State of New South Wales (Sydney Local Health District) v Edwards - [2024] NSWPICPD 83

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Sydney Local Health District) v Edwards [2024] NSWPICPD 83
APPELLANT:	State of New South Wales (Sydney Local Health District)
RESPONDENT:	Geoffrey Frederick Edwards
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W6976/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	13 December 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The respondent’s application for leave to adduce additional evidence is refused. 3. The appellant’s application to raise the additional ground of appeal, Ground Four, is granted. 4. The appellant’s application to raise the additional ground of appeal, Ground Six, is refused. 5. The Member’s Certificate of Determination dated 11 December 2023 is revoked. 6. The dispute is remitted to a different non-Presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – injury – distinction between a personal injury pursuant to s 4(a) and a disease injury pursuant to s 4(b) of the Workers Compensation Act 1987 – Rail Services Australia v Dimovski [2004] NSWCA 267 discussed – factual error – Whiteley Muir & Zwanenberg v Kerr (1966) 39 ALJR 505 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Turks Legal
Respondent:
Mr R Brown, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Edwards v State of New South Wales (Sydney Local Health District) (A1-W6976/23, 11 December 2023)

MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	8 December 2023

INTRODUCTION AND BACKGROUND

Mr Geoffrey Edwards (the respondent) commenced working for the State of New South Wales (Sydney Local Health District) (the appellant) at the Royal Prince Alfred Hospital in 1984 as a handyman/hospital assistant and for a period of time at Concord Repatriation General Hospital.
These proceedings concern a claim for a lump sum brought by the respondent pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 61% whole person impairment. The date of injury was pleaded as a deemed date of injury of 22 February 2021, which was the date upon which that claim was made. The respondent asserted injury to the lumbar spine, thoracic spine, cervical spine, left shoulder, left hip, right knee, left knee and scarring. He further asserted that, as a consequence of the left shoulder injury, he suffered from symptoms in his cervical and thoracic spine and, as a consequence of the left hip injury, his gait was altered, causing symptoms in the lumbar spine, left knee and right knee. The injury was said to be as a result of the “nature and conditions” of the respondent’s employment over the entire period of his employment, which the respondent described as involving heavy work such as shovelling, lifting, carrying, weight bearing, bending, crouching, pulling and pushing heavy objects and standing and walking on uneven surfaces.
The respondent had a complex history of injuries, some of which were the subject of prior proceedings for lump sum claims. Details of those injuries and the outcome of the claims are set out below in the summary of the evidence before the Member.
The current claim proceeded to conciliation and arbitration before a Member of the Personal Injury Commission (the Commission) on 1 December 2023. During the conciliation phase, the respondent sought to rely upon an alternate deemed date of injury of 12 March 2003 (a date relied upon in prior proceedings), however that application was refused. The respondent also indicated that he wished to rely upon s 4(b)(i) and s 4(b)(ii) of the 1987 Act, which respectively define injury as including the contraction of a disease or the aggravation, acceleration, exacerbation or deterioration of a disease. The sections also require the employment to be the main contributing factor to the disease (s 4(b)(i)) or the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s 4(b)(ii)). The Member granted the respondent leave to rely on those “disease” provisions.
The Member heard the submissions of the parties and on 8 December 2023 delivered an oral determination, in which he determined that he was satisfied that the respondent suffered a disease injury within the meaning of s 4(b)(i) of the 1987 Act and that the respondent’s employment was the main contributing factor to the disease injury. The Member applied s 15 of the 1987 Act in accepting the deemed date of injury to be 22 February 2021 and directed the dispute as to the degree of impairment to be remitted to the President of the Commission for referral to a Medical Assessor, with liberty to the parties to apply in respect of terms of the referral, noting that the assessment may be subject to a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) because of the injuries the subject of earlier claims.
The appellant appeals the Member’s Determination.

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.”
The appellant indicates that the appeal can be determined on the basis of the papers but considers that the Commission may be assisted by an oral hearing given the complexity of the legal issues arising in the dispute. The respondent submits that the appeal can be determined on the basis of the appeal documents.
I have had regard to Procedural Directions PIC2 and WC3; the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met.
The appellant submits that there is no requirement to satisfy the monetary threshold set out in s 352(3) of the 1998 because the appeal is from an interlocutory decision and leave to appeal pursuant to s 352(3A) of the 1998 Act is required.
The appellant cites no legislative provision or authority to support the notion that the monetary threshold does not apply.
In any event, the monetary threshold of $5,000 is clearly satisfied as the amount of compensation claimed in the Application to Resolve a Dispute (ARD) is $411,430.
The respondent agrees (correctly) that the decision is interlocutory in nature but submits that he does not oppose the granting of leave. That is, while the issue has been determined in respect of whether the injuries were injuries within the meaning of s 4(a) of the 1987 Act or constituted “disease” injuries as defined in s 4(b)(i) or s 4(b)(ii) of the 1987 Act, the dispute has not been finalised because the Member was required to refer the dispute about the degree of the respondent’s whole person impairment for assessment by a Medical Assessor. The parties’ agreement that the decision is an interlocutory decision is consistent with various Presidential authorities.[1] The appellant submits that leave to appeal should be granted because it is necessary and desirable to determine the dispute, and a successful appeal will eliminate the need for an assessment by the Medical Assessor.
[1] See P & O Ports Limited v Hawkins [2007] NSWWCCPD 87.
The respondent consents to the grant of leave to appeal.
I concur that a determination of the dispute on appeal is necessary and desirable for the proper and effective determination of the dispute. As the appellant submits, if the appeal is successful, it may be that there is no need for a medical assessment or, if there is found to be error on the part of the Member and the issues are re-determined, the referral to the Medical Assessor may be on a different basis.
I therefore grant leave to the appellant to bring the appeal.

FRESH OR ADDITIONAL EVIDENCE

Section 352(6) of the 1998 Act provides:
“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.”
The respondent seeks to adduce further evidence in the form of accounts rendered by Dr New which were directed to the appellant for payment. The respondent submits that the documents were not in evidence before the Member but are relevant to the issues raised on appeal in respect of the proposed Grounds Four and Five of the appeal, which assert that the appellant was surprised and was denied procedural fairness by the Member determining the matter on the basis that Dr New was the respondent’s treating specialist, rather than an independent medical examiner.
It is apparent from my summary of the evidence below, particularly that of Dr Gothelf and Dr Brighton, that it is abundantly clear that Dr New had treated the respondent and had seen him on several occasions. That evidence was before the Member. I am of the view that that evidence is sufficient of itself to show that the appellant should not have been surprised that the Member came to that conclusion.
The documents sought to be admitted do not go so far as to address the appellant’s complaint that it was denied procedural fairness by the Member failing to provide the appellant with the opportunity to make submissions about the weight to be afforded the evidence of Dr New.
In any event, the appellant concedes in its submissions in reply that Dr New was the respondent’s treating specialist and withdraws Ground Five of the appeal.
I am therefore not satisfied that the failure to grant leave would cause a substantial injustice to the respondent in those circumstances. The application to admit further evidence is refused.

THE EVIDENCE

The respondent’s statement evidence

The respondent made a number of statements.
In a statement dated 5 June 2008,[2] he advised that he commenced work with the appellant at Royal Prince Alfred Hospital in 1984. The respondent stated that he injured his:
(a)    left knee when picking up a box in the course of his employment. He was treated by the appellant’s doctor and had a short time off work;
(b)    left knee on 28 June 1995 on his way home from work, when he stepped from a bus and his left knee and leg collapsed;
(c)    left shoulder cleaning out gutters on 13 August 1996, was off work for a while and eventually returned to full duties;
(d)    left shoulder, with pain in his neck and back on 1 June 2000 when he fell over backwards while unloading a heavy piece of gyprock from a truck, and
(e)    left shoulder while swinging a mattock and shovelling, which led to arthroscopic surgery on 6 July 2001.
[2] Application to Resolve a Dispute (ARD), pp 7–9.
He stated that he continued to suffer pain in respect of injuries to his left leg, left knee, right leg, back, neck, left arm, and right arm, which affected his bowel function, sexual organs, and caused anxiety and depression.
The respondent provided a further statement dated 31 January 2020.[3] He stated that his employment with the appellant involved strenuous work that had affected his neck, left shoulder, elbows, back and left hip. He referred to the following injuries:
(a)    injury to both shoulders on 18 January 2013 when he was pulling and opening the heavy doors of a shipping container;
(b)    injury to his left hip, left ribs, chest and lower back on 23 July 2013 when he was hit by the tail gate of a truck which had opened;
(c)     injury to his left shoulder, arm, back and left hip on 13 September 2016 when he was carrying stock and fell backwards onto a heat blower;
(d)    injury to his neck and lower back on 6 April 2017 while assisting a delivery driver to unload a large roll of rubber weighing approximately 75 kilograms, and
(e)    injury on 18 July 2018 when he was carrying a heavy box down a passageway and, in order to let another worker past, swung around and struck his left arm and left elbow on a metal door frame.
[3] ARD, pp 4–6.
The respondent said that, after the last injury, he returned to his usual duties on 27 August 2018, but from 18 July 2019 he worked three days per week for four hours each day. He said he continued to experience symptoms in his left knee, left leg, left arm, left shoulder, neck and soreness in his right hip.
The respondent made a further statement dated 24 November 2021.[4] He described his employment with the appellant during the first seven years as requiring him to shovel coal and ash in the boiler room, which was hard work involving a lot of bending, squatting and twisting. He said that in the winter he would have to shovel the ash into wheelbarrows and then wheel the barrows, moving one hundred barrows per day. The respondent indicated that after seven years the boiler house closed and he was moved to the maintenance department, where he worked as a labourer and handyman, performing all sorts of work. He referred to the injuries on 26 August 1994, 28 June 1995, 1 June 2000 and said that on 17 October 2000 he felt pain while shovelling clay.
[4] ARD, pp 1–3.
An additional undated statement from the respondent described as a “deterioration statement” was in evidence.[5] He stated that he was experiencing widespread pain in many parts of his body which caused him restrictions, although he continued to work for the appellant on a full-time basis as a storeman but worked with difficulty because of his ongoing symptoms and restrictions. He advised that he had undergone surgery to his left knee and left shoulder and had a left hip replacement in 2011. He added that as a result of having to take pain relief medication, he had developed pain in his abdomen, constipation and diarrhoea, and as a consequence had been admitted to hospital on three occasions for treatment of diverticulitis.
[5] ARD, pp 10–11.

Medical Assessment Certificates

The Medical Assessment Certificate of Dr Drew Dixon, Approved Medical Specialist, dated 1 June 2004 was in evidence.[6] Dr Dixon noted the injuries claimed were:
(a)    injuries to the left knee on 26 August 1984, 28 June 1995 and 15 June 2003;
(b)    injuries to the left shoulder on 13 August 1996, 1 June 2000 and 17 October 2017, and
(c)    injuries to the left lower extremity (knee) and left upper extremity (shoulder) and 5% whole person impairment of the cervical spine resulting from the “nature and conditions” of the respondent’s employment with a deemed date of 12 March 2003.
[6] Reply to Application to Resolve a Dispute (reply), pp 3–14.
Dr Dixon assessed the injuries occurring prior to 1 January 2002 in accordance with the Table of Disabilities (which applied to those assessments) as follows:
(a)    Left leg at and above the knee:
(i)10% in respect of the injury on 26 August 1984;
(ii)0% in respect of the injury on 15 June 1993;
(iii)0% in respect of the injury on 28 June 1995;
(b)    Left arm at and above the elbow:
(i)8% in respect of the injury on 13 August 1996;
(ii)0% in respect of the injury on 1 June 1990;
(iii)0% in respect of the injury on 17 October 2000, and
(c)    5% of the neck in respect of the injury on 1 June 2000.
Dr Dixon assessed the respondent’s whole person impairment for injuries occurring on or after 1 January 2002, that is the injuries deemed to have occurred on 12 March 2003 as 2.33% of the left upper extremity, 2% of the left lower extremity, and 5% of the cervical spine.
Following the issue of the Medical Assessment Certificate, on 24 June 2004 an Arbitrator in the former Workers Compensation Commission (the former Commission) made orders for payment of compensation in accordance with those assessments.[7]
[7] Reply, p 15.
It appears that in 2008, the respondent brought further claims for permanent impairment pursuant to s 66 of the 1987 Act, which were again referred by the former Commission to Dr Drew Dixon, who issued a Medical Assessment Certificate. The respondent appealed the Medical Assessment Certificate to a Medical Appeal Panel, who revoked that Medical Assessment Certificate on 13 May 2009.[8] The Panel issued a fresh Medical Assessment Certificate on 13 May 2009 making the following assessments of the injuries occurring prior to 1 January 2002 (after deduction for prior losses):
[8] Reply, pp 18–31.
(a)    loss of efficient use or impairment of the left leg at or above the knee:
(i)5% as a result of injury on 28 August 1994, and
(ii)5% as a result of injury on 28 June 1995;
(b)    loss of efficient use or impairment of the left arm at or above the elbow:
(i)4% as a result of injury on 13 August 1998;
(ii)0% as a result of injury on 1 June 2000;
(iii)8% as a result of the injury on 17 October 2000, and
(c)    0% impairment of the neck as a result of injury on 1 June 2000.[9]
[9] Reply, pp 33–34.
The Panel also issued a Medical Assessment Certificate of the same date in respect of the respondent’s whole person impairment from injuries with a deemed date of 12 March 2003, assessing the respondent’s impairment of the cervical spine as 6% and left upper extremity as 3% (after deduction for any prior loss), with a total whole person impairment of 9%.[10]
[10] Reply, p 32.
In a Certificate of Determination issued on 26 June 2009, an Arbitrator of the former Commission awarded the additional compensation payable in respect of the assessments made, with no amount payable in respect of the deemed date of injury of 12 March 2003 because the assessment was the same as the previously compensated whole person impairment.[11]

The medical evidence

[11] Reply, p 35.

Dr Charles New, orthopaedic and spinal surgeon

Dr Charles New was described by the respondent in correspondence and in the respondent’s schedule of documents attached to the ARD as the respondent’s “Independent Medical Examiner.”
Dr New examined the respondent on 30 November 2020 and provided a report dated 21 December 2020 at the request of the respondent’s legal representatives.[12] He took a history of the respondent having worked for the appellant since 1984, for the first seven years as a handyman shovelling coal and ash but when the boiler room closed, he was employed as a general handyman, which involved heavy lifting of items weighing between 3 and 30 kilograms.
[12] ARD, pp 19–24.
Dr New took details of injuries occurring on:
(a)    26 August 1994, involving the left knee;
(b)    28 June 1995, also involving the left knee;
(c)    1 June 2000, to the left shoulder and neck;
(d)    17 October 2000, to the back and neck;
(e)    23 July 2013, involving the left hip, left ribs, chest and lower back;
(f)    13 September 2016, involving the left shoulder and arm, back and left hip;
(g)    6 April 2017, to the neck and lower back, and
(h)    18 July 2018, to the left forearm and left elbow.
Dr New also described the respondent as having “developed pain in his left hip” in September 2009.[13] He noted that the left hip symptoms were investigated, the investigation disclosed that the respondent suffered from osteoarthritis of the left hip, as well as some degenerative changes in the left knee. Dr New recorded that the respondent was referred to Dr Roger Brighton, orthopaedic surgeon, who performed a left hip replacement on 15 April 2011. Dr New noted that left shoulder surgery was performed by Dr Daniel Biggs, shoulder surgeon, in 2001. Dr New added that the respondent had suffered leg pain following an examination by Dr Robert Breit, orthopaedic surgeon, arranged at the request of the appellant in July 2019, which had not resolved. Dr New noted ongoing symptoms in all of the injured areas of the respondent’s body.
[13] Report of Dr New dated 21 December 2021, ARD, p 20.

Dr New performed a physical examination of the respondent and reviewed the MRI radiological investigation reports of the thoracic and lumbar spine undertaken on 13 October 2014 and 9 May 2017, the lumbar spine on 6 June 2019, an x-ray of the left hip on 17 January 2020 and a bone scan of the left hip on the same date.
Dr New concluded that the respondent suffered from “multiple musculoskeletal problems” and that the “nature and conditions” of his employment with the appellant over the whole 35 years of the respondent’s employment was “the main contributing cause, noting the specific accidents that [the respondent] has had.”[14]
[14] Report of Dr New dated 21 December 2021, ARD, p 23, [6]–[7].
In a separate report of the same date, Dr New opined that the respondent’s injuries to his left shoulder and left hip caused an alteration in the range of movement and strength in the cervical and thoracic spine and the left hip also caused an alteration in the range of movement and strength in the lumbar spine and knees, and those areas constituted consequential conditions resulting from the injuries described. Dr New provided assessments of the respondent’s whole person impairment in respect of each of the various injured body parts and the consequential conditions, arriving at a total of 61% whole person impairment.[15]
[15] ARD, pp 25–27.
Dr New provided a further report dated 20 June 2003 following a re-examination of the respondent.[16] Dr New confirmed that the history, diagnosis and prognosis provided in his early report remained unchanged. He advised that the natural history of the respondent’s musculoskeletal issues was that they would become progressively worse. He confirmed his previously expressed view that “the nature and conditions of [the respondent’s] employment with [the appellant] over 35 years has been the main contributing factor to his injuries, noting the specific accidents that he has had.”[17] In a separate document of the same date, Dr New confirmed his earlier opinion as to the degree of whole person impairment suffered by the respondent.[18]
[16] ARD, pp 30–32.
[17] Report of Dr New dated 20 June 2003, ARD, p 31.
[18] ARD, p 32.

Dr Brian Stephenson, orthopaedic surgeon

Dr Stephenson was qualified by the respondent’s former legal representatives to examine the respondent and provide a report. He provided a report dated 17 February 2020.[19] He noted the respondent’s list of “main” injuries were as follows:
[19] Reply, pp 36–51.
(a)    injury to the left knee picking up a box on 26 August 1994;
(b)    injury to the left knee getting off a bus on 28 June 1995;
(c)    injury to the left shoulder and arm while cleaning gutters on 13 August 1996;
(d)    injury to the left shoulder and neck on 1 June 2000 swinging a mattock and shovelling clay;
(e)    injury to the left leg, left arm, left shoulder, left hip and neck as a result of the “nature and conditions” of employment, with a deemed date of injury as 12 March 2003;
(f)    injury on 18 January 2013 while pulling and opening heavy shipping container doors;
(g)    injury on 23 July 2013, involving the left hip, left ribs, chest and lower back when hit by the tail gate of a vehicle;
(h)    injury on 13 September 2016, involving the left shoulder and arm, back and left hip when the respondent fell backwards onto a heat blower while carrying stock;
(i)    injury to the neck and lower back on 6 April 2017 when assisting a deliveryman to offload a large roll of rubber weighing approximately 75 kilograms onto the dock, and
(j)    injury to the left forearm and left elbow on 18 July 2018 when carrying a heavy box in a narrow corridor and hitting his left arm and elbow on a metal door frame.
Dr Stephenson referred to the Medical Assessment Certificate of Dr Dixon issued in 2004 and noted those assessments, as well as Dr Dixon’s reasons for assessment. Dr Stephenson reviewed the numerous radiological investigations undertaken over the years and an operation report provided by Dr Daniel Biggs, shoulder specialist, in respect of surgery to the left shoulder on 6 July 2001. He noted that the respondent had undergone a left hip replacement in April 2011 at the hands of Dr Roger Brighton. He further noted that the respondent had suffered another aggravation of his back condition on 28 March 2019 when opening heavy steel gates to an old lift.
Dr Stephenson medically examined the respondent. He referred to the Medical Assessment Certificate issued by the Medical Appeal Panel on 11 May 2009 and advised that the injuries occurring from 2013 onwards (listed at [46(f)] to [46(j)] above) were not included in the injuries assessed and would need to be pursued by way of claim which would include a deduction from the assessments to account for the earlier losses, in accordance with s 323 of the 1998 Act.
Dr Stephenson discussed the respondent’s capacity for work. He considered the question posed by the respondent’s legal representatives as to whether the respondent’s injuries had deteriorated. He advised that the question should not be considered in the light of the further injuries suffered between 2013 and 2018.
In a separate document, Dr Stephenson assessed the respondent’s whole person impairment resulting from the deemed date of injury of 12 March 2003 and the respondent’s loss of efficient use or impairment in respect of the injuries occurring on or before 1 June 2000.
Dr Stephenson provided a further report dated 6 March 2020.[20] He attended to the amendment of some minor typographical errors in his earlier report and proceeded to assess the impairments flowing from the injuries occurring between 18 January 2013 and 18 July 2018 inclusive, on this occasion including the lumbar spine.
[20] Reply, pp 54–60.

Dr Robert Breit, orthopaedic surgeon

Dr Breit was asked by the appellant to assess the respondent and provide an opinion. It appears that he was asked only to assess the back injury on 28 March 2019. He reported to the appellant on 25 July 2019.[21] Dr Breit referred to the injury to the back in 2017 when the respondent was lifting a heavy roll of rubber and the further aggravation on 28 March 2019 when opening the heavy steel gates of the goods lift.
[21] Reply, pp 61–64.
Dr Breit examined the respondent and reviewed the radiological investigations. He observed that there was some lumbar spondylosis demonstrated on the MRI scan but considered that the correlation between that pathology and the respondent’s symptoms was “poor”. He diagnosed “non-specific mechanical low back pain resulting from the incidents described.” Dr Breit considered that the respondent’s employment was a substantial contributing factor to the injury. He opined that there was some degenerative disease present and noted that there had been an earlier episode in 2017, however, he considered that the 2019 event was a totally separate event. He explained that, although there was some pre-existing spondylosis evident on the MRI scan, it was not possible to indicate whether or not the 2019 injury was an aggravation injury because the specific pathology could not be defined.
Dr Breit provided a further report dated 16 August 2019 in respect of the respondent’s allegation that the examination undertaken for the purpose of the earlier report caused the respondent’s left hip to become symptomatic. Dr Breit denied that anything he did during the examination might have caused the respondent issues with his hip. He considered that there might have been some aggravation of the back pain with referred pain to the hip due to some other event.[22]
[22] Reply, pp 66–67.

Dr Todd Gothelf, orthopaedic surgeon

The appellant also qualified Dr Todd Gothelf to provide a medico-legal opinion. He provided a number of reports. The first report was dated 27 April 2020.[23] Dr Gothelf reviewed the documentation provided to him by the appellant, which surprisingly included three treating reports from Dr New dated 14 January 2020, 31 January 2020 and 4 February 2020.
[23] Reply, pp 68–80.
Dr Gothelf recorded the history that the respondent’s work with the appellant involved a lot of labouring work, digging, lifting, carrying and repetitive work all day. He listed the injuries provided to him by the respondent in respect of injuries occurring between 26 August 1994 and 18 July 2018. He reviewed the clinical notes and reports recorded by the respondent’s treating general practitioner, Dr Akram Moussad, and provided the following summary of subsequent injuries:
“·     2 February 2018, L shoulder pain, physiotherapy
·        29 June 2018, lower back pain radiating to right hip, good ROM, endep, tramadol, Lipitor
·        19 July 2018, L elbow pain hit against aluminium door, review with x-ray. Soft tissue injury. Back to pre-injury duties.
·        8 August 2018, u/s left elbow, common flexor and extensor tendinosis, ulnar neuritis.
·        3 September 2018, 29 October 2018 still left elbow pain.
·        12 November 2018, pain settled.
·        23 March 2019, lower back pain at work, happened after lifting and closing the good’s lift door.
·        5 April 2019, lower back pain improving slowly.
·        17 May 2019, exacerbation of lower back pain.
·        1 June 2019, lower back pain, few days duration, getting worse, stiffness. Referred for MRI.
·        15 June 2019, MRI reviewed, analgesia, physiotherapy.
·        27 July 2019, Lower back pain, left hip pain since specialist examination. Referred to Charles New.
·        10 August 2019, lower back pain improved with physio.
·        4 September 2019 CT scan left hip - uncomplicated left total hip replacement.”[24]
[24] Dr Gothelf’s report dated 27 April 2020, reply, p 72.
Dr Gothelf referred to the reports of Dr New, noting that in the report dated 14 January 2020, Dr New indicated that this was the first consultation, and the respondent complained of pain in his back following an incident opening the heavy metal shutter on 28 March 2019. Dr Gothelf referred to a second report from Dr New dated 31 January 2020, in which Dr New recorded that the respondent complained of right hip pain following an examination by Dr Breit, and the third report dated 4 February 2020, in which Dr New recommended functional and vocational assessment, with restrictions on heavy lifting and bending.
Dr Gothelf reviewed the radiological investigations and performed a physical examination of the respondent. He diagnosed the respondent as suffering from a low back strain with exacerbation of pre-existing chronic lower back pain as a result of the incident on 28 March 2019. Dr Gothelf noted that the respondent stated that the pain in his lower back commenced in 2000 when he was unloading gyprock and that he had suffered pain ever since and the incident in 2017 unloading a large roll of rubber was the worst injury. Dr Gothelf further noted that the respondent had three recorded incidents of back pain on 23 July 2013, 13 September 2016 and 6 April 2017, the MRI scan dated 9 May 2017 showed mild dehydration of an L5/S1 disc protrusion and the MRI scan dated 6 June 2019 disclosed mild spondylotic changes at the L4/5 and L5/S1 levels.
Dr Gothelf expressed the view that the respondent’s current back pain was, on the balance of probabilities, related to the most recent injury as well as the earlier injuries.
In response to questions posed by the appellant, Dr Gothelf assessed the respondent’s whole person impairment of the cervical spine as 5%, the left upper extremity as a result of the deemed date of injury of 12 March 2003 as 5% and the lumbar spine also as 5%.
Dr Gothelf provided further reports dated 25 May 2020,[25] 26 August 2020,[26] 11 May 2021,[27] and 9 June 2021.[28] Those reports do not add anything further to the relevant matters recorded in Dr Gothelf’s first report, other than that in the report dated 25 May 2020, Dr Gothelf expressed the view that:
“[there] is insufficient scientific evidence in the literature to conclusively establish that any occupational or ergonomic risk factor is actually a medical cause of working-age adult low back pain”;[29]
and, in the report dated 11 May 2021, Dr Gothelf, referred to a further report from Dr New dated 9 April 2020, and opined that:
“Based upon the history received from [the respondent] the conditions discussed were the result of multiple frank injuries and not described as caused by the nature and conditions of injuries.”[30]
[25] Reply, pp 81–87.
[26] Reply, pp 88–96.
[27] Reply, pp 97–113.
[28] Reply, pp 114–117.
[29] Reply, p 83.
[30] Reply, p 106.

Historical treating specialists’ evidence

Buried towards the end of 797 pages of “evidence” attached to the ARD, much of which was of no assistance to the issues in dispute, were reports from Dr Daniel Biggs, orthopaedic surgeon, Dr George Nossar, occupational physician, Dr John Ireland, orthopaedic surgeon and Dr Roger Brighton, orthopaedic surgeon.
Dr Ireland wrote to the appellant’s insurer on 2 September 1994 in respect of the injury to the left knee on 2 September 1994. He described the injury, noting that the respondent slipped on oil, which caused immediate and continuing pain and swelling. Dr Ireland considered that the most likely diagnosis was a torn meniscus but said that he could also not rule out a ligamentous strain.
On 2 August 1995, Dr Nossar reported to Dr Ireland that he had initially seen the respondent in relation to left knee symptoms on 26 August 1994, following an incident at work when he felt a “clunk” in his left knee while lifting a box weighing more than 30 kilograms. He took the history that the respondent experienced continuing intermittent symptoms thereafter, worsening in 1995. He took the further history of the left knee giving way when the respondent was alighting a bus and put his weight on the knee and the knee gave way. Dr Nossar queried whether the respondent had collateral ligament damage in addition to meniscal damage.[31]
[31] ARD, pp 786–788.
In a report dated 16 November 2000, Dr Biggs reported to Dr Raouf Philips, general practitioner.[32] He recorded a history of the injury to the left shoulder on 1 June 2000, and a further injury on 17 October 2000 while digging trenches on hard ground. He diagnosed the respondent as suffering from an impingement syndrome and rotator cuff tendinitis of the left shoulder.
[32] ARD, p 782.
Dr Biggs performed arthroscopic surgery to the left shoulder on 6 July 2001. He noted the presence of thickened subacromial bursitis and fraying of the supraspinatus tendon which was indicative of ongoing subacromial impingement.
Dr Brighton reported on several occasions to Dr Philips (between 2009 and 2011) and to Dr New in 2020.[33] On 18 December 2009, Dr Brighton reported to Dr Philps in respect of the respondent’s “right hip arthritis”. He referred to plain x-rays of the pelvis and both hips, which he said demonstrated degenerative changes in both hips, less advanced on the right-hand side, and had all the hallmarks of advancing arthritis. He recommended a total hip replacement.[34]
[33] ARD, pp 791–797.
[34] ARD, pp 791–792.

THE MEMBER’S REASONS

The Member noted that the respondent relied upon injuries to the cervical spine, thoracic spine, left upper extremity, left lower extremity, right lower extremity, the lumbar spine and scarring. The Member recorded that, at the conciliation and arbitration, the respondent sought to rely upon a deemed date of injury of 12 March 2003, a date relied upon in previous proceedings. The Member declined the application. The Member indicated that, in these proceedings, he granted leave for the respondent to rely upon the “disease provisions,” pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act, which respectively define injury as the contraction of a disease, or the aggravation, exacerbation, acceleration or deterioration of a disease.
The Member observed that there was no challenge to the respondent’s evidence as to the nature of the duties he was required to perform over the whole period of the respondent’s employment, which involved heavy lifting. The Member referred to the respondent’s statement evidence and a list of injuries, which he assumed had been prepared by the respondent. He observed that there was a significant issue between the parties as to whether those injuries were “frank” injuries or, as the respondent argued, resulted from the heavy work required as part of the “nature and conditions” of his employment.
The Member summarised the details of the respondent’s statement evidence as to the physical nature of the work he performed, which involved bending, squatting and twisting. He further summarised the history of incidents in which the respondent injured the various parts of his body in the course of what the Member described as labour-intensive work. The Member referred to the osteoarthritic changes in the respondent’s left hip and the suggestion that the respondent considered that the condition was not work-related and observed that he did not place any weight on the respondent’s own evidence that the condition was not work-related because expert opinion on causation was required to reach such a conclusion.
The Member observed that it was reasonably clear that the respondent’s duties were heavy in nature, and required strenuous use of his neck, left shoulder, elbows, back, and left hip. The Member referred to the reasons of the Medical Appeal Panel and reviewed the ongoing evidence of injuries referred to by the respondent in his statements. The Member considered that the history provided by the respondent of the heavy nature of the work he performed, other than short periods when the respondent performed “light duties” was consistent with the history concisely recorded by Dr New of the respondent performing heavy duties for the appellant for 35 years.
The Member referred to the respondent’s statement dated 5 June 2008 in which the respondent complained that he had suffered an injury to his left leg, left knee, right leg, back, neck, left arm on 26 August 1984. He observed that, in the absence of other complaints of the right hip symptoms the reference to the right hip may be a typographical error, and in the light of the reasoning in the Medical Appeal Panel decision, the injury date of 1984 should have been a date of 1994 for that injury. He noted that the respondent described difficulties in his right knee, and that the right knee was painful when climbing up or down stairs, squatting and walking. He further noted that the respondent’s symptoms were worsening, which he said was consistent with a “nature and conditions” claim.
The Member reviewed the evidence of Dr Dixon provided in 2009, which included reference to the left shoulder surgery in 2001 and in which Dr Dixon addressed the respondent’s impairments under the table of disabilities for particular injuries, as well as an assessment of the respondent’s whole person impairment attributable to the nature and conditions of his employment. The Member considered that the evidence of Dr Dixon accorded with that of Dr New in respect of the allegation of injury as a result of the “nature and conditions” of the respondent’s employment. The Member listed the assessments made by Dr Dixon for the various injuries and the assessments made by the Medical Appeal Panel, which he said dealt with a deterioration of the respondent’s symptoms.
The Member discussed the evidence of Dr New. He reproduced several paragraphs of the history of injuries and the causation of those injuries recorded by Dr New and a description of the type of work performed by the respondent. The Member summarised the findings made by Dr New during the physical examination of the respondent. The Member quoted Dr New’s opinion in respect of the respondent’s capacity for work, which Dr New thought indicated that the respondent would probably need to consider medical retirement. The Member further quoted the paragraph from Dr New’s report reproduced at [43] above that the nature and conditions of the respondent’s entire employment was the main contributing cause, “noting the specific accidents”. The Member also extracted Dr New’s observation that:
“[The respondent] has multiple musculoskeletal problems with cervical, thoracic and lumbar spondylosis. He has had a painful left shoulder consistent with left rotator cuff syndrome. I note that he has had a left total hip arthroplasty and has osteoarthritis of both knees.”[35]
[35] Dr New’s report dated 21 December 2020, ARD, p 23.

The Member rejected the appellant’s submission that the reasoning process expressed by Dr New was a “bare ipse dixit”. He reasoned that although Dr New’s opinion expressed in that report and the later report was concise, when considering Dr New’s opinion as a whole, his reasoning process was explained. The Member observed that Dr New had identified the respondent’s duties, his capacity for work and his current physical presentation before concluding that the nature of the work performed by the respondent for over 30 years was the main cause of those symptoms, in the context of the occurrence of specific incidents.
The Member reasoned that it was not sufficient to consider the paragraph relating to causation in isolation from the preceding and subsequent paragraphs, particularly when, in the subsequent paragraph, Dr New identified cervical, thoracic and lumbar spondylosis. The Member concluded that, in his view, that was a diagnosis of a disease and, when read with the letter of instruction in which Dr New’s attention was drawn to the question of a disease injury, Dr New concluded that the employment was the main contributing factor in that context. The Member considered that the letter of instruction to Dr New provided the context and clarified Dr New’s opinion.
The Member noted that Dr New also referred to the left hip total arthroplasty and described the presence of osteoarthritis in both knees. The Member considered that Dr New had taken into consideration the specific injuries which the respondent had suffered, and then expressed a view as to the nature and conditions of employment being the main cause, but not necessarily including the specific incidents. The Member concluded that the appellant’s submission that Dr New’s opinion was a “bare ipse dixit” was rejected, as was the submission that the injuries were separate injuries.
The Member referred to Dr New’s observation that the significant injuries to the left shoulder affected the cervical and thoracic spine and the left hip affected the lumbar spine and knees because of the alteration in range of movement, the reduced strength and ability to ambulate. The Member accepted that there was sufficient explanation from Dr New for a finding that the injuries caused the consequential conditions.
The Member considered that the injuries referred to by Dr New in his substantive report should be the focus of consideration as Dr New provided reasons why the nature and conditions of employment over the 35 years was the main contributing factor to the various conditions identified by Dr New. The Member noted that, in his subsequent report dated 20 June 2023, Dr New confirmed his opinion that the respondent’s employment was the main contributing factor to the injuries.
The Member referred to the reports of Dr Gothelf, in which Dr Gothelf pointed to reports from Dr New dated 14 January 2020, 31 January 2020, 4 February 2020 and 27 April 2020. The Member said that it was apparent that Dr New was treating the respondent in respect of an injury on 28 March 2019 when the respondent was lifting a heavy metal shutter and was also treating the respondent in respect of hip pain following an examination by Dr Breit. The Member added that on 27 July 2019, Dr Moussad, the respondent’s treating general practitioner, referred the respondent to Dr New in respect of lower back pain and hip pain. The Member considered those matters as relevant to the appellant’s submission that there were no medical reports tendered in the respondent’s case from any treating doctor, so that an inference should be drawn that the treating doctor’s reports would not assist the respondent. The Member concluded that Dr New was a treating specialist, as well as a medico-legal expert. The Member further concluded that, as Dr New had had the opportunity to see the respondent on several occasions as early as 2020 and to review the respondent from a treating point of view, his opinion should carry considerable weight.
The Member referred to submissions made by the respondent in respect of the clinical notes of Dr Moussad. He considered that it was not necessary to look for corroboration in the clinical notes, other than to say there were references to osteoarthritis in the respondent’s back in 2009 and 2011 and to lower back pain. The Member considered that these “were in fact instances of symptoms in the context of a disease-type claim being a Zickar type onset of symptoms.”[36] The Member accepted that that was the case.
[36] Transcript of reasons (T), Edwards v State of New South Wales (Sydney Local Health District) W6976/23, 8 December 2023) T36.26–29.
The Member turned to the evidence of Dr Brighton, including a report dated 18 December 2009 directed to Dr New in which Dr Brighton diagnosed advanced osteoarthritis of the left hip in the context of the respondent having worked in the appellant’s maintenance department and experienced many months of left sided, radiating groin pain, which the respondent had hoped would resolve. The Member noted that the respondent conceded that the report did not provide an opinion on causation but said that the evidence was not inconsistent with the concept of injury as a result of the nature and conditions of employment, as opined by Dr New, and did not point to any other causal factor for the left hip condition. The Member considered that Dr New had probably had the benefit of reading that report, given that the report was directed to him. The Member took the view that there was no evidence that was inconsistent with Dr New’s opinion that the nature and conditions of the respondent’s employment was the cause of the respondent’s osteoarthritic condition.
The Member turned to the evidence contained in the reports of Dr Biggs, who treated the respondent in respect of the left shoulder condition, including performing surgery to the left shoulder in 2001. The Member observed that, in a report from Dr Biggs to Dr Philips dated 16 November 2000, Dr Biggs referred to the injury to the respondent’s left shoulder at work while carrying heavy gyprock on 1 June 2000, and a further injury on 17 October 2000, digging trenches in hard ground, which left the respondent with ongoing activity-related difficulties, including lifting above shoulder height. The Member noted that Dr Biggs diagnosed the respondent as suffering an impingement syndrome and rotator cuff tendonitis in the left shoulder. The Member considered that Dr Biggs’ opinion was limited to a consideration of the particular incidents and did not involve a consideration of the nature of the work performed by the respondent, however Dr Biggs’ evidence was not inconsistent with Dr New’s opinion about the nature and conditions of the respondent’s employment.
The Member remarked that Dr New had given specific consideration to the various incidents occurring in the respondent’s employment, as well as the nature of the work the respondent performed. He observed that Dr New gave separate consideration to the injury arising from the nature of the respondent’s duties, as distinct from the injuries in the form of specific incidents, which in the Member’s view was the correct approach.
The Member considered that Dr Stephenson was also providing his opinion in respect of specific incidents occurring in the respondent’s employment and did not turn his mind to the question of whether the nature of the work performed by the respondent also caused injury, so that Dr Stephenson’s opinion was not inconsistent with that of Dr New. The Member noted that Dr Stephenson referred to a report provided by him on an earlier occasion which was not in evidence in these proceedings, in which Dr Stephenson expressed the view that the osteoarthritis of the left hip was not related to the nature of the work the respondent performed or referrable to a specific injury. The Member took the view that the opinion expressed by Dr Stephenson was unclear, it was difficult to discern what was the totality of Dr Stephenson’s opinion, and it should be considered in the context of the respondent’s own perception that the left hip condition was not work related. The Member said that the first opportunity for a consideration of the left hip being work-related was when Dr New provided his opinion. The Member remarked that in the submissions from both parties, neither party relied upon Dr Stephenson’s opinion, as the evidence was admitted only on the basis of the history relied upon, rather than the opinion expressed by Dr Stephenson. The Member said that, at its highest point, the opinion was dependent upon the respondent’s own point of view that his osteoarthritis was not work-related.
The Member turned to the reports provided by Dr Breit in which Dr Breit examined the respondent in respect of his back condition on the background of specific incidents of lifting a heavy roll of rubber in 2017 and having to deal with heavy lift doors on 28 March 2019. The Member formed the view that Dr Breit’s evidence took the matter no further, once again because Dr Breit was dealing with specific incidents and gave no consideration to the question of whether the nature and conditions of the respondent’s employment contributed to the condition. The Member concluded that Dr Breit’s evidence was not inconsistent with the evidence of Dr New.
The Member accepted the respondent’s submission that Dr Gothelf merely dealt with the respondent’s list of injuries and maintained his diagnoses in relation to those specific injuries, without dealing with the respondent’s case. The Member observed that, in the report dated 27 April 2020, Dr Gothelf did refer to the respondent’s employment over the period of 35 years in work that involved labouring work, digging, lifting, carrying and repetitive work, and that Dr Gothelf considered that the respondent was unable to perform his usual duties because of pain and difficulties associated with lifting. The Member said that Dr Gothelf did not engage in a reasoning process from the aspect of the heavy nature of the respondent’s duties. The Member referred to the respondent being unable to recall all of the specific injuries when he attended Dr Gothelf, and that Dr Gothelf appeared to take some of the history from the written list of injuries provided by the respondent. The Member formed the view that while the respondent recalled certain incidents, the respondent’s evidence was that there were a number of events that occurred in a general sense. The Member considered that Dr Gothelf ought to have engaged with the aspect of the heavy nature of the respondent’s work, which Dr Gothelf recorded, but did not consider in his reasoning process.
The Member noted that Dr Gothelf recorded a history of injury to the back on 28 March 2019 while lifting a heavy metal shutter, diagnosed by Dr Gothelf as a soft tissue strain with exacerbation of pre-existing low back pain with the MRI scan findings on 9 May 2017 revealing an L5/S1 disc protrusion and on 6 June 2019 revealing mild spondylitic changes at the L4/L5 and L5/S1 levels of the spine. The Member observed that Dr Gothelf took the history from the respondent of several previous back injuries, with the worsening of symptoms in the injury in 2017. The Member concluded that Dr Gothelf should have assessed what contribution the prior injuries made to his diagnosis in respect of the 28 March 2019 injury. The Member considered that it was unsatisfactory for Dr Gothelf to not fully explain the nature of the earlier injuries and their contribution to injury on 28 March 2019, and, having failed to engage with that history, his opinion was not inconsistent with the respondent having suffered injury as a result of nature of his duties in the employ of the appellant.
The Member rejected the opinion of Dr Gothelf that there was “insufficient scientific evidence in the literature to conclusively establish that any occupational or ergonomic risk factor is actually a medical cause of working-age adult low back pain”.[37] The Member reasoned that the balance of proof in the jurisdiction of the Commission did not require conclusive scientific proof, and the standard required was ‘on the balance of probabilities.’ He pointed out that Dr Gothelf did not turn his mind to the question of whether the respondent suffered injury as a consequence of the nature and conditions of his employment, and did not provide an opinion in respect of causation of the neck symptoms or the left shoulder condition.
[37] Reply, p 83.
The Member reviewed the reports from Dr Gothelf and noted that Dr Gothelf’s opinion was limited to the conclusion that:
“Based upon the history received from [the respondent] the conditions discussed were the result of multiple frank injuries and not described as caused by the nature and conditions of his duties.”[38]
[38] Reply, p 106.
The Member concluded that Dr Gothelf did not engage with the respondent’s case, and his evidence was rejected.
The Member referred to the Court of Appeal decision of Rail Services Australia v Dimovski[39] and briefly recited the facts in that case. The Member said that Dimovski is authority for the proposition that a frank injury (as defined in s 4(a) of the 1987 Act) cannot be the basis upon which to find a disease injury within the meaning of s 4(b)(i) or s 4(b)(ii) of the 1987 Act, so that a frank injury could not be relied upon as part of a “nature and conditions” claim. The Member reasoned that, in this case, it was not necessary to rely upon particular events in order to establish a claim of injury as a result of the nature and conditions of employment.
[39] [2004] NSWCA 267 (Dimovski).
The Member considered that the facts in this case “place it outside of the particular framework”,[40] presumably of Dimovski, and reasoned that it was not necessary to rely upon particular incidents that are identified because it was more important to consider the particular nature of the employment duties. He considered that this case was more analogous to a shearer’s case. The Member reasoned that the “frank incident” in Dimovski and the cases discussed therein was more akin to incidents where the “worker had sustained an event which was discrete in a particular point of time.”[41] The Member considered that in this case there was no finding of the Commission that the injuries suffered by the respondent were “frank” events and the previous claims brought by the respondent were simply referrals for medical assessment with the absence of any finding of injury. The Member acknowledged that Certificates of Determination and consent orders had been issued in respect of those claims but observed that it was not necessary to consider the effect of those orders and determinations, and a broad approach to the rationale in Dimovski should be considered with care.
[40] T60.25–6.
[41] T61.29–30.
The Member noted that the term “frank” injury was not defined in the legislation, however, is a term that has been widely used in the workers compensation jurisdiction. The Member said that the question then arises as to whether lifting over the course of a delivery was a sufficiently discrete timeframe to constitute a frank injury. He considered that it was probably not.
The Member said that the respondent’s employment continued for a significant time after the Medical Assessment Certificates and the Certificates of Determinations were issued, so that the question arises as to whether the incidents described from that time could be regarded as frank incidents, but not necessarily an injury pursuant to s 4(a). He considered that that was possible.
The Member thought that if a broader approach to Dimovski was taken, then lifting and moving a heavy item in a loading dock, for example, could constitute a frank injury. The Member observed that there had been no finding made (presumably as to whether that injury was an injury within the meaning of s 4(a)) so that in his view, whether the injury was a discrete event was not made out and there had been no finding in relation to that event one way or another. The Member gave examples of what he would consider to be “frank” incidents, such as a trip and fall or an incident twisting a shoulder, however he was of the view that the incidents post-dating the Certificate of Determination could be regarded as either a frank incident or part of the nature and conditions claim.
The Member referred to a submission made by the appellant that something which is listed as a frank incident could be found to be such an incident. The Member thought that that approach put the “cart before the horse” and he declined to take that approach. The Member pointed to Dr New’s opinion that the injury resulted from the “nature and conditions” of the respondent’s employment. The Member rejected the appellant’s submissions as to the application of Dimovski and said that he preferred the submission put to him by the respondent that this case was akin to a shearer’s case,[42] or a jockey’s case (referring to a decision of another general Member of the Commission.[43] The Member noted the appellant’s submissions that the facts in those cases were different and agreed that that was the case but pointed out that the facts in every case are different. The Member said, however, that the cases were analogous with the current case because the respondent’s evidence was that there were hundreds of incidents in which he was injured but did not report those incidents. The Member considered that the reasoning process in Lee was persuasive and, in a case, where there are hundreds of incidents, it is a matter of common sense to adopt that process.
[42] Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 (Taylor).
[43] Lee v Racing New South Wales [2023] NSWPIC 520 (Lee).
The Member acknowledged that Taylor was a “shearer’s” case and was factually different to the present matter. He said, however, that McColl AP indicated that a short passage from the evidence of Dr Drew Dixon, orthopaedic surgeon which referred to the generality of shearing work, and a two-line statement from the worker, was sufficient evidence to establish injury. He reasoned that, while the cases are factually different, it was important to apply the same principles. The Member said that in Taylor, the worker described the work he was doing as “back-breaking”, putting significant pressure on the neck, shoulders, elbows, wrists, knees, and ankles and asserted that the nature and conditions of the work of a shearer over many years caused pain and discomfort. The Member observed that McColl AP took into account that the employer’s medical case did not really traverse the worker’s case. The Member noted that Taylor involved a claim for compensation arising out of the “nature and conditions” of employment and relied upon the definition of injury set out in s 4(b)(i) and 4(b)(ii) of the 1987 Act (a disease injury). The Member indicated that, while Taylor and the present case were factually different, the allegation of injury was the same, so that it was sufficient for the respondent to establish injury in that he complained of a disturbance of a physiological state (pain) that could produce incapacity. The Member considered that the evidence from the respondent and particularly from Dr New confirmed such an event at various times. The Member considered that Zickar v MGH Plastic Industries Pty Ltd[44] was also relevant.
[44] [1996] HCA 31 (Zickar).
The Member referred to the requirement to establish that the respondent’s employment was the main contributing factor to the injury and indicated that the evidence of Dr New satisfied that requirement. He noted that the appellant submitted that Dr New’s evidence about that question was a “bare ipse dixit” because he did not explain why the nature and conditions of employment was the main contributing factor as opposed to other factors such as the various other injury dates. The Member said that he did not accept that submission. He noted that Dr New had taken into account that the respondent had suffered other “specific” injuries and, when taking into account all of Dr New’s reports, the doctor had explained his opinion, so that there was a fair climate for Dr New to reach his opinion and the opinion was thus not a “bare ipse dixit”.

The appellant’s submissions in reply

The appellant also refers to Stead. The appellant says that the Member was required to determine the factual issue of whether the respondent suffered a disease injury within the meaning of s 4(b) of the 1987 Act and placed considerable weight on the evidence of Dr New because Dr New had been the respondent’s treating surgeon. The appellant asserts that the respondent did not make submissions to the Member as to the weight to be afforded to Dr New’s evidence in those circumstances and the treating reports were not in evidence.
The appellant submits that it is possible that the Member would have accepted a submission made that no weight should be afforded to Dr New’s reports when the treating reports were not in evidence and the only evidence adduced from Dr New was his opinions provided on a medico-legal basis. The appellant indicates that an adverse inference could be drawn that the failure by the respondent to rely on the treating reports would lead to the conclusion that the reports did not assist the respondent’s case. The appellant asserts that the Member declined to draw that inference on the basis that the status of Dr New had been established, yet the treating reports were not in evidence. The appellant explains that it was “feasible” that the Member might have arrived at a different conclusion if the appellant had been given the opportunity to make those submissions.

Consideration of Ground Four

The Member’s consideration of the weight to be afforded to the evidence of Dr New was prompted by the appellant’s submission that an adverse inference could be drawn from the fact that there was no medical evidence from a treating doctor addressing the issue of causation. In fact, appellant’s legal representatives, who arranged for the respondent to be medically examined by Dr Gothelf, forwarded the reports generated by Dr New in his capacity as a treating doctor to Dr Gothelf for Dr Gothelf’s consideration. It is abundantly clear that the appellant had in its possession those reports and that the appellant proceeded to defend the case in their absence. It is not so clear that the respondent’s legal representatives were appraised of the fact that Dr New treated the respondent in respect of his back and hip and it is also unclear as to whether the respondent’s representatives had possession of those treating reports. Had each party properly embraced the evidence referred to by Dr Gothelf prior to making submissions to the Member, each would have had the opportunity to make submissions about the fact that Dr New had treated the respondent, the weight that should be afforded to Dr New’s evidence and whether an adverse inference should be drawn about the absence of the earlier reports.
It is wholly unsatisfactory that the earlier treating reports, which were clearly in the hands of the appellant, were not adduced into evidence in circumstances where Dr New’s opinion as to causation was fundamental to the Member’s conclusion. I do not consider that either party was denied procedural fairness in the circumstances described above and this ground of appeal fails.

CONCLUSION

The appellant has succeeded in establishing error on the part of the Member in respect of the Member’s determination that the respondent suffered a disease injury in accordance with s 4(b)(i) of the 1987 Act. The Member’s Certificate of Determination is therefore revoked, and the dispute is remitted to a different non-Presidential member for re-determination.

DECISION

Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
The respondent’s application for leave to adduce additional evidence is refused.
The appellant’s application to raise the additional ground of appeal, Ground Four, is granted.
The appellant’s application to raise the additional ground of appeal, Ground Six, is refused.
The Member’s Certificate of Determination dated 11 December 2023 is revoked, and the dispute is remitted to a different non-Presidential member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

13 December 2024