Tamworth Regional Council v Meredith

[2025] NSWPICPD 20

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Tamworth Regional Council v Meredith [2025] NSWPICPD 20

APPELLANT:

Tamworth Regional Council

RESPONDENT:

Mark Meredith

INSURER:

StateCover Mutual Limited

FILE NUMBER:

A1-W22518/24

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

11 March 2025

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 Member’s Certificate of Determination dated 1 October 2024 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – No error of law where there is evidence, if believed, that would support the Member’s finding – Nicolia v Commissioner for Railways (1971) 45 ALJR 465; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 – alleged error of fact –Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied – drawing inferences from findings of fact – Flounders v Millar [2007] NSWCA 238 applied – the application of common or judicial knowledge – Strinic v Singh [2009] NSWCA 15 discussed – a party is bound by the conduct of its case in the proceedings below – University of Wollongong vMetwally (No. 2) [1985] HCA 28 applied – expert evidence – s 43 of the Personal Injury Commission Act 2020 – the Commission is not bound by the rules of evidence – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; State of New South Wales (Fire and Rescue NSW) v Sinclair [2025] NSWPICPD 8 applied – Dasreef Pty Ltd v Hawchar [2011] HCA 21; Honeysett v The Queen [2014] HCA 29 distinguished

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr R Brown, counsel

BBW Lawyers

Respondent:

Mr B McManamey, counsel

GMP Law

DECISION UNDER APPEAL:

Meredith v Tamworth Regional Council [2024] NSWPIC 541

MEMBER:

Mr A Halstead

DATE OF MEMBER’S DECISION:

1 October 2024

INTRODUCTION AND BACKGROUND

1. Mr Mark Meredith (the respondent) was employed by Tamworth Regional Council (the appellant) as a grader operator. He suffered an injury to his head, neck, right shoulder and right arm on 20 January 2020 when he tripped on debris on the job site and fell approximately 1.5 to 2.5 meters (described by him in his statement as “6–8 foot”[1]) down an embankment, landing heavily.

   [1] Respondent’s statement, Application to Resolve a Dispute (ARD), p 4, [11].

2. Liability for the injuries to the neck, right shoulder and right elbow was accepted.

3. In about mid-2022, the respondent began to experience pain and stiffness in his left shoulder, which gradually worsened. The respondent claimed that because of the difficulties in his right arm he was unable to perform tasks with his right arm and had to use his left arm for many daily activities.

4. The respondent asserted that because he was using his left arm more frequently in order to spare his right arm, his left shoulder symptoms were consequential to the right shoulder injury. The appellant disputed liability for the left shoulder.

5. The respondent commenced proceedings in Personal Injury Commission (the Commission), claiming $146,160 in respect of 42% whole person impairment, which included 7% whole person impairment of the left upper extremity.

6. The dispute proceeded to arbitration. The respondent initially asserted an injury to the right wrist, however on 16 July 2024 the Member issued a Direction in which he directed that the Application to Resolve a Dispute filed on 14 June 2024 be amended to withdraw the reference to a claim for a work related injury to the right wrist. The only dispute that the Member was required to determine was whether the left shoulder condition resulted from the right shoulder injury. The Member accepted that the respondent suffered a consequential condition in his left shoulder as a result of injury sustained on 20 January 2020 and remitted the matter to the President for referral to a medical assessor for assessment of the whole person impairment.

7. The appellant appeals the Member’s decision that the respondent’s left shoulder condition resulted from the right shoulder injury.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Both parties indicate that the appeal can be determined on the basis of the documents before the Commission and their submissions.

3. I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, including the submissions that the appeal can be determined on the basis of those documents and submissions. 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

The monetary threshold

1. Section 352(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) provides that:

   “There is no appeal under this section unless the amount of compensation at issue on the appeal is both—

   (a)     at least $5,000 (or such other amount as may be prescribed by the regulations), and

   (b)     at least 20% of the amount awarded in the decision appealed against.”

2. The respondent asserts that the threshold requirements of that section have not been met. The respondent indicates that the amount claimed in the proceedings is $146,160, the claim in issue is 7% whole person impairment in respect of the left shoulder and if the appeal is successful, the respondent’s whole person impairment would be reduced to 37%, for which the respondent would be entitled to the reduced amount of $120,210. The respondent submits that the amount in issue is therefore $25,950, which is only 18% of the amount claimed.

3. The appellant submits that there was no monetary amount awarded in this case and says that the respondent “has confused … the amount claimed by him in the ARD with the amount awarded in the decision appealed against”.[2]

   [2] Respondent’s submissions in reply, p 4, [5].

4. The appellant asserts that the threshold amount for the purposes of s 352(3)(b) is therefore $0 x 20%, which equates to $0. The appellant cites Mawson v Fletchers International Exports Pty Ltd[3] and Lilly v Tomago Aluminium Co Pty Ltd[4] and submits that the monetary and quantum thresholds in ss 352(3)(a) and 352(3)(b) are satisfied.

   [3] [2002] NSWWCCPD 5.

   [4] [2004] NSWWCCPD 62.

5. Neither of the parties’ submissions can be accepted.

6. There was no amount awarded by the Member in his Certificate of Determination. It is well settled that where there is no amount awarded (such as where there is an award for the respondent or where there is no award because the matter was referred to a medical assessor), subs (3)(b) of s 352 cannot apply, and the amount at issue in accordance with s 352(3)(a) is to be determined by reference to the amount of compensation claimed in the proceedings before the Member.[5] That amount must exceed $5,000.

   [5] Grimson v Integral Energy [2003] NSWWCCPD 29, [30]; Hawke v Stanyer & ors t/as Stanyer Partnership [2007] NSWWCCPD 208.

7. The respondent refers to the amount of $146,160 claimed in the ARD in respect of 42% whole person impairment and submits that if the 7% impairment of the left upper extremity is excluded from the assessment, the assessment would be 37%. The respondent’s calculation of the percentage is correct, as is the calculation of the amount of compensation payable for 37% whole person impairment ($120,210). The amount in issue is therefore $25,950, which clearly exceeds the monetary threshold of $5,000. The monetary threshold in 352(3) of the 1998 Act is satisfied.

Whether the decision is interlocutory

1. Section 352(3A) of the 1998 Act provides that:

   “There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”

2. The respondent submits that the Member’s decision is interlocutory because the Member remitted the claim pursuant to s 66 of the 1987 Act to the President for referral to a medical assessor. The respondent opposes the granting of leave for the appeal to proceed.

3. The respondent asserts that the appeal is delaying his assessment and is standing in the way of him receiving his compensation and preventing an award in his favour for interest on his lump sum entitlement. The respondent contends that there will be no prejudice to the appellant if the appeal is lodged after final orders are made in the dispute.

4. The appellant submits that the decision has determined the respondent’s right to an entitlement to compensation for the left shoulder condition and thus the decision is a final decision. In the alternative, the appellant submits that if leave is required, it should be granted because the decision affects the respondent’s entitlements to payment of his treatment expenses and his weekly compensation, as well as the lump sum entitlement.

5. Whether a decision in which liability has been determined but the claim for whole person impairment awaits assessment is interlocutory in nature has been discussed in numerous Presidential appeals.[6] Consistent with the decisions in those appeals, I determined in DGL (Aust) Pty Ltd v Martino[7] that a decision referring the worker for an assessment by a medical assessor following a determination of liability in favour of the worker was interlocutory. That case is on all fours with this case. Additionally, in South Western Sydney Area Health Service v Edmonds,[8] the Court of Appeal considered an appeal from a Presidential decision that involved an Arbitrator’s determination in favour of the worker that her lumbar and left knee symptoms were referrable to her accepted right knee injury. The appeal to the President was lodged prior to the claim being referred for assessment by an approved medical specialist [now a medical assessor]. McColl JA (with Tobias JA agreeing) made the following observation:

   “South Western Sydney Area Health Service seeks leave to appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act1998 ... from a decision of Deputy President Fleming of the Workers Compensation Commission of New South Wales in turn dismissing an appeal from a determination of Arbitrator Wynyard ... Leave is required because the Arbitrator’s determination, and hence the Deputy President’s decision, was interlocutory.”[9]

   [6] Moore v Greater Taree City Council [2009] NSWWCCPD 17; P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; Opera Services Pty Ltd v Williams [2023] NSWPICPD 25.

   [7] [2023] NSWPICPD 30.

   [8] [2007] NSWCA 16 (Edmonds).

   [9] Edmonds, [12].

6. The current referral to the medical assessor includes an assessment of the left upper extremity (shoulder). If the appeal does not proceed at this interlocutory stage, the assessment of the left upper extremity will take place and a Medical Assessment Certificate will be issued. If the appeal is then lodged and succeeds, the Medical Assessment Certificate will require amendment which would involve further procedures taking place in the Commission.

7. I do not accept that deferring the appeal until after the assessment would produce a lesser delay in the respondent receiving his entitlements than determining the appeal at this stage. A delay in the respondent receiving his entitlement to a lump sum would in any event occur if the appeal is deferred.

8. I am of the view that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined.

9. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act is therefore granted.

THE EVIDENCE

The respondent’s statement evidence

1. The respondent provided a statement dated 16 April 2024.[10] He advised that he had suffered an injury to his right shoulder in the course of his employment with the appellant, surgery was performed twice, and he recovered sufficiently to return to his pre-injury duties. He further advised that he suffered a second injury in the course of his employment on 20 January 2020, injuring his neck, right shoulder and right elbow. He described the mechanism of, and circumstances surrounding the injury. He advised that he was taken to Tamworth Base Hospital, underwent scans and was given a neck brace and painkillers and discharged into the care of his general practitioner, Dr Matthew Chan. He said that Dr Chan referred him to specialists for treatment of his neck and right arm, and for pain management. He stated that he received cortisone injections in about March and November 2020, was given several nerve blocks and neurotomy procedures and underwent surgery to the right shoulder on 23 July 2021. He said that after the surgery his biceps tendon ruptured.

   [10] ARD, pp 4–8.

2. The respondent advised that his neck pain deteriorated and he underwent surgery in the form of a cervical fusion and disc replacement, however there was little improvement in his neck symptoms. He described the extensive treatment provided to him, including treatment for anxiety and depression that had developed about three months after the injury. He listed the medications he was taking.

3. The respondent indicated that in about mid-2022, he began to experience pain and stiffness in his left shoulder. He explained that if he used his right arm for day-to-day activities, he would experience increased symptoms in the right arm and as a result, he avoided performing tasks with his right arm where possible and instead used his left arm. He said:

   “I relied on my left arm to lift things, to move things around, and to carry things like shopping bags. Over time I started to get niggling pains in my left shoulder. Over time I noticed that my left shoulder would feel very tired at the end of the day.”[11]

   [11] ARD, p 6, [30].

4. The respondent stated that his left shoulder pain gradually worsened, and he sought treatment from Dr Chan, who arranged an ultrasound of the left shoulder. He said that he also sought treatment from his physiotherapist.

5. The respondent provided a list of continuing symptoms and difficulties.

6. The respondent referred to the opinion of A/Prof Miniter, who he had attended at the request of the appellant. He took issue with various aspects of A/Prof Miniter’s report dated 31 January 2024. He said that:

   (a)    A/Prof Miniter’s opinion that he had not suffered a work injury was clearly wrong because his injury was well documented;

   (b)    he was not performing any physical work on his property other than sorting and cleaning small containers of nails and bolts when he was able, which was recommended by his physiotherapist;

   (c)    his calloused hands were as a result of over 30 years of employment with the appellant;

   (d)    the staining under his fingernails was most likely a consequence of sorting the nails, and

   (e)    his tanned arms were a result of taking walks around his property, with breaks, for an hour as recommended by his physiotherapist, and from the fact that he also liked to sit in the sun.

7. The respondent provided further statements dated 23 July 2024[12] and 31 July 2024[13] in response to a surveillance report arranged by the appellant. Nothing turns on that evidence in respect of this appeal.

The medical evidence

[12] Respondent’s Application to Admit Late Documents (AALD) dated 14 August 2024, pp 2–3.

[13] AALD dated 14 August 2024, pp 4–5.

Dr Matthew Chan, general practitioner

1. Dr Chan, the respondent’s treating general practitioner, provided a report dated 2 May 2024 which appears to be directed to the appellant’s legal representative in response to queries posed by him.[14] He advised that the respondent first consulted him in relation to his left shoulder symptoms on 13 April 2023 and then on 9 June 2023.

   [14] ARD, pp 32–33.

2. Dr Chan reported that at the first appointment, the respondent complained of experiencing pain in his left shoulder for just over a month, which was precipitated by particular movements. He noted that the respondent said that lifting the left arm overhead would often relieve the pain.

3. Dr Chan said that he arranged for the respondent to undergo an ultrasound of the left shoulder, which was performed on 12 May 2023 and the respondent returned to discuss the results on 9 June 2023. Dr Chan advised that the ultrasound disclosed left subacromial bursitis with impingement and he therefore referred the respondent for an ultrasound guided corticosteroid injection into the left bursa. Dr Chan was unaware as to whether the respondent underwent that procedure.

4. Dr Chan observed that the respondent had sustained a significant right shoulder injury and injury to the cervical spine on 20 January 2020 which required surgical intervention and extensive physical rehabilitation and caused the respondent to remain significantly incapacitated. He advised:

   “It is reasonable to deduce that as a result, especially for the retracted [sic] period of recovery, that [the respondent] would have overcompensated use of his left shoulder and arm, for activities of daily living. Along with the gradual onset of left shoulder pain, with no specific reported instigating injury, it is my opinion that the injuries sustained on the 20/1/2020 substantially contributed to the pain and symptoms in his left shoulder.”[15]

   [15] Dr Chan’s report p 2, ARD, p 32.

5. Dr Chan’s clinical notes were in evidence, commencing from 7 June 2019.[16] On 26 July 2021, Dr Chan noted that the respondent had undergone right shoulder surgery on 23 July 2021.[17] At various consultations between 26 October 2021 and 15 February 2022, Dr Chan recorded that the respondent’s right shoulder was progressing well.[18] The notes from that date up to 11 April 2023 referred to the respondent’s “pain” but did not make specific reference to either shoulder. On 13 April 2023, Dr Chan recorded complaints of left shoulder pain, which the respondent said he had been experiencing for more than a month. Dr Chan arranged for an ultrasound investigation.[19]

   [16] ARD, pp 177–204 and pp 101–141.

   [17] ARD, p 202.

   [18] ARD, pp 102–108.

   [19] ARD, p 131.

6. On 31 October 2022, Dr Chan took part in a case conference with the appellant’s rehabilitation consultant, following which he certified the respondent as having capacity to work three hours per day three days per week.[20] On 28 November 2022, Dr Chan noted that the respondent had met with the appellant and a proposal for the respondent to perform some local depot or library work was made.[21] On 22 December 2022, Dr Chan recorded that the respondent had commenced a gardening job in the community garden two days previously. On 19 January 2022, Dr Chan noted that the respondent indicated that he attempted to do gardening work but could not manage three days and had to leave early.[22]

   [20] ARD, p 122.

   [21] ARD, p 123.

   [22] ARD, p 126.

Associate Professor Mitchell Hanson, neurosurgeon and spinal surgeon

1. Dr Chan referred the respondent to A/Prof Hansen for management of his cervical symptoms. Although A/Prof Hansen did not treat the respondent’s shoulder symptoms, it is relevant to note the complaints recorded by A/Prof Hansen in his various reports.

2. On 26 April 2021, A/Prof Hansen recorded that the respondent “still has significant [right] shoulder pain which goes down the bicep a little”.[23] On 28 April 2022, A/Prof Hansen observed that the respondent still had “terrible radicular pain down his arm. It’s been an ongoing problem. He is still also having some shoulder issues.”[24]

   [23] ARD, p 65.

   [24] ARD, p 66.

1. It is also relevant to note that on 10 August 2022, Associate Professor Mitchell Hanson performed surgery on the C5/6 and C6/7 levels of the respondent’s cervical spine at Newcastle Private Hospital.[25]

   [25] Operation record dated 10 August 2022, ARD, p 71.

Dr Benjamin East, orthopaedic shoulder, elbow and hand surgeon

1. Dr Chan referred the respondent to Dr East for management of his right shoulder injury. Dr East reported to Dr Chan on 26 May 2021.[26] He referred to the independent medical examination of the respondent arranged by the appellant with A/Prof Paul Miniter. He noted that A/Prof Miniter’s recommendation was that the respondent should “absolutely not” undergo surgery on the right shoulder, and that A/Prof Miniter observed that the MRI scan disclosed that the rotator cuff was intact. Dr East viewed the images from the scan and observed that he was unable to understand how the report of the MRI scan could say that the supraspinatus, infraspinatus and subscapularis were intact when there was a large area on the images which was completely incomprehensible.

   [26] ARD, pp 67–68.

2. Dr East reported that the respondent was experiencing ongoing difficulties with, and significant pain in his right shoulder. He said that the clinical examination of the shoulder confirmed absolutely that there was a mechanical component present. He reviewed a CT arthrogram which he said did disclose some delamination and injury to the rotator cuff which he believed to be resulting from the fall. He considered that the best way forward would be to offer the respondent a rotator cuff assessment, a debridement, and possibly a repair with a collagen-based implant to augment the repair.

3. Dr East wrote to Dr Chan on 23 July 2021, confirming that he had performed surgery on the respondent’s right shoulder that day. He provided advice on the respondent’s future care and the expected recovery period.[27] On 6 September 2021, Dr East advised Dr Chan that the respondent was progressing well.[28]

   [27] Reply to Application to Resolve a Dispute (reply), pp 57–58.

   [28] Reply, p 59.

4. Dr East reported to Dr Chan again on 10 November 2021.[29] He advised that the respondent was very pleased with his progress following the right shoulder surgery and his shoulder function had improved.

   [29] ARD, p 69.

5. On 25 August 2022, Dr East reported that the respondent considered that his shoulder was less painful and significantly better than it was prior to the surgery. He was of the view that the respondent was fit for some suitable sedentary type of work.[30]

   [30] ARD, p 72.

Ms Alicia Seery, physiotherapist

1. Dr Chan also referred the respondent to Ms Seery for assessment and treatment of his neck and right shoulder. Ms Seery’s clinical notes were in evidence and disclosed that at a consultation on 24 August 2022, the respondent complained of pain in the neck and (for the first time) bilateral shoulder pain and bilateral pins and needles.[31]

   [31] ARD, p 265.

2. Ms Seery reported to Dr Chan on 16 December 2022.[32] She recorded that the respondent had undergone surgery to his cervical spine 15 weeks earlier and continued to experience neck pain, as well as right shoulder pain. She said that the respondent had also developed left shoulder pain, which was progressively worsening with him performing more activities at home. She observed that it appeared that the respondent had developed rotator cuff tendinopathy in his left shoulder. She recorded that the respondent was keen to return to suitable duties. She discussed the employment possibilities and the restrictions that should be put in place.

   [32] ARD, p 74.

3. On 20 January 2023, Ms Seery reported that the respondent complained that his neck pain had returned to the state it was prior to the surgery. She said he again complained of progressively worsening left shoulder pain, particularly since a month ago, that had been present for six months. She noted that the respondent had attempted to perform two days per week of work in the community garden but was unable to complete many tasks and those that he did complete caused a significant increase in his pain by the afternoon. Ms Seery provided details of her findings on examination and said that she had an in-depth discussion with the respondent about his medication, which the respondent was heavily reliant upon, and discussed with the respondent the possibility of returning to work.[33]

   [33] ARD, pp 78–79.

Radiological investigations

1. On 12 May 2023, the respondent underwent an ultrasound of the left shoulder. The ultrasound report of Dr Janet Gray diagnosed subacromial bursitis with impingement.[34]

   [34] ARD, p 100.

Professor Y A E Ghabrial, orthopaedic and spinal surgeon

1. The respondent’s legal representatives arranged for him to be medically examined and assessed by Prof Ghabrial, who reported to the legal representatives on 9 October 2023.[35] He provided a brief summary of the injury and the treatment offered and reviewed the radiological investigations. He noted that the investigations of the neck confirmed herniated discs and osteophyte disc complex at the C5/6 and C6/7 levels and that there was a tear in the rotator cuff and long head of the biceps in the right shoulder. He further noted the surgery performed on the right shoulder to repair the right rotator cuff and re-attach the long head of the biceps, which had unfortunately re-ruptured.

   [35] ARD, pp 28–31.

2. Prof Ghabrial observed that the respondent had “developed pain in his left shoulder consequential to the pain in the right shoulder”.[36] He performed a physical examination of the neck and recorded his findings. He examined both the right shoulder and the left shoulder and reported that the respondent experienced tenderness in both shoulders, with pain, stiffness and weakness in the right shoulder, pain and tenderness in his right elbow with a diagnosis of chronic medial epicondylitis and pain and tenderness over the whole of the right wrist. He was of the view that there was a probable partial tear of the left rotator cuff and that the right wrist joint symptoms were referable to a chronic sprain.

   [36] ARD, p 28.

3. Prof Ghabrial described the injuries received by the respondent and described the respondent’s disabilities as severe. He expressed the view that the respondent was not fit to return to employment, and the respondent’s employment was the main contributing factor to the injuries. He assessed the respondent’s whole person impairment as a combined 42%, which included 7% whole person impairment of the left upper extremity (shoulder).

4. Prof Ghabrial provided a report dated 7 August 2024 in respect of further queries posed by the respondent’s legal representatives.[37] He responded to various matters pertaining to the respondent’s neck, right arm and right wrist injury. He advised that the respondent had undergone a right rotator cuff tear repair performed by Dr East but then developed a re-rupture of the rotator cuff. He confirmed that the respondent’s symptoms were all referrable to the injuries received in his employment.

   [37] AALD dated 14 August 2024, pp 7–8.

Associate Professor Paul Miniter, orthopaedic surgeon

1. A/Prof Miniter performed an independent medical examination of the respondent at the request of the appellant. He provided a report dated 13 May 2021.[38] He recorded a background history of the respondent experiencing extensive symptoms of anxiety and depression for his entire life. He noted that at the time of examination the respondent was working nine hours in three shifts, three days per week. He noted that the respondent had previously suffered a right shoulder injury resulting in surgery.

   [38] Reply, pp 31–38.

2. A/Prof Miniter took a history of the injury and referred to the extensive treatment provided to the respondent in respect of the injury to the neck, which he considered was the dominant injury. He described the right shoulder injury as “certainly problematic, but it is not the main issue.”[39]

   [39] Associate Professor Miniter’s report p 3, reply, p 33.

3. After performing a clinical examination, A/Prof Miniter indicated that in his opinion, surgical intervention in respect of the right shoulder was contraindicated because it would be most unlikely that the surgery would be of benefit, given the results of the MRI scan undertaken in January 2021 which disclosed an older rotator cuff tear with “minor persistence of rotator cuff insufficiency,”[40] which was a small defect and likely to relate to the earlier surgery. He said that in addition, the respondent had a significant history of anxiety and depression and taking that into account, he was of the view that there was a high risk of a poor outcome from any shoulder surgery.

   [40] ARD p 35, [4].

4. On 5 July 2021, A/Prof Miniter reviewed documentation provided to him and responded to further queries from the appellant.[41] He reiterated that in his opinion the respondent would not benefit from surgery because the respondent had undergone previous surgery, had a significant dependency on narcotic analgesic patches, had been diagnosed with anxiety and depression and the investigations showed that the rotator cuff was not grossly disrupted. He was of the view that the respondent was displaying significant abnormal illness behaviour.

   [41] Reply, pp 28–30.

5. A/Prof Miniter provided a further report dated 31 January 2024.[42] He noted that (in his opinion, unfortunately) the respondent had undergone surgery to both his cervical spine and the right shoulder. He further noted that the respondent indicated that he had experienced no benefit from the surgeries and regretted having undergone them. A/Prof Miniter commented that he was unable to determine any indications for surgery. He took the history that the respondent was not working and that the respondent believed he had no capacity for work.

   [42] Reply, pp 39–46.

6. After performing a physical examination of the respondent, A/Prof Miniter observed that the evidence made available to him did not support an allegation of a workplace injury or the respondent’s assertion that he had an inability to perform work. He noted that the respondent’s hands were stained and calloused, and there was staining under his fingernails, which would all suggest he was performing heavy work. A/Prof Miniter said that he believed that the respondent was in fact working and was fit to perform his normal duties. He observed that the signs of use on the respondent’s hands were consistent with physical work in some capacity and were indicative of a capacity for work. He further observed that the respondent was heavily tanned below the mid-level of his arms which was also consistent with the respondent pursuing outdoor activities.

7. A/Prof Miniter advised that he could not clearly identify evidence of an injury to the right shoulder, and it was “most likely that the … right shoulder was simply … [an] incomplete repair due to poor tissue quality at the right supraspinatus … associated with the original surgery”. He considered that the poor outcome from the surgeries indicated that he had been proven correct in his opinion.

8. A/Prof Miniter replied to a query from the appellant as to whether he believed that the respondent suffered an injury to his left shoulder or right wrist in the incident on 20 January 2020. He advised that he could not see any evidence of an injury to the left shoulder or right wrist on 20 January 2020, there were no radiological investigations and that, on examination, both of those areas were found to be normal. He further advised that there was no evidence of a consequential “injury” to the left shoulder and the symmetrical range of motion of both shoulders found on examination indicated that there may be a degree of abnormal illness behaviour.

9. A/Prof Miniter provided his opinion that the respondent could return to work and assessed the respondent’s whole person impairment but did not provide an assessment of the left shoulder, noting that the left shoulder had not been injured.

10. A/Prof Miniter again reported to the appellant on 17 July 2024.[43] The issues discussed in that report relate to the surveillance report arranged by the appellant. The report was admitted into evidence for the sole purpose of the medical assessment and does not touch upon the issues raised in the appeal.

    [43] Appellant’s AALD dated 5 September 2024, pp 1–3.

Dr Timothy Siu, consultant neurosurgeon

1. Dr Siu was asked by the appellant to examine the respondent and provide his opinion in respect of the respondent’s injury. He reported to the appellant on 11 February 2022.[44] Dr Siu took a history of the respondent’s injury in January 2020, in which the respondent injured his neck and right shoulder. He noted a past history of the respondent undergoing surgical repair of the right shoulder in 2017, following which the respondent was able to return to work. He recorded the respondent’s ongoing symptoms in the cervical spine, which at times were reported to be severe. Dr Siu took a history of the respondent receiving ongoing physiotherapy which was directed mainly to the right shoulder and also recorded that the respondent suffered from a degree of mental health issues. He diagnosed the respondent as suffering from axial neck pain with episodic right radicular upper limb pain which could reasonably be attributed to C6/C7 foraminal stenosis. He did not discuss the left arm condition.

   [44] Reply, pp 60–66.

THE MEMBER’S REASONS

1. The Member noted that it was accepted that the respondent injured his right shoulder, right elbow and cervical spine in the injury on 20 January 2020. He observed that the only issue for determination was whether the respondent’s left shoulder condition resulted from the accepted injuries. The Member reviewed the evidence contained in the respondent’s statement dated 16 April 2024. He quoted the respondent’s explanation as to how the injury occurred and reproduced the passages in that statement in which the respondent provided a history of the onset and progression of left shoulder symptoms.

2. The Member further reviewed the relevant medical evidence addressing the respondent’s left arm condition and the observations provided by Ms Seery, Dr Chan, Dr Gray, Prof Ghabrial, and A/Prof Miniter. He summarised the submissions of both parties.

3. The Member noted that the respondent bore the onus of proving his case. He referred to the observations of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates[45] that the Commission is required to apply a commonsense approach to the determination of causation. The Member further referred to Kumar v Royal Comfort Bedding Pty Ltd,[46] in which Roche DP said that the worker is not required to establish that they had suffered an injury within the meaning of s 4 of the 1987 Act in order to succeed in a claim for a consequential condition. He summarised the facts in Moon v Conmah Pty Limited[47] (which involved the development of left shoulder symptoms following a right shoulder injury) and recorded the observations of Roche DP in that case that all that was necessary was to establish that the left shoulder symptoms and restrictions resulted from the right shoulder injury, and that the Member was in error to require the worker to establish an injury had occurred.

   [45] (1994) 10 NSWCCR 796.

   [46] [2012] NSWWCCPD 8.

   [47] [2009] NSWWCCPD 134.

4. The Member added that it was not necessary to identify the existence of pathology, however there must be an unbroken chain of connection between the accepted injury and the condition.

5. The Member further referred to the requirement for him to be satisfied that it was more probable than not that the left shoulder condition resulted from the right shoulder injury and that, according to Nguyen v Cosmopolitan Homes,[48] he was required to have a feeling of “actual persuasion” that the onus was satisfied. He noted that the appellant asserted that the respondent’s onus of proof had not been satisfied.

   [48] [2008] NSWCA 246.

6. The Member observed that:

   “The medical evidence of Dr Chan, Professor Ghabrial, Dr Gray and Ms Seery is that the [respondent] suffers a left shoulder condition. It seems likely on the balance of that evidence the condition, at least [as] of 12 May 2023, was subacromial bursitis and impingement, although it is unnecessary for the Commission to determine whether that diagnosis is confirmed.”[49]

   [49] Meredith v Tamworth Regional Council [2024] NSWPIC 54 (reasons), [37].

7. The Member noted that A/Prof Miniter could not find evidence of an “injury” or of a consequential condition in the left shoulder. He observed that A/Prof Miniter did not give consideration to the findings recorded in the ultrasound report provided by Dr Gray dated 12 May 2023, which A/Prof Miniter had reviewed when preparing his report dated 31 January 2024. The Member accepted the respondent’s submission that little weight should be afforded to A/Prof Miniter’s opinion, which was predicated upon there being no investigations of the left shoulder, which was clearly wrong. He considered that A/Prof Miniter had overlooked the ultrasound report, which the Member described as “highly relevant” and “critical to providing a fully informed opinion on the true state of the [respondent’s] left shoulder.”[50] He concluded that, in those circumstances, no weight could be afforded to A/Prof Miniter’s opinion.

   [50] Reasons, [38].

8. The Member pointed out that the remaining available medical evidence indicated that the respondent suffered from a left shoulder condition, which became symptomatic during 2022, and developed to the extent that the respondent required physiotherapy treatment late in that year, as recorded by Ms Seery in her report dated 16 December 2022. The Member concluded that he was satisfied that the respondent developed a condition in his left shoulder.

9. The Member referred to the respondent’s argument that the additional loading and use of his left arm and shoulder caused the left shoulder condition and its deterioration. He pointed to the respondent’s evidence that he avoided use of his right arm and shoulder and used his left arm whenever possible to perform lifting, carrying and moving things, noticing pain and stiffness in the left shoulder from about mid-2022.

10. The Member noted that the appellant asserted that the lifting performed by the respondent was confined to lifting shopping bags, which would occur only occasionally, such as the usual shopping undertaken once per week, and that this infrequent activity could not reasonably have been the cause of the shoulder condition. The Member considered that the task of lifting shopping bags was simply an example of what tasks the respondent performed. He noted that the respondent’s evidence was that he would “carry things like shopping bags” and in his view that did not intend to exclude other lifting tasks in his day-to-day activities which he otherwise would have performed with his right arm and shoulder.

11. The Member observed that he was satisfied that the evidence established that in activities where the respondent would have used his right arm but for the injury, the respondent used his left arm and shoulder. The Member pointed to the respondent’s evidence that “[d]ue to my injured right shoulder and arm I avoided doing most tasks with my right arm”, and reasoned that it could reasonably be inferred that some preference for using the left arm occurred either immediately or soon after the injury on 20 January 2020, developing pain and stiffness in about mid-2022 and resulting in the need for physiotherapy treatment.

12. The Member referred to the appellant’s submission that:

    (a)    the clinical notes of the general practitioner indicated that the respondent’s right shoulder improved from 26 October 2021 up until 15 March 2022;

    (b)    the respondent commenced a gardening job in December 2022, and

    (c)    on the basis that the right side would have been available at that time, the Commission could not be satisfied that the left shoulder was overloaded.

13. The Member considered that, on the contrary, the evidence supported the respondent’s assertion that he increased his use of the left arm. The Member explained that it could be inferred that the respondent’s right arm improved because he was using his left arm instead.

1. The Member agreed with the appellant’s submission as to the evidence of A/Prof Ghabrial having no probative value. He noted that A/Prof Ghabrial referred to pain in the left shoulder as a consequence of the right shoulder injury but observed that A/Prof Ghabrial did not provide an explanation for that statement. He added that Ms Seery did not provide an opinion on the issue of causation of the left shoulder condition.

2. The Member referred to Dr Chan’s view that, in the absence of a specific event affecting the condition in the left shoulder the condition “would have” resulted from overcompensation. He considered the submissions made by the appellant that Dr Chan’s reasoning was insufficient because the left shoulder condition could have had many causes which were not considered by Dr Chan, so that the causal chain was not established. The Member observed:

   “The reasoning process outlined in Dr Chan’s report about the cause of the [respondent’s] left shoulder condition need only be adequate to explain his conclusion. It is not required to be overly comprehensive or consider all possibilities. It should provide a proper basis for the opinion. It is accepted that Dr Chan’s report is brief. However, its content is directly on point and relevant to the cause of the [respondent’s] left shoulder condition. When read in totality the opinion of Dr Chan is that the [respondent’s] right shoulder injury is the most likely cause of the left shoulder condition because the nature of the right-side injury would have required overcompensated use of the left side. It is evident Dr Chan did consider other possibilities, the most obvious being an ‘instigating injury’ to the left side as a potential cause of the condition, but as there had been no injury to that side, it was discounted. He was not required to consider every other possibility in circumstances where the right shoulder explanation was obvious to him and apparently the most plausible given his stated opinion.”[51]

   [51] Reasons, [49].

3. The Member noted that the appellant also submitted that Dr Chan’s reasoning was deficient because Dr Chan considered that it was “reasonable to deduce” that there was overcompensation because of the right arm injury. The Member declined to accept that that term indicated that Dr Chan had adopted a “philosophical thought exercise.” He said that the phrase was one of ordinary usage, and Dr Chan arrived at his conclusion on the basis of information already known to him in his position of being the respondent’s treating general practitioner. The Member said that Dr Chan’s explanation was all that was required, and his view that the respondent would have used his left side because of the right sided injury was clear and entirely plausible. He accepted Dr Chan’s opinion.

4. The Member concluded that, applying common sense, he was satisfied that it was more probable than not that the respondent’s left shoulder condition resulted from the right shoulder injury because the respondent was required to use the left arm much more frequently in the performance of his daily activities. He added that he was persuaded that the respondent met the requisite onus of establishing that the left shoulder condition resulted from the right shoulder injury sustained on 20 January 2020.

5. The Certificate of Determination issued on 1 October 2024 records:

   “The Commission determines:

   1.      It is undisputed the [respondent] suffered injury to his cervical spine, right shoulder and right elbow in the course of his employment with the [appellant] on 20 January 2020.

   2.      The [respondent] suffered a consequential condition to his left shoulder as a result of injury sustained on 20 January 2020.

   3.      The matter is remitted to the President for referral to a Medical Assessor for assessment of the right upper extremity (shoulder and elbow), left upper extremity (shoulder) and cervical spine arising from injury on 20 January 2020.

   4.      The documents to be reviewed by the Medical Assessor are:

   (a) the Application to Resolve a Dispute and attached documents;

   (b) the [appellant’s] Reply and attached documents;

   (c) the [respondent’s] Application to Admit Late Documents dated 14 August 2024;

   (d) the [appellant’s] Application to Admit Late Documents of 5 September 2024 annexing the report of [A/Prof] Paul Miniter dated 17 July 2024, and

   (e) this Certificate of Determination with reasons.”

GROUNDS OF APPEAL

1. The appellant brings two grounds of appeal as follows:

   (a)    Ground One: The Member erred in fact and/or law by finding that there was an increased loading to the respondent’s left upper extremity as a result of the injury to the right upper extremity, and

   (b)    Ground Two: The Member erred in law in accepting the opinion of Dr Chan that the respondent’s left shoulder condition resulted from the right shoulder injury.

SUBMISSIONS

As to Ground One

The appellant’s submissions

1. The appellant submits that the Member made a material error of fact by finding that, but for the injury, the respondent would have used his right arm to perform most of his daily activities and that it became necessary for the respondent to extensively use his left arm for activities of daily living because of the right arm injury. The appellant submits that the evidence before the Commission did not support that finding. The appellant says that the Member relied upon the respondent’s statement evidence, which was that:

   (a)    the respondent began to notice pain and stiffness in the left shoulder in 2022;

   (b)    the respondent avoided using his right arm because increased activity would increase the levels of pain in the right arm;

   (c)    the respondent would try to use his left arm whenever possible;

   (d)    the respondent relied upon his left arm for lifting things, carrying things such as shopping and moving things around;

   (e)    over time, the respondent began to experience niggling pain in his left shoulder, and

   (f)    the left shoulder pain increased and became worse.

2. The appellant says that the respondent was reliant upon the assertion that he was applying additional loading on, and increasing use of, his left arm and that that caused the deterioration of the left shoulder condition. The appellant contends that the respondent did not identify what things he was carrying, other than shopping bags, or what he had to lift or move. The respondent says that, other than the reference to shopping bags, there was no evidence adduced as to the things he was lifting moving or carrying, the weight of those things, or the frequency or duration of those actions. The respondent asserts that in the absence of such evidence, it was not open to the Member to make the findings that he made.

3. The appellant adds that, in the absence of direct evidence, the Member’s conclusions must have been based upon inferences drawn in relation to those matters. It refers to Ipp JA’s observation in Flounders v Millar[52] that the choice between conflicting inferences must be more than conjecture. The appellant says that the respondent’s evidence raises multiple competing inferences, such as that in mid-2022, when the respondent said that he developed left shoulder pain, the respondent was waiting for neck surgery and then recovering from that surgery. The appellant asserts that, given the nature of the cervical injury and the nature of the proposed surgery, it would have been highly unlikely that the respondent undertook any strenuous activity during that time. The appellant contends that it was at least likely that any additional use of the limb did not impose stress upon the left shoulder, which constitutes a competing inference.

   [52] [2007] NSWCA 238 (Flounders).

4. The appellant asserts that there is a difference between increased use of the left upper limb and increased loading. It refers to Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig[53] in which Keating P discussed the decision-maker’s obligation to make findings of fact on proved evidence and not on matters of common or judicial knowledge, which might amount to a denial of procedural fairness. The appellant submits that the Member’s findings of fact are not based on proven evidence and thus the Member erred and the Certificate of Determination should be revoked.

   [53] [2014] NSWWCCPD 48 (Craig).

The respondent’s submissions

1. The respondent submits that the Member had the benefit of the respondent’s statement dated 16 April 2023. The respondent summarises that evidence and argues that the evidence supports the contention that as a result of the right shoulder injury, he began to use his left arm for a wide variety of activities. The respondent submits that his evidence was unchallenged. He says that the Member was correct to observe that the reference to shopping bags was just one example of the tasks undertaken.

2. The respondent asserts that that evidence was sufficient to permit the Member to conclude that prior to injury the respondent used his right arm for everyday tasks but after the injury used his left arm and shoulder for most of the tasks of daily living.

3. The respondent contends that, contrary to the appellant’s submissions, his case did not rely on a finding of additional loading on the left shoulder, in the sense that the respondent was lifting weights. He says that his case was that he was using the left arm more often than prior to the injury to and the restrictions in the right shoulder. He pointed to the Member’s reasons at [40], where he says the Member acknowledged that that was the respondent’s case.

4. The respondent submits that Dr Chan’s opinion did not require a finding as to the weights that were to be lifted, or any consideration of the nature of the things the respondent lifted or carried and for what duration. The respondent contends that none of the doctors indicated that they needed those details in order to arrive at their opinions and Dr Chan was satisfied that the history provided to him was sufficient.

5. The respondent refers to the evidence of Professor Ghabrial, who was satisfied that the history provided was sufficient to reach a conclusion that the pain in the left shoulder resulted from the right shoulder injury. The respondent also points to the evidence of A/Prof Miniter and submits he also did not indicate that it was necessary to have more detail about the activities when determining that there was no evidence of a consequential condition in the left shoulder. The respondent says that A/Prof Miniter’s opinion did not rest upon a mechanical cause but was based on the fact that he did not consider that there was an injury in the left shoulder.

6. The respondent quotes from Dr Chan’s reasoning at page 33 of the ARD and submits that Dr Chan was obviously expressing his medical opinion based upon medical knowledge, which was that the overuse of the left shoulder placed strain on the left shoulder and led to the left shoulder condition. The respondent submits that such a mechanism is commonplace in the Commission and as an expert tribunal, the Commission was entitled to accept that opinion without further explanation. The respondent asserts that it is a commonsense finding, and is consistent with other cases in the Commission, the Member was entitled to apply commonsense and was also entitled to apply specialist knowledge to the evidence which includes medical knowledge.

7. The respondent submits that, in any event, Dr Chan set out the basis for his opinion, which was that there was overcompensation because of the right shoulder injury, which was consistent with the respondent’s own evidence.

8. The respondent reiterates that the appellant made no challenge to the respondent’s evidence of overuse and in those circumstances, no further evidence was required. The respondent says that the appellant has not shown that further evidence in support of the Member’s conclusion was necessary, or that the Member’s conclusion was not available to him.

9. The respondent contends that the appellant has failed to identify where the Member fell into error and without having done so, there is no basis upon which to overturn the Member’s decision, so that this ground of appeal should be dismissed.

As to Ground Two

The appellant’s submissions

1. The appellant asserts that Dr Chan’s report does not expose his reasoning process, and it appears that Dr Chan considered that because there was ‘overcompensation’, the causal link was established. The appellant says that Dr Chan’s opinion is based on the assumption that because the left shoulder symptoms followed the assumed overcompensation of the left shoulder, the two must be related. The appellant submits that this is a “post hoc ergo propter hoc” fallacy (a phrase in Latin meaning ‘after this, therefore because of this’.) The appellant contends that Dr Chan failed to explain how or why the left shoulder condition could have been caused by additional use of the left arm. The appellant says that the gradual onset of pain is an insufficient basis upon which Dr Chan could found his opinion.

2. The appellant submits that Dr Chan’s clinical records are not of assistance and do not shed light upon the doctor’s reasoning. The appellant contends that the relevant entries in the doctor’s clinical notes between 23 January 2020 and 16 March 2023 disclose an improvement in the right shoulder injury, which ought to have resulted in at least a reduction of use of the left arm.

3. The appellant refers to the Court of Appeal decision in Hancock v East Coast Timber Products Pty Ltd,[54] in which Beazley JA (as her Excellency then was) indicated that the Commission is required to be satisfied that the expert evidence provides a satisfactory basis upon which the Commission’s findings can be made. The appellant further refers to Samuels JA’s observations in in Paric v John Holland Constructions Pty Ltd[55] and those of the High Court in Paric v John Holland Constructions Pty Ltd[56] in respect of the evaluation of expert evidence and cites Dasreef Pty Ltd v Hawchar[57] and Honeysett v The Queen[58] in which the High Court discussed what was required of an expert witness.

   [54] [2011] NSWCA 11 (Hancock).

   [55] [1984] 2 NSWLR 505 (Paric).

   [56] [1985] HCA 58 (Paric No 2).

   [57] [2011] HCA 21 (Dasreef).

   [58] [2014] HCA 29 (Honeysett).

4. Quoting from Dasreef at [37], the appellant submits that “it is necessary that expert evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion”.[59]

   [59] Appellant’s submissions, [32].

5. The appellant further quotes from Honeysett at [24] to submit that Dr Chan’s opinion is not presented “in a way that makes it possible for a Court to determine that it is so based.” The appellant submits that it is not self-evident that Dr Chan’s opinion is based upon his medical expertise. The appellant points out that the Member arrived at the same conclusion by adopting a commonsense approach, without any specialist expertise and that that “undermines any suggestion that Dr Chan’s opinion must have been derived from his specialised knowledge as opposed to his subjective impression.”[60]

   [60] Appellant’s submissions, [35].

6. The appellant asserts that Dr Chan’s opinion should have been afforded no weight and should not have been accepted. The appellant further asserts that the Member erred in law by accepting Dr Chan’s opinion, and the Certificate of Determination should therefore be set aside.

The respondent’s submissions

1. The respondent submits that on a fair reading of Dr Chan’s report, Dr Chan accepted that there was overuse of the left shoulder and explained that that, together with the gradual onset of shoulder pain, made it reasonable to come to the conclusion that the injuries suffered by the respondent on 20 January 2020 contributed in a substantial way to the development of the pain and symptoms in the left shoulder. The respondent submits that that reasoning explains medically that the increased use of the left shoulder was the mechanism that caused the onset of symptoms. The respondent says that Dr Chan’s reasoning path was clear and based upon the doctor’s medical knowledge, and it was not necessary for the doctor to describe the mechanism of causation in any greater terms.

2. The respondent indicates that the appellant does not identify why the doctor’s explanation is insufficient in circumstances where the appellant did not identify any other cause of the symptoms in the left shoulder or suggest that overuse was not a well-known causal mechanism for the development of a consequential condition.

3. The respondent submits that the fact that a conclusion can also be reached by the application of commonsense is not relevant to the question of the application of medical expertise. The respondent asserts that the appellant acknowledges that it was open to the Member to reach his conclusion by applying commonsense reasoning.

4. The respondent asserts that the only relevance the application of commonsense has is that if the conclusion can be reached on a commonsense basis, then it is less necessary for medical evidence to flesh out details of the application of medical knowledge. The respondent contends that, in this case, all that is required to reach the conclusion is to apply the principle that overuse can cause a consequential condition. The respondent says that in a case where commonsense does not provide an answer, it may be necessary to provide greater detail of the medical knowledge that supports the medical opinion, particularly where the opinion is controversial.

5. The respondent submits that in this case the conclusion is “unexceptional and to be expected,”[61] and points out that there is no competing opinion.

   [61] Respondent’s submissions, [35].

6. The respondent submits that the ground of appeal should be dismissed.

The appellant’s submissions in reply

1. The appellant sought to lodge submissions in reply to the respondent’s submissions which were outside of the timetable set by the Delegate of the President. On the appellant’s application for an extension of time, the Delegate granted the extension, and the submissions were accepted by the Commission. The submissions dealt with the issues raised by the respondent in respect of whether the decision was interlocutory and whether the appeal met the monetary threshold (discussed above). There were no further submissions made in reply to the respondent’s substantive appeal submissions.

THE RELIEF SOUGHT

1. The appellant seeks to have the Certificate of Determination revoked and for the dispute to be redetermined by the Presential Member, and an award entered in its favour in respect of the allegation of the consequential condition in the left shoulder.

2. The respondent submits that the appeal should be dismissed, but in the event that the appeal succeeds, the dispute should be remitted to a different non-presidential member for re-determination.

CONSIDERATION

Ground One: The Member erred in fact and/or law by finding that there was an increased loading to the respondent’s left upper extremity as a result of the injury to the right upper extremity

1. Ground One of the appeal as pleaded in paragraph [11] of the appellant’s submissions alleges errors of fact and/or law. In its substantive submissions immediately below the identified grounds, the appellant asserts solely an error of fact. For the sake of caution, it is assumed that the appellant proceeds on the basis that Ground One asserts error of fact and/or law.

2. The appellant asserts that the Member made a material error in finding that, but for the injury, the respondent would have used his right arm to perform most of his duties. In his statement, the respondent gave evidence that:

   “Due to my injured right shoulder and arm I avoided doing most tasks with my right arm. Each time I used my right arm for any day to day task I would experience increased pain throughout my right arm and shoulder. In order to avoid the increased levels of pain I avoided doing anything I could with my right arm. If I had no choice but to use my right arm I would, but where possible I tried to do anything I could with my left arm.”[62]

   [62] Respondent’s statement dated 16 April 2024, ARD p 6, [29].

1. The transcript of the arbitration proceedings discloses that there was no evidentiary challenge, either on the basis of cross-examination or contrary evidence, to the respondent’s evidence that, but for the injury, he would have used his right arm to do most tasks. In those circumstances, the Member cannot have erred in accepting that, but for injury, the respondent would have used his right arm to do most tasks prior to the injury.

2. The appellant asserts that the Member erred by finding that, because of the right arm injury, the respondent extensively used his left arm to attend to daily activities when there was no evidence to support that finding. Presumably, this is the basis put by the appellant upon which its allegation (if made) that the Member erred in law rests. Where there is no evidence to support a finding of fact which is crucial to an ultimate finding, there is an error of law. However, if there is evidence, which, if believed, would support the finding, there is no error of law.[63]

   [63] Nicolia v Commissioner for Railways (1971) 45 ALJR 465; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32.

3. In this case, there was evidence from the respondent that he did use his left arm to perform most tasks on a day-to-day basis. In addition to his evidence at [29] of his statement (quoted at [115] above), he said:

   “I relied on my left arm to lift things, to move things around, and to carry things like shopping bags. Over time I started to get niggling pains in my left shoulder. Over time I noticed that my left shoulder would feel very tired at the end of the day.”[64]

   [64] Respondent’s statement dated 16 April 2024, ARD p 6, [30].

4. While Ms Seery did not provide an opinion on causation, her reports to Dr Chan and her clinical notes assist in setting the factual scenario in terms of the development of left shoulder symptoms. It is apparent that the respondent reported bilateral shoulder symptoms to Ms Seery on 24 August 2022. He also reported the left arm symptoms in the context of increased activity to Ms Seery, who wrote to Dr Chan on 16 December 2022 advising that:

   “He has also started to develop left shoulder pain. He reports it has been getting progressively worse now that he is completing more activities at home and is finding it is waking him up at night.”[65]

   [65] ARD, p 74.

5. On 20 January 2023, Ms Seery further reported that the respondent:

   “also reports he has had left shoulder pain over the last 6 months which over the last month has become a lot worse. [The respondent] tried 2 days back at work in the community garden. He reports he couldn't complete a lot of tasks and the tasks he did complete significantly increased his pain by that afternoon.”[66]

   [66] ARD, p 78.

6. There was thus evidence before the Member from the respondent, Dr Chan and Ms Seery which was available to and accepted by the Member, and that evidence formed the basis of his conclusion that the left shoulder condition resulted from the right shoulder injury. The Member therefore did not err in law on the basis that there was no evidence to support his conclusion, or on any other basis.

7. The appellant’s alternate complaint is that the Member erred in fact in reaching his conclusion.

8. A determination as to whether the respondent suffered a condition in his left shoulder as a result of the right shoulder injury is a factual finding. It is well established that the principles to be applied in disturbing a primary decision-maker’s factual findings are those drawn from Whiteley Muir & Zwanenberg Ltd v Kerr;[67] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[68] and Northern NSW Local Health Network v Heggie.[69] Those principles are applicable to appeals from a member of the Commission. Roche DP helpfully summarised the principles in Raulston v Toll Pty Ltd[70] as follows:

   “…

   (a)     [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that [the] conclusion was wrong’.

   (b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

   (c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.’

   The decision of Allsop J (as his Honour then was) in [Branir] is also instructive in the context of the need to establish error. His Honour observed (at [28]):

   ‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

   [67] (1966) 39 ALJR 505.

   [68] [2001] FCA 1833 (Branir).

   [69] [2013] NSWCA 255 (Heggie).

   [70] [2011] NSWWCCPD 25, [19]–[21].

1. In Workers CompensationNominal Insurer v Hill,[71] Basten JA considered the application of the principles in Whiteley Muir in the context of s 352(5) of the 1998 Act. His Honour observed:

   “With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[72]

   [71] [2020] NSWCA 54 (Hill).

   [72] Hill, [20].

2. As Sackville AJA observed in Heggie, where there is no preponderance of view, it is not sufficient that the appellate tribunal prefers a view contrary to that arrived at by a member.

3. The appellant contends that there was an absence of evidence as to what the respondent actually did with his left arm and how frequently the respondent performed those tasks and, in the absence of such evidence, it was not open to the Member to make his factual findings.

4. As the respondent submits, none of the medical experts indicated that they required precise evidence of the activities performed in order to address the causation of the left arm symptoms and the respondent’s case was not dependent upon there being “loading” of the left arm. I have already pointed out the evidence from the respondent, Dr Chan and Ms Seery as to the respondent’s activities. There is in fact evidence in the form of the complaints recorded by Ms Seery in consultation with the respondent and reported by Ms Seery to Dr Chan that the respondent increased his activities by December 2022 and in January 2023 the respondent attempted to return to work as a gardener but was unable to continue because of symptoms.

5. The appellant submits that, in the absence of direct evidence about those activities, the Member must have drawn inferences in relation to those matters. The appellant asserts that there were multiple competing inferences that could have been drawn in this case.

6. The appellant points to the timeframe within which the respondent experienced symptoms, which was during the period when the respondent was awaiting and then underwent cervical surgery and says that it would be highly unlikely that during that time the respondent undertook strenuous activity. I do not consider that the suggested competing inference could be drawn that the respondent was not overusing his left arm because of the pending surgery or during the recovery period from the surgery on 10 August 2022. In fact, Ms Seery noted bilateral shoulder symptoms in her clinical note on 24 August 2022 and recorded on 16 December 2022 that left shoulder symptoms were progressively worsening “now that he is completing more activities at home.”[73]

   [73] ARD, p 74.

7. There is no medical or factual evidence to support the drawing of an inference that the respondent was not overusing his left arm because of pending or recent cervical surgery. A finding in relation to a causal connection (or lack thereof) can only be made if the evidence justifies an inference as to the connection to be drawn and the proposed inference is more probable than any other inference.[74] The assertion that the respondent would not be performing activities while awaiting or recovering from surgery is the only competing inference suggested by the appellant. I do not accept that that inference could be drawn from the evidence or that there were inferences other than the inference drawn by the Member, let alone more probable inferences, available on the evidence.

   [74] Flounders, [25] and [32].

8. The appellant refers to Keating P’s decision in Craig, in which his Honour observed that the decision-maker should make factual determinations on the basis of proven evidence and not on matters of common or judicial knowledge, relying on Strinic v Singh.[75] In Strinic, Beazley JA (as her Excellency then was) observed that (citations removed):

   “The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated, at 889:

   ‘It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice.’

   In Ohlstein, Ipp JA observed, at [155], that the risk to a young child in undertaking a guided horse ride and a child’s ability to undertake the ride:

   ‘... should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by the experts ...’.”[76]

   [75] [2009] NSWCA 15 (Strinic).

   [76] Strinic, [60]–[61].

9. The appellant’s reliance on Craig and Strinic demonstrates a misunderstanding of the rationale in Strinic. Strinic does not say that a determination cannot be made on the basis of common or specialist knowledge. In addition to her observations above, Beazley JA said:

   “a specialist tribunal will have greater leeway in applying its specialist knowledge, either because the constituting statute so provides, or because the parties are taken to understand its practices. Such tribunals are often the sole and final determiners of fact. Likewise, a trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge’s understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge’s acting on that understanding.”[77]

   [77] Strinic, [65].

10. In any event, the appellant’s reliance on Strinic is misplaced. The Member did not determine the matter on the basis of common knowledge or his judicial knowledge in a specialised tribunal. He determined the matter on the basis of the evidence which he found sufficient and accepted in the context of there being no competing evidence. It might be said that the Member applied a degree of commonsense in reaching his conclusion. In a determination of causation, there is nothing wrong with applying a commonsense approach to the evaluation of the causal connection.[78] That process does not contemplate the application of common or judicial knowledge.

    [78] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32.

11. The appellant has failed to demonstrate an error of law on the part of the Member in respect of the Member’s finding that there was an increased loading to the respondent’s left upper extremity as a result of the injury to the right upper extremity.

12. Applying the principles set out in Whiteley Muir and Branir, the appellant has also failed to establish factual error on the part of the Member in arriving at that conclusion. There were no other probabilities that outweighed that chosen by the Member, the Member did not overlook material facts and nor was there an available inference in the opposite sense that was so preponderant that it shows that the Member was wrong. As Sackville AJA observed in Heggie, where there is no preponderance of view, it is not sufficient that the appellate tribunal might prefer a contrary view to that arrived at by the Member.

13. It follows that, for all of the above reasons, Ground One of the appeal fails.

Ground Two: The Member erred in law in accepting the opinion of Dr Chan that the respondent’s left shoulder condition resulted from the right shoulder injury

1. The appellant submits that Dr Chan failed to expose his reasoning process and appears to have assumed that because the symptoms followed the overuse, the two were related. The appellant further asserts that Dr Chan failed to explain how or why the overuse caused the left shoulder condition, and thus Dr Chan’s opinion should be afforded no weight.

2. The appellant maintains that the Member erred in law by accepting the opinion of Dr Chan. As I have already discussed, there is no error of law if there is evidence which, if accepted, would support the Member’s finding. In accordance with my reasons in respect of Ground One of this appeal, there is such evidence.

3. The appellant refers to the High Court authorities of Dasreef and Honeysett. The appellant asserts that those authorities require that it is necessary that an expert explain “how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion”.[79]

   [79] Appellant’s submissions, [32].

4. This point was not the subject of submissions to the Member. In University of Wollongong v Metwally (No. 2)[80] the High Court said:

   “It is elementary that a party is bound by the conduct of his case. Except in the most

   
   

   exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[81]

   [80] [1985] HCA 28 (Metwally).

   [81] Metwally, [7].

5. Having not raised that point before the Member, it is not open to the appellant to raise it on appeal.

6. In addition, the authorities of Dasreef and Honeysett concern the admission of opinion evidence in accordance with the rules of evidence which require the expert to explain the field of specialised knowledge in which the witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based in order for that evidence to be admitted.

7. Section 43 of the 2020 Act provides that the Commission is not bound by rules of evidence. Those authorities do not assist the appellant’s case. What is required in terms of expert evidence in the Commission has been explained by McColl JA in Edmonds. Her Honour observed that where, as in the Commission, the rules of evidence do not apply, in order to find error of law based on an absence of evidence, there must be an absence of material, whether strictly admissible according to the rules of evidence or not.[82] Beazley JA in Hancock also observed:

   “Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings.”

   And:

   “In the case of a non-evidence-based jurisdiction such as [the Commission], the question of the acceptability of expert evidence will not be one of admissibility but of weight.”[83]

   [82] Edmonds, [129].

   [83] Hancock, [82]–[83].

8. There is no doubt that a general medical practitioner, particularly one who has treated the patient for a number of years, has the necessary training, study and experience to proffer an opinion on causation.[84] That evidence might carry less weight if it is contrary to other evidence from a specialist medical practitioner, such as (in this case) an orthopaedic surgeon, however there was no such credible contrary evidence. I note that the appellant does not take issue with the Member having rejected the evidence of A/Prof Miniter.

   [84] State of New South Wales (Fire and Rescue NSW) v Sinclair [2025] NSWPICPD 8, [78].

9. The appellant also relies on Paric, to say that the acceptance of expert evidence is a question of whether the hypothetical material put to the expert represents a fair climate for the opinion expressed, and Paric No 2 to say that for the expert evidence to be of any value, the facts upon which the opinion is based must be proved by admissible evidence.

10. In this case, Dr Chan took a history of the respondent having relied upon his left arm because of his right arm symptoms. I have already pointed to the evidence supportive of that fact and the absence of contrary evidence. That history was accepted by the Member. Dr Chan considered the issue of causation and, in the absence of any other explanation (such as a specific injury), concluded that the left shoulder condition resulted from overuse of that limb because of the right shoulder injury. I do not consider that Dr Chan has failed to sufficiently explain his opinion.

11. The appellant has not demonstrated an error of law on the part of the Member in accepting the opinion of Dr Chan. Ground Two of the appeal fails.

CONCLUSION

1. The appellant has failed to establish error on the part of the Member. The appeal is dismissed and the Member’s Certificate of Determination is confirmed.

DECISION

1. The Member’s Certificate of Determination dated 1 October 2024 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

11 March 2025