “The first mention is not until 2 November 2020.”

Dr Yousaf’s notes referred to a consultation with the worker on 24 April 2020, with a note “pt is improved nearly back to normal want to go back to preinjury duties discussed back care and precautions if symptoms recur within next few weeks then review”. This was consistent with significant symptomatic improvement, but not with complete resolution at that time of the effects of the cervical spine injury on 31 January 2020.
The next consultation recorded in the doctor’s notes was on 10 July 2020, which postdated the second injury of 2 July 2020 and gave a history of that injury: “Patient felt a sharp pain during lifting and then back pain started radiating down to left leg”. The note stated: “both L5 and T7-8 tender ++”. It included “previous throacic [sic, thoracic] sprain exacerbation of previous area pain tender T7-8”. There were notes dated 21 July 2020, 24 July 2020, 31 July 2020, 10 August 2020, 14 August 2020, 28 August 2020, 22 September 2020, 6 October 2020 and 16 October 2020. These entries included references to lumbar and thoracic symptoms, but not clear reference to cervical symptoms. The period from 24 April 2024 to the date of the second injury (2 July 2020) was relatively short. From 2 July 2020 to 2 November 2020 there were significant recorded complaints of back and leg pain, psychological difficulties and treatment with Panadeine Forte. The entry on 2 November 2020 included a reference to “neck stiffness”.[68]
[68] ARD, pp 203–208.
The matters relied on by the Member at [180] to [181] of the reasons did not constitute direct proof that the effects of the cervical spine injury of 31 January 2020 had ceased within a “relatively short” (although indeterminate) time. The evidence was consistent with a neck injury on 31 January 2020 which had improved but remained mildly symptomatic as at 24 April 2020. The appellant’s evidence of his condition thereafter, until 2 July 2020 (the date of the second injury) was not rejected by the Member and was inconsistent with the finding that the effects of the injury of 21 January 2020 had ceased. The identified errors went to matters that were described as supporting the factual findings at [180] to [181] of the reasons. I accept that these errors undermined the basis of the Member’s factual conclusion at [180] to [181], that the cervical spine injury was “relatively minor” and resolved within a short time.
Ground No. 1 asserts factual error. The overall thrust of the appellant’s submissions on Ground No. 1 is to argue that there was not an appropriate evidentiary basis for the finding that the effects of the injury to the cervical spine on 31 January 2020 had ceased within a relatively short time. This is subject to s 352(5) of the 1998 Act. I accept that the appellant has demonstrated appealable factual error within the meaning of that provision.
Ground No. 1 succeeds.

RESOLUTION OF THE APPEAL

I have found error in respect of Ground No. 1. This is sufficient that it is appropriate the Certificate of Determination dated 31 December 2024 be revoked and the matter be remitted for redetermination by a different member. The matter potentially raises credit issues. There is overlap between the issues raised in the grounds and it is preferable that it be remitted to be redetermined on all issues.

DECISION

The Certificate of Determination dated 31 December 2024 is revoked.
The matter is remitted to a different non-Presidential member for redetermination.

Michael Snell
DEPUTY PRESIDENT

20 May 2025