Stone v Gilbarco Australia Pty Ltd - [2024] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Stone v Gilbarco Australia Pty Ltd [2024] NSWPICPD 17
APPELLANT:	Raymond Barry Stone
RESPONDENT:	Gilbarco Australia Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W1060/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	14 March 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 2 June 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – injury – treatment of clinical notes – contemporaneity of complaint of cervical spine injury
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr M Evers, solicitor
Michael Evers & Co
Respondent:
Mr A Combe, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	2 June 2023

INTRODUCTION AND BACKGROUND

The appeal is from a Certificate of Determination dated 2 June 2023 in which the Commission determined that there should be an award for the respondent.
The appellant, Mr Raymond Stone, was employed by the respondent, Gilbarco Australia Pty Ltd, as an LPG Supervisor/Service Technician from about 1990. His duties required him to travel and on occasion stay overnight in motel accommodation.
On 21 November 2013, whilst walking into his allocated room, he fell on his left knee and the palm of his outstretched hand. In his statement dated 5 October 2022 the appellant said:
“When my left palm hit the step entry, I jolted my left shoulder. At the time I had pain in my left shoulder, left knee and neck.”[1]
[1] Application to Resolve a Dispute (ARD), p 2.
The respondent accepted the claim for the left knee and the left shoulder. The appellant was paid compensation and s 60 expenses including expenses referable to multiple surgical procedures.
Subsequently in 2022 the appellant brought a claim for a declaration that the respondent pay the costs of a proposed C5/6 anterior cervical decompression and fusion. Liability for that procedure was denied.
The dispute resolved by the Member was:
“(a) did the [appellant] injure his cervical spine?” (in the fall of 21 November 2023)
For the reasons that follow the appeal is dismissed and the Certificate of Determination dated 2 June 2023 is confirmed.
(I note that the Member’s Statement of Reasons contains a duplication of the paragraph enumeration at paragraph [39] so that there are 2 sets of paragraphs numbered [39] to [53]).

REASONS OF THE MEMBER

The Member identified the issue as being whether the appellant injured his cervical spine on 21 November 2013.
The facts are not substantially in dispute and the following summary is taken from the Member’s Statement of Reasons.[2]
[2] Stone v Gilbarco Australia Pty Ltd [2023] NSWPIC 257 (reasons).
The appellant fell on 21 November 2013. He attended Manning Base Hospital.
He consulted his General Practitioner, Dr Swanson, and came under the care of Dr Petrelis, a shoulder surgeon.
On 4 December 2013, Dr Petrelis performed surgery on the shoulder. The specialist referred the appellant for physiotherapy at Macquarie Physiotherapy.
On 1 March 2014 the appellant slipped and fell at his daughter’s wedding. He fell down three stairs. He attended the Nelson Bay Polyclinic.
On 11 March 2014 the appellant attended the Belmont District Hospital.
The appellant relied on his statement dated 5 October 2022 and medical reports from Drs Swanson, Spittaler and Abson, the treating doctors. In addition, there were five reports from Dr Bodel. The Member noted that in none of Dr Bodel’s reports was there a history of injury on 1 March 2014.
The respondent qualified and obtained a report from Dr Casikar.
In addition to the report evidence there were clinical notes from the various hospitals and medical centres the appellant attended.
The Member summarised the statement and report evidence in detail.
He said under the heading of “Dispute notices”:
“The claim was denied as the dispute notices asserted that Mr Stone could not establish that his employment had been the main contributing factor to his cervical condition. The five notices issued all relied on the opinion of Dr Vidyasagar Casikar, neurosurgeon, retained as the respondent’s medico-legal adviser.”[3]
[3] Reasons, [39].
The Member noted that the opinion of Dr Casikar was “that the surgery for the management of degenerative disease of the cervical spine suggested by Dr Abson was acceptable, but he [Dr Casikar] failed to see any evidence to support that Mr Stone’s present condition was related to the injury of 2013.”[4]
[4] Reasons, [53].
After summarising the parties’ submissions, the Member said that the onus was on the appellant to establish:
“· that the accident of 21 November 2013 caused an aggravation, exacerbation, acceleration or deterioration of a degenerative disease of Mr Stone’s cervical spine, in terms of the amended pleadings, and
· that his employment was the main contributing factor thereto.”[5]
[5] Reasons, [87].
The Member said Mr Stone’s case suffered from a number of difficulties.
Firstly, there was no contemporaneous support for the claim that Mr Stone injured his neck when he tripped on entering the motel room. The Emergency Department triage notes from the Manning Base Hospital recorded complaints of pain only in the left arm and knee.[6]
[6] Reasons, [88].
Secondly, Mr Stone did not make any complaints about the symptoms in his neck until after he had come to surgery with Dr Petrelis for the left shoulder on 4 December 2013.
The first record in the contemporary notes of neck pain was in the Macquarie Physiotherapy Management Plan of 19 December 2013. Complaints of neck pain were also made to Dr Swanson on 26 February 2014. In addition, the Member said he was able to locate reference to “neck” twice in Dr Swanson’s handwritten notes.[7]
[7] Reasons, [89].
Thirdly, Mr Stone suffered an unfortunate fall while at his daughter’s wedding on 1 March 2014. Although the Emergency Department notes referred only to the left clavicle and humeral head of the shoulder, on 11 March 2014 complaints were noted in the area of the mid-thoracic back, the neck and left shoulder.[8]
[8] Reasons, [90].
In response to the appellant’s counsel’s submission with respect to the evidence of Dr Swanson, the Member said Dr Swanson “was undoubtedly supportive” but even he conceded that Mr Stone had not complained to him of neck symptoms until 26 February 2014. The Member directed himself as to the importance of the warning given in cases such as Mason v Demasi.[9]
[9] [2009] NSWCA 227 (Mason).
The Member said:
“Further, Dr Swanson’s logic was difficult to follow when he advised that because Mr Stone did not complain to him of neck pain on 12 March 2014, the original fall was the main contributing factor. It is certainly evidence that confirms that Mr Stone’s neck condition was aggravated by the 1 March 2014 fall, and then settled down, as he said in his statement. As indicated, Mr Stone said his pain returned to his pre-1 March 2014 level.
I also do not agree with Dr Swanson, with respect, that it was reasonable to say that Mr Stone had some ongoing neck pain from the original injury, as after an exhaustive investigation of his clinical notes no entry to that effect was identified, contrary to the inference made by Dr Swanson. Mr Stone also did not receive physiotherapy for ongoing neck pain from the 21 November 2013 event as Dr Swanson alleged. He received physiotherapy following his shoulder surgery of 4 December 2013, as indicated.”[10]
[10] Reasons, [96]–[97].
The Member observed that Dr Bodel’s opinion of 5 August 2016 was based on an assumption that Mr Stone had injured his neck on 21 November 2013 and “was seen at” Manning Base Hospital. However “that assumption was not confirmed in the contemporaneous notes of the Manning Base Hospital, nor in any other contemporaneous material until after the shoulder surgery of 4 December 2013.”[11]
[11] Reasons, [100].
Dr Spittaler took a history of injury only to the left arm and left shoulder. He noted the symptoms at the time of his examination but made no comment as to their cause. Dr Abson said that Mr Stone was suffering referred arm pain of C6/7 distribution of an intermittent nature which he associated with the work injury. The Member, however, discounted this on the basis that the “history again was not corroborated by any contemporaneous evidence, and without more was too vague after eight or so years to have any weight as demonstrating that the 21 November 2013 incident injured Mr Stone’s neck.”
The Member speculated that Dr Abson’s conclusion that the neck was associated with Mr Stone’s work injury may well have been in the context that the left shoulder treatment had caused the cervical spine symptoms.[12]
[12] Reasons, [102].
Of the appellant’s statement evidence, the Member said this:
“Mr Stone has given a clear and informative statement. Many of the entries throughout the medical evidence have mentioned his keenness to get back to work in a job he has been doing since 1990. I accept that he has done his best to assist this enquiry in making his statement, but the lack of support for the most significant assertion raises the prospect that he may have innocently reconstructed his recall of the events he described. His statement was made almost nine years after the event of 21 November 2013, and the objective evidence shows that the condition of his cervical spine did not become a significant issue for him until, as he said, he was referred to Dr Spittaler, whom he saw on 7 May 2020.”[13]
[13] Reasons, [104].
The Member dismissed the explanation by the appellant that his failure to mention his neck until 19 December 2013 was due to the left shoulder injury being paramount as “conclusory and of little probative value”. The Member said:
“… There was no supporting evidence that Mr Stone had been suffering neck pain between 21 November and 19 December 2013 and therefore it remains of little weight. Mr Stone’s recollection may have been compromised by the subsequent awareness of the seriousness of his present cervical condition which, as indicated, did not become apparent until April/May 2020.
It follows therefore that I am unpersuaded that Mr Stone aggravated, exacerbated, accelerated or deteriorated his pre-existing neck condition in the subject accident on 21 November 2013. It follows that he has also failed to establish that his employment was the main contributing factor to his cervical spine injury.”[14]
[14] Reasons, [106]–[107].

THRESHOLD MATTERS

The application was filed within 28 days of the Certificate of Determination issued on 2June 2023. As such, s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied.
The amount in issue is more than $5,000 and s 352(3) of the 1998 Act is met.

NATURE OF THE APPEAL

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. “The appeal is not a review or a new hearing.”

ON THE PAPERS

The parties submit that the appeal can be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law, provide that I may be satisfied that the documents and submissions of the parties provide sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to deal with the matter on the papers without holding any conference or formal hearing.

GROUNDS OF APPEAL

The appellant relies on the following grounds of appeal:
“GROUND 1
Erred in stating the test of ‘causation’ at [87]. In fact, the legislation provides:
4      Definition of ‘Injury’
…
(a)     means personal injury arising out of or in the course of employment,
(b)     …
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
GROUND 2
Erred in finding at [94] that Dr Swanson’s opinion in his report of 29 November 2022 was speculative and advocative. It was in fact, responding to a series of questions the appellant’s solicitor had requested from Dr Swanson in relation to the proceedings.
GROUND 3
Erred in finding [at 95] that an absence of complaint at Manning Base Hospital substantially [affected] the credibility of the appellant’s version. The Member refused to allow cross examination of the appellant and his evidence remained, therefore, unchallenged.
The Member failed to take the opportunity to assess the appellant’s credibility to enable him to find that the appellant had no neck pain from the time of the workplace injury.
GROUND 4
Erred in finding at [97] that the physiotherapy referrals and notes [at ARD 49] did not support the claim of causation, when the documents clearly state that the left shoulder and neck pain were from the workplace injury.
GROUND 5
Erred in finding at [104] that the appellant’s version suffered from lack of support, such finding contrary to Dr Swanson’s report and documentation that surrounded his approved physiotherapy treatment that, in November 2013, clearly linked his neck pain to the workplace injury.
GROUND 6
Erred in finding at [105] that the appellant was required to provide a detailed account of the ‘frequency or relative intensity’ of his pain between 21 November 2013 and 19 December 2013, to establish causation when the record demonstrated physiotherapy was requested and performed for his left shoulder and neck for a period (at least) commencing on 12 December 2013.
GROUND 7
Erred in concluding at [106] that the appellant’s version of suffering neck pain from the workplace was of ‘little probative value’, when the documentary trail clearly demonstrated a series of significant shoulder operations and investigations to treat the symptoms of left shoulder and neck pain, ultimately leading to the diagnosis of cervical pathology.
GROUND 8
Erred in finding at [96] that Dr Swanson’s logic was difficult to follow, when the doctor was clearly addressing the request by the appellant’s solicitor as [to] the effects of the subsequent fall in March 2014. His opinion clearly stated the aggravation of his neck pain, if any, sustained in the subsequent fall in March 2014, had only temporary effect, with the level of neck pain from the workplace injury remaining.”

GROUND 1

Appellant’s submissions

The appellant submits that the incorrect test of causation posited at [87] of the reasons led the Member into a path of reasoning that applied a standard of proof higher than the prescription set out in the 1998 Act. The appellant’s submission is that the test “properly characterised” and applied should have led the Member into a forensic inquiry relating to the appellant’s uncontested evidence, assessed in the light of contemporaneous documentary evidence. In finding against the appellant the Member did not properly address the credibility of the appellant but relied on an absence of contemporaneous notes as determinative.[15]
[15] Appellant’s submissions, [1], citing Mason; Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.

Respondent’s submissions

The respondent submits that the test for causation adopted at [87] of the reasons was based on a review of the case law on the interpretation of s 4(b) of the 1987 Act. The passages quoted at [85] “correctly stated that ‘main contributing factor’ means ‘chief or principal’ and that the Commission must have regard to the whole of the evidence and [that] determination involves an evaluative process. Medical evidence and contemporaneous records are relevant and are part of the evidence to be reviewed in the evaluative process.”[16]
[16] Respondent’s submissions, [3].
The respondent further submits that the appellant’s statement was but one of the pieces of evidence and that it was “entirely appropriate that the contemporaneous evidence be reviewed for the evaluative process to be conducted. There was no error in the statement of law or the approach of the Member in reviewing all the evidence.”[17]
[17] Respondent’s submissions, [5].

Consideration

The Member set out the statutory definition of “injury” at [84] and the following paragraphs, citing relevant authority.[18]
[18] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71; Pearce v Secretary, Department of Communities and Justice [2023] NSWPIC 4 and the cases cited therein.
He observed at [86]:
“In considering the significance of the facts relied on by both sides, the causal chain must be evaluated. If a link becomes so attenuated in common-sense consideration of that chain then, for legal purposes, the causative connection is snapped, to use the analogy of Kirby P in Kooragang Cement Pty Limited v Bates.”
It is plain from the citations that the Member was cognisant of the correct reasoning process.
At [87] of the reasons he identified the correct factual conclusions the appellant was required to establish in order to satisfy the test of causation which he identified.
But the Member did not misdirect himself as to the applicable legal principle. Furthermore, I detect no error in the matters of fact to be established by the appellant identified in paragraph [87].
The appellant’s submission in support of this ground is that “the Member did not properly address the credibility of the appellant but relied on an absence of contemporaneous notes as determinative.” But that, with respect, is not what the Member did.
The Member assessed all of the evidence, including the notes, and explicitly accepted that Mr Stone’s statement was “clear and informative” but the Member concluded that Mr Stone may have “innocently reconstructed his recall of the events” because the statement was made 9 years after 21 November 2013 and “the objective evidence” demonstrated the condition of the cervical spine did not become significant for Mr Stone until he was referred to Dr Spittaler whom he saw on 7 May 2020.[19]
[19] Reasons, [104].
In other words, the Member regarded Mr Stone as an honest but inaccurate witness with respect to the issue of neck pain. That was a conclusion open to the Member on the material. It is not to the point that others may have reached a different conclusion on the material. No error is demonstrated in the Member’s conclusion adverse to the appellant.
Ground 1 of the appeal is dismissed.

GROUND 2

Appellant’s submissions

The appellant submits that the Member erred in finding at [94] that Dr Swanson’s opinion of 29 November 2022 was speculative and advocative. Rather, the appellant submits that the report responded to questions from the appellant’s solicitor.
The appellant submits that the report was based on Dr Swanson’s longstanding treatment and his opinion “should have been accepted, not rejected.” The appellant submits that the Member’s finding to the contrary was not open and was alternatively illogical and without foundation. “In so far as the Member’s views of Dr Swanson’s report [were] the integral reason to dismiss the claim, the decision should be set aside.”[20]
[20] Appellant’s submissions, [2].

Respondent’s submissions

The respondent submits that paragraph [94] cannot be read in isolation from the discussion of Dr Swanson’s evidence at paragraph [93]. The respondent submits that the absence of a clear contemporaneous record of a complaint of injury to the neck on 21 November 2013 meant the Member was entitled to find as he did that the conclusion was “speculative” as the doctor was speculating.

The respondent directs attention to [28] of the reasons which notes the referral by Dr Swanson to Dr Spittaler of 16 April 2020. The referral states that there is no specific neck pain at the time “but after the surgery he began to complain of increasingly problematic neck pain which refers to his shoulder.” This confirms the finding of the Member that the physiotherapy received by the appellant for the neck was following surgery for his left shoulder.

Consideration

The referral letter is quoted by the Member at [28]. Of significance is the observation by Dr Swanson:
“While he [Mr Stone] had no specific neck pain at the time [i.e. 21 November 2013] – probably because his shoulder was so sore but after the surgery he began to complain of increasingly problematic neck pain which refers to his shoulder.”[21]
[21] Reply to Application to Resolve a Dispute, p 108.
The observation “probably because” is in its terms speculative, albeit doubtless informed speculation.
Dr Swanson’s report of 29 November 2022 to the appellant’s solicitors contains the following:
“I first saw Mr Stone on the 25th November, 2013 and his main complaint was that of moderately severe pain, 7/10, for his left shoulder and left knee …
The first mention of neck pain in my notes was on the 26/2/2014. He complained of neck and upper thoracic spinal pain. He stated that the physio as well as working on his left shoulder also did some manipulating and dry needling in the region of his cervical and upper thoracic spine. The comment I made in my notes at this time that Mr Stone was experiencing persisting problems with his left shoulder and he had an aggravation of neck pain.”[22]
[22] ARD, p 118.
The Member was plainly cognisant of the difficulty associated with placing too much reliance on medical notes.[23]
[23] See reasons, [93].
Dr Swanson says:
“My comment would be that given his significant injury to his left shoulder he would not have mentioned any neck pain. Also given his full, considerable weight going onto his out stretched left hand it is conceivable that he would have sustained an injury to his cervical spine.”[24]
[24] ARD, p 118.
Both propositions could be sustained in any given case. But Dr Swanson does not commit to either proposition in Mr Stone’s case. The use of the word “would” is inherently hypothetical and speculative. Dr Swanson uses “would” on two occasions in the passage. Whilst it is conceivable that the events of 21 November 2013 could have resulted in injury to the cervical spine, Dr Swanson does not commit to the conclusion that it did result in cervical injury to Mr Stone.
The conclusion reached by Dr Swanson that:
“On the balance of probability the fall at Taree was the main contributing factor to his neck pain and that the reason it was not mentioned at the original appointment was that the pain in his left shoulder was so great and there was an obvious injury confirmed by xray and ultrasound”[25]
was supposition based on speculation.
[25] ARD, p 119.
It is not disputed by the appellant that he did not inform Dr Swanson of the neck pain at the time of the initial consultation.
It was open to the Member to conclude as he did that Dr Swanson’s observation was speculative. Furthermore, the Member’s conclusion was reinforced by the absence of any complaint noted in the records from the Manning Base Hospital.
The appellant has failed to demonstrate error on the part of the Member. Ground 2 of the appeal is rejected.

GROUND 3

Appellant’s submissions

The appellant submits that because the Member declined to grant leave to the respondent to cross-examine the appellant, this:
“resulted in material prejudice as the decision adverse to the appellant was, in essence, focused on a comparison of his uncontested statement and the records appearing in the evidence. The Member’s conduct of the proceedings, led to material prejudice or practical injustice. The decision therefore demonstrates a constructive failure to exercise jurisdiction: Rodger v De Gelder (2015) 71 MVR 514, Phillips v RW Williamson [2016] NSWSC 1681.”[26]
[26] Appellant’s submissions, [3].

Respondent’s submissions

The respondent submits that the Member’s refusal to allow cross-examination did not result in prejudice for two reasons.
Firstly, the basis for the cross-examination was that the clinical notes disclosed no evidence of injury to the neck which could be put to the appellant.
Secondly, the clinical notes which disclosed no evidence of injury were attached to the ARD and formed part of the appellant’s own evidence. “Cross-examination would have served no purpose in the circumstances.”[27]
[27] Respondent’s submissions, [9].
The respondent submits that the complaint that the Member failed to take the opportunity to assess the appellant’s credibility should be rejected.

Consideration

In the reasons the Member says at paragraph [7] that no application to adduce oral evidence was made. This appears to be incorrect. Counsel for the respondent made an application to cross-examine the appellant on the basis that the clinical notes disclosed no evidence of contemporaneous complaint of injury to the neck.[28]
[28] Transcript of proceedings 31 March 2023 (T), page 3.
That application was made after the Member put to counsel for the appellant:
“MEMBER: Is there any application in relation to oral dispute [sic]
MR HART: No. …”.[29]
[29] T 2.22–25.
Having declined to make an application to adduce oral evidence from the appellant, the appellant now complains that leave was not granted to the respondent to cross-examine.
The Member rejected the respondent’s application for cross-examination with the following ruling:
“That’s rejected. The evidence is there [for] you to comment on. I don’t think it’s going to take it much further by having oral evidence.”[30]
[30] T 3.18–20.
The respondent is correct that the purpose of cross-examination would be to put to the appellant the fact that the clinical notes fail to disclose evidence of contemporaneous complaint.
If it was the appellant’s case that there was evidence of a contemporaneous complaint but that it was not recorded in the clinical notes when it should have been recorded, then the procedures of the Commission are such that the appellant could have provided a supplementary written statement or he could have asked the Member for leave to give oral evidence at the hearing. That he eschewed such a course is fatal to this ground of appeal.
Ground 3 of the appeal is rejected.

GROUND 4

Appellant’s submissions

The appellant submits that the case he wished to advance was that the seriousness of the left shoulder injury had taken precedence over his relatively minor neck pain but that the neck pain existed and continued as a result of the workplace incident. The appellant submits that the Member fell into error by “fixating” on an absence of contemporaneous records in the records of Manning Base Hospital.
The appellant submits that properly read, the evidence of the appellant included that he had continuing neck pain, treatment of which had been accepted by no later than 19 December 2013. The proper inference, if any, to be drawn from the document(s) appearing at pp 49–53 of the ARD (i.e. notes of Macquarie Physiotherapy and a physiotherapy management plan dated 19 December 2013) was that he had neck pain caused by a workplace incident. In finding to the contrary, the Member fell into error and the decision should be set aside.

Respondent’s submissions

The reasons at [97] refer to the fact that physiotherapy was received following surgery to the shoulder on 4 December 2013. The respondent submits that this is an accurate statement of the evidence that was reviewed at paragraphs [49]–[50] of the reasons.
The referral for physiotherapy was reasonably inferred at [50] to be treatment following surgery performed by Dr Petrelis on 4 December 2013.
The respondent submits that the physiotherapy note “L shld + neck” is not sufficient to establish injury as alleged. The physiotherapy treatment was for the surgery on 4 December 2013. There is no report from a physiotherapist to contradict this conclusion.

Consideration

In the submissions in support of this Ground of Appeal and in relation to Ground 7, the respondent has referred to paragraph [50] where first appearing in the reasons. A second paragraph numbered [50] appears later in the statement of reasons but that paragraph concerns itself with Dr Casikar’s opinion that Mr Stone’s complaints of neck pain were a result of the shoulder pathology. The point intended to be made by the Member is clearly expressed in paragraphs [97] and [98] of the Member’s reasons. The physiotherapy was received as therapy for the shoulder surgery not for any injury to the neck.
At page 48 of the ARD Dr Petrelis writes to Dr Swanson following a post-operative consultation with Mr Stone on 12 December 2013. He notes that he intends to get Mr Stone “organised with physio”.
At page 49 the physiotherapist’s record notes that the referral is from Dr Petrelis.
At page 51 in response to the question “What is your major complaint?” the following is given:
“Shoulder to elbow pin needles to fingers wrist aches since accident 21-11-13.”
The physiotherapy management plan records:
“Workplace injury to which this plan relates: “L shld + neck”.
The physiotherapy documents at pp 49–53 of the ARD do not prove that the neck pain was caused by the workplace incident. Indeed the documents do not prove that the physiotherapist is treating neck pain at all.
The documents prove that the physiotherapist was informing the workers compensation insurer that he planned to provide physiotherapy relevant to the left shoulder and the neck following a referral from Dr Petrelis for therapeutic physiotherapy as an adjunct to the left shoulder surgery on 4 December 2013. The physiotherapist’s conclusion that the neck is part of the plan, with respect, does nothing more than identify where the physiotherapist intends to focus the treatment.
There is nothing in the entries at pp 49–53 of the ARD to substantiate the primary submission made by the appellant under this ground that the Member was in error “fixating” on an absence of contemporaneous records in the records of Manning Base Hospital. Furthermore the entries do not support or substantiate a case “that the seriousness of [the] left shoulder injury had taken precedence over his relatively minor neck pain but the neck pain existed and continued, as a result of the workplace incident.”[31]
[31] Appellant’s submissions, [4].
Ground 4 of the appeal is rejected.

GROUND 5

Appellant’s submissions

The appellant repeats its submission pursuant to Ground 4. The appellant submits that the physiotherapy notes support the complaint being the result of a fall and make no reference at all to being consequential to any surgery. The Member in concluding to the contrary did not provide any reference to any evidence at all relevant to the period 26 November to 12 December 2013. In finding that the appellant had failed to discharge his onus on that basis, the Member’s decision was contrary to the uncontested evidence and should be set aside.

Respondent’s submissions

The respondent submits that Ground 5 should be rejected for the same reasons as Ground 4. The physiotherapy notes were created on referral from the treating surgeon Dr Petrelis who operated on the left shoulder on 4 December 2013.
The inference made by the Member that the physiotherapy treatment was for the effects of the left shoulder surgery was open and reasonable to draw, especially in the absence of a report from the physiotherapist and/or Dr Petrelis stating there was a neck injury on 21 November 2013. It is to be noted that the report of Dr Petrelis dated 2 December 2013 makes no reference to the neck.

Consideration

For the reasons given in relation to Ground 4, Ground 5 is rejected.
The physiotherapy notes do not support a claim that the appellant sustained injury to the neck on 21 November 2013.

GROUND 6

Appellant’s submissions

The appellant submits that the Member found at [105] that there was insufficient detail about the frequency and intensity of the neck pain in the appellant’s statement. The appellant submits that the appropriate consideration of the uncontested evidence and the subsequent sequence of treatment to the shoulder should have led to a finding that the left shoulder injury was a significant focus of the appellant’s treatment and complaint, not that no neck injury had been sustained. The Member incorrectly found the appellant failed to discharge his onus and the decision should be set aside.

Respondent’s submissions

The respondent submits that the Member noted the statement of the appellant did not explain why the neck was not mentioned until 19 December 2013. This was an accurate reflection of the appellant’s statement. It reflects that there was no explanation of the absence of references to the neck on attendance at Manning Base Hospital nor until 19 December 2013.

Consideration

The Member said this at paragraph [105] of the reasons:
“As to the pre-May 2020 condition of his neck, Mr Stone’s explanation for his failure to mention his neck until 19 December 2013 was not detailed. There was no description of any facts such as the frequency or the relative intensity of the pain he had during those weeks. He simply stated that the pain of his left shoulder injury was ‘paramount,’ but that he had been suffering neck pain since the subject injury.”
The point of the Member’s remark is that there was no evidence to corroborate the appellant’s statement that he complained of neck pain before 19 December 2013. The appellant did not give a history of difficulties due to neck pain in this period. He simply asserted that the left shoulder injury was “paramount”.
The conclusion that the left shoulder injury was “paramount” did not provide an explanation for failing to mention the neck injury or pain until 19 December 2013. That was not the only factor that the Member relied upon for his conclusion that the appellant did not suffer an injury to the neck on 21 November 2013. But it was a factor in support of his overall conclusion.
Ground 6 of the appeal is rejected.

GROUND 7

Appellant’s submissions

The appellant relies on his submissions at Ground 4 and submits that the Member should have concluded that the physiotherapy records completed before 12 and 19 December 2013 proved the neck pain existed prior to that time and did not arise from any intervening surgery. In finding to the contrary the Member’s decision should be set aside.

Respondent’s submissions

The respondent submits that Ground 7 should be rejected for the same reason as given in relation to Ground 4. The findings of the Member as to the reasons for recording the neck in the physiotherapy notes being left shoulder surgery are to be found in the reasons at [50]. The respondent submits that the finding was reasonably open to the Member. The reference to 12 December 2013 is the referral of the appellant for physiotherapy by Dr Petrelis.

Consideration

For the reasons given with respect to Ground 4, Ground 7 should be rejected.
I have indicated in the discussion of Ground 4 why the respondent’s reference to paragraph [50] may be somewhat misleading (see paragraph [84] above). The Member said at [50] (where first appearing) that the “referral for physiotherapy was shown to be by Dr Petrelis and it may thus be presumed that the Physiotherapy Management Plan related to Mr Stone’s recovery from that surgery.” In my view such an inference was open to the Member.
Ground 7 is rejected.

GROUND 8

Appellant’s submissions

The appellant submits that the Member failed to read or properly consider the letter of the appellant’s solicitors when considering the report of Dr Swanson. The submission is “(t)he doctor was clearly and logically responding to the material facts in dispute vis the probable mechanism of the fall causing continuing neck pain and the temporary aggravation was caused by the subsequent fall in March 2014.” In so far as it was material to his path of reasoning the Member fell into error.

Respondent’s submissions

The respondent submits that it is unclear how this complaint relates to the findings made by the Member or how this is a ground of appeal under s 352(5) of the 1998 Act. The report of Dr Swanson dated 29 November 2022 responded to the letter of the appellant’s solicitors. The report of Dr Swanson was considered by the Member in the reasons at [29]–[32] and ultimately his opinion as to causation was rejected as part of the evaluative process.

Consideration

For the reasons given in relation to Ground 2, the rejection by the Member of Dr Swanson’s speculative conclusion as to causation was not in error. No error was demonstrated in the manner in which the Member dealt with Dr Swanson’s report.
Ground 8 of the appeal is rejected.

CONCLUSION

The appeal is dismissed. The Member’s conclusion is confirmed.

DECISION

The Certificate of Determination dated 2 June 2023 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

14 March 2024