Toll Transport Pty Ltd t/as Toll Pty Ltd v Pockran - [2025] NSWPICPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Toll Transport Pty Ltd t/as Toll Pty Ltd v Pockran [2025] NSWPICPD 17
APPELLANT:	Toll Transport Pty Ltd t/as Toll Pty Ltd
RESPONDENT:	Bryan Pockran
INSURER:	Toll Holdings Ltd
FILE NUMBER:	A1-W924/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	6 March 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 4 April 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Mason v Demasi [2009] NSWCA 227 considered and applied – s 254 of the Workplace Injury Management and Workers Compensation Act 1998 – failure to give notice of an injury occasioned by ignorance, mistake or other reasonable cause – employer not prejudiced by the failure to give notice of injury – no error identified on appeal – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – first instance decision maker to exercise an evaluative judgment of the evidence – Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr F Doak, counsel
Colin Biggers & Paisley
Respondent:
Mr B Carney, counsel
Stacks Goudkamp
DECISION UNDER APPEAL:	Pockran v Toll Holdings Ltd t/as Toll Transport Pty Ltd [2024] NSWPIC 166
MEMBER:	Ms A Gracie
DATE OF MEMBER’S DECISION:	4 April 2024

INTRODUCTION

Mr Bryan Pockran (the respondent) was employed by Toll Transport Pty Ltd (the appellant) as a truck driver between 1997 and 2021.
The respondent alleges that on 9 June 2021, he fell from the step of his truck onto a concrete surface, causing injury to his right knee. At the time, the respondent was 72 years of age. The respondent states that apart from a slightly tender tailbone, he did not notice any immediate pain in his right knee, so he continued to work and finished his shift. He continued to work his normal shifts between 11 June 2021 to 29 June 2021.[1] The respondent states he noticed the onset of pain in his right knee during the last week of June 2021. He first sought medical treatment for his right knee on 29 June 2021[2] and it was not until 1 August 2021 that the respondent reported the injury to the appellant.[3]
[1] Incorrectly stated as 17 June 2020 in the respondent’s statement dated 18 August 2021, Application to Resolve a Dispute (ARD), p 16, [60].
[2] ARD, p 16.
[3] Statement of Jonathon Neasey dated 30 August 2021, Reply to Application to Resolve a Dispute (Reply), pp 18–19.
The respondent’s explanation for the delay in reporting the injury was that he was not aware of the injury until symptoms developed at a later stage. The delay in reporting the injury unfortunately caused ambiguity on the respondent’s part as to the correct date of injury. When initially reporting the injury to the appellant, the respondent stated he was not sure of the date of injury[4] however soon after, the date of injury was reported as 10 June 2021[5] and was later modified to 9 June 2021.
[4] Reply, p 19.
[5] Reply, p 120.
On 1 November 2022, the respondent underwent a partial right knee replacement under the care of Dr Stening which was paid for by the appellant on a without admission of liability basis.[6] Following surgery, the appellant paid for eight sessions of physiotherapy before issuing a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 8 February 2023 declining liability for the right knee and any ongoing weekly, medical and/or related benefits effective immediately.[7]
[6] ARD, p 20.
[7] ARD, p 22.
On 18 May 2023 the respondent was informed by Dr Stening that he required a total right knee replacement due to the deterioration of the cement that was used to bond the prosthesis to the bone.[8]
[8] ARD, pp 2 & 107.
A further dispute notice was issued by the appellant on 15 August 2023, maintaining its decision to decline liability of the respondent’s right knee injury.[9]
[9] ARD, p 31.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) on 5 February 2024 claiming the cost of the total right knee replacement and past treatment expenses.
The parties agreed that the issues before the Member were:
(a) whether the respondent sustained an injury to his right knee as defined by s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether the respondent’s employment was a substantial contributing factor to the alleged injury pursuant to s 9A of the 1987 Act;
(c) failure to give notice of the alleged injury in accordance with s 254 of the 1998 Act;
(d) whether the respondent made a claim for compensation in accordance with s 261(1) of the 1998 Act, and
(e) whether treatment is reasonably necessary pursuant to s 60 of the 1987 Act.
In a decision dated 4 April 2024, the Member found in favour of the respondent and ordered that the appellant reimburse the respondent past medical treatment expenses in the amount of $3,640.07 and pay for the cost of the recommended right total knee replacement surgery and associated expenses pursuant to s 60 of the 1987 Act.
It is from that decision that the appellant now appeals.

ON THE PAPERS

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.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE MEMBER’S REASONS

Injury

From the outset of the proceedings, it was evident there was an issue in relation to the date of injury. The evidence contained six contrasting dates between 9 June 2021 and 1 July 2021 proposed as the date of injury. However, at the hearing, the respondent formally pleaded the date of injury as 9 June 2021 and the injury as a frank injury.[10]
[10] Transcript of proceedings on 27 March 2024 (T), 2.14–3.5.
There was no dispute between the parties that the respondent had suffered a right knee injury, however, what was in dispute was whether that injury was suffered in the course of his employment with the appellant. After noting the respondent bears the onus of proving injury on the balance of probabilities[11] the Member noted a frank injury requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state and that suddenness is not a necessary requirement.[12]
[11] Reasons, [11].
[12] Reasons [13], citing Trusteesof the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of theestate of Anthony John Kear [2014] NSWWCCPD 47 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
The Member noted the appellant’s case was directed towards the inconsistencies in the evidence, namely the respondent’s statements and the contradistinction in the histories recorded by treating and expert medical professionals. The appellant submitted the history provided to doctors was unreliable and argued established authority requires “confluence between the asserted facts and the assumptions or opinion that the doctors have relied on”.[13]
[13] T 22.6–13.
The appellant relied on the medico-legal expert reports of Associate Professor Miniter[14] who said the symptoms in the right knee were degenerative change due to age and weight. A/Prof Miniter rejected the respondent’s description of how the injury occurred. To reinforce A/Prof Miniter’s opinion, the appellant referred the Member to various pieces of inconsistent evidence. The appellant referred the Member to the respondent’s statement where a description of the injury was given as stepping down from a truck when he slipped off, falling “backwards onto the concrete surface landing on my right and onto my lower back. I fell about half a metre to one metre.”[15] The appellant submitted that no injury to the right knee occurred and this was evident from the respondent’s own evidence as the respondent had stated he only felt pain in his tailbone and there was no pain or swelling in the knee.[16]
[14] Reply, pp 142–166.
[15] ARD, p 15; T 4.24–5.11.
[16] T 5.15–17.
The appellant also referred the Member to the respondent’s ability to continue to work until 29 June 2021 without taking any sick leave or time off work due to the right knee. That, together with the driver’s daily declaration signed by the respondent certifying that he was fit to carry out work of driving a truck during that period, further substantiated that the respondent had not suffered an injury to the right knee in the course of his employment.[17]
[17] T 6.19–8.27.
The appellant referred the Member to the clinical notes of the respondent’s GP, Dr Brdarevic dated 29 June 2021[18] being the first time the respondent sought treatment for his right knee. The appellant noted the clinical note recorded a one-week history of right knee pain and there was no history taken of the alleged injury on 9 June 2021 nor any record of falling or twisting of the knee nor any connection between the injury and work whatsoever.[19] The first time Dr Brdarevic was advised of the history of the alleged work-related injury was during a consultation on 6 August 2021 when a New South Wales WorkCover Certificate of Capacity was issued.[20]
[18] ARD, p 69.
[19] T 9.1–21.
[20] Reasons, [23].
The appellant conceded the MRI scan taken on 13 July 2021 demonstrated a medial meniscus tear with extrusion however questioned that if it had occurred on 9 June 2021, why was the respondent asymptomatic for a period of almost two weeks and able to continue to work.[21]
[21] T 10.6–23.
The appellant then referred the Member to treating orthopaedic surgeon, Dr Stening’s report dated 2 August 2021[22] and noted several inconsistencies in his reports. Dr Stening recorded that the respondent “presents a month after injuring his right knee” which the appellant argued was inconsistent with the injury occurring on 9 or 10 June 2021.[23] The appellant goes on to identify another inconsistency where the mechanism of injury was described as occurring when the respondent lost his footing while stepping out of his truck, landing heavily on his left lower limb and soon afterwards developed pain in the right knee (emphasis added). The appellant submits this was describing an injury to the left leg, yet the onset of pain occurred in the right leg, sometime afterwards, and there was no record of a twisting of the knee as recorded by other doctors in later reports. The appellant submitted Dr Stening’s opinion is flawed on two basis; the first that Dr Stening assumes the pain developed “soon afterwards” and never grapples with the pain developing up to 20 days after the alleged event, and the second being there is no plausible causal link between the mechanism of injury as recorded by Dr Stening, and the pathology.[24]
[22] ARD, p 146.
[23] T 11.32–12.10.
[24] T 13.1–28.
The appellant referred the Member to the medico-legal report of Dr Endrey-Walder dated 17 July 2023,[25] qualified by the respondent, and noted Dr Endrey-Walder recorded the following history:
“Getting out of the cab my foot slipped on the second last step and I landed heavily on my right leg, twisted my knee as my foot hit the ground I fell on my backside. At first it was only my lower back that hurt, the knee wasn’t much of a bother at the time.”[26]
[25] ARD, pp 48–55.
[26] ARD, p 49.
The appellant submitted this was an embellishment of the respondent’s original statement as the mechanism of twisting of the knee had now been introduced and there was also now the evolution of immediate symptomology in the right knee which was contradictory to the respondent’s statement dated 18 August 2021 where he categorically states he did not have any symptoms in the right knee.[27]
[27] T 16.30–18.11.
The appellant referred the Member to the history recorded by orthopaedic surgeon, Dr Bodel, qualified by the respondent’s former solicitor, in his report dated 9 November 2021 where it identified another variation to the history of the mechanism of injury which was recorded as:
“This gentleman suffered an injury to his right knee at work on 09 June 2021 at 6:45pm. He was at the time driving a 16-pallet truck and he twisted his right knee as he was stepping down out of the cab of the truck. … His right let gave way and he fell, twisting his lower back.
He was not rendered unconscious, however within half an hour the knee began to swell and became worse over the next few days.”[28]
[28] ARD, p 201.
The appellant submitted the respondent has failed to establish a causal connection between the alleged date of injury on 9 June 2021 and the subsequent problems he developed in his right knee.[29]
[29] T 18.13–20.
The appellant also referred the Member to the inconsistencies within the respondent’s own statements. In the respondent’s statement dated 7 April 2022 he states, “I kept working and the pain in my knee continued to worsen to the point where it began to swell”.[30] The appellant argued that as there was no injury to the right knee, it was implausible that the right knee would deteriorate and begin to swell.
[30] ARD, p 5.
The appellant referred the Member to inconsistencies as to the time the alleged injury happened. The appellant submitted the daily run sheet for 9 June 2021 records the respondent’s break at Eastern Creek between 6.45pm to 7.15pm,[31] which was inconsistent with the incident notification form,[32] the claim form,[33] and the history recorded by Dr Bodel.[34]
[31] ARD, p 9.
[32] Reply, p 116.
[33] Reply, p 122.
[34] ARD, p 200.
The appellant also referred to the respondent’s failure to identify the correct date of injury, citing several dates recorded in the evidence as the date of injury, which the appellant submitted was further support that the respondent did not injure his right knee on 9 June 2021.[35] The appellant complained that investigations into the respondent’s injury were misled due to the ambiguity as to the correct date of injury.
[35] Reasons, [40].
The appellant then submitted that given the inconsistent and unreliable histories provided to the respondent’s treating and expert doctors, there was no “fair climate” for those opinions to be accepted.[36]
[36] Citing Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock) and Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69.
The respondent submitted that although there were slightly different variations of the events that occurred on 9 June 2021, he had always maintained that he fell from steps of his truck while on his break at the Caltex M4 Eastern Creek sometime after 6:30pm on 9 June 2021. He has also maintained that he fell on his tailbone, and he did not immediately feel pain in his right knee until sometime after.
The Member carefully considered the evidence regarding the inconsistencies as submitted by the appellant. The Member was ultimately of the view that the respondent had always maintained the same history of the mechanics of the fall and the location of where it happened.[37] In reaching that conclusion, the Member considered the statement of the worker dated 18 August 2021,[38] the incident notification form,[39] the claim form[40] and the statement of Mr Neasey (the appellant’s operations manager),[41] all of which record a history of climbing out of his truck at a Caltex Service Station on the M4 when he slipped, landing on his tailbone and not feeling symptoms in his right knee until a later stage.[42] The Member acknowledged the three purported times the injury was said to have happened (6:30pm, 6:45pm or 7:30pm) however rejected the appellant’s submissions that the variation of time was unreliable and did not support a finding that the respondent did not sustain a right knee injury on 9 June 2021.[43]
[37] Reasons, [67].
[38] ARD, pp 10–19.
[39] Reply, p 116.
[40] Reply, p 120.
[41] Reply, p 19, [64].
[42] Reasons, [45]–[52].
[43] Reasons, [51].
In considering the medical evidence the Member noted there was no suggestion in the medical evidence that the respondent was experiencing symptoms in his right knee prior to 9 June 2021.[44]
[44] Reasons, [54].
The Member considered the MRI scan of the right knee taken on 13 July 2021 and a clinical note provided to the radiographer which stated: “History of pain and swelling. Rule out meniscal injury”. The MRI revealed a “[r]ecent-appearing high-grade radial tear posterior horn medial meniscus extending to involve the posterior-third of the meniscal root, without complete meniscal root avulsion”. A further note in the MRI scan findings recorded “[t]he tear appears recent”.[45]
[45] ARD, p 97.
The Member noted the appellant’s submissions that the respondent would not have been able to continue to work had he suffered a medial meniscus tear on 9 June 2021, however the Member rejected such submission on the basis the appellant had failed to provide any medical evidence to support the submission.[46]
[46] Reasons, [46].
The Member considered the opinion of A/Prof Miniter, relied upon by the appellant, who suggested the respondent’s weight caused the right knee symptoms, however rejected such view on the basis that there was no suggestion in the medical evidence that the respondent was overweight. The Lakeview Private Hospital admission form[47] dated 2 August 2021 recorded the respondent’s weight at 68kg and A/Prof Miniter had described the respondent as only “slightly overweight”.[48]
[47] ARD, p 153.
[48] Reasons, [57].
In addressing the appellant’s submission regarding the history recorded by Dr Stening that the respondent had slipped landing on his left lower limb,[49] the Member was of the view that this was a mistake made by Dr Stening. In support of this finding, the Member considered the following sentence in Dr Stening’s report: “Soon afterwards he developed pain in the right knee”. The Member also noted that Dr Stening had initially written “left knee” on the Lakeview Private Hospital Admission Form dated 2 August 2021 however crossed it out and wrote “right knee”. The Member was of the view that Dr Stening had made the same error in his report which he failed to rectify.[50]
[49] ARD, p 146.
[50] Reasons, [58].
The Member rejected the appellant’s submissions that the reference to right knee pain occurring “[s]oon afterwards” was inconsistent with the evidence and found, to the contrary, that the term “[s]oon afterwards” was consistent with the evidence, namely the claim form which noted symptoms from 17 June 2021, the incident notification form which noted symptoms a few weeks after 9 June 2021 and the first statement of the respondent which records pain in the last week in June 2021.[51]
[51] Reasons, [59]
In relation to the appellant’s submission that there was no record of the injury being work-related in the clinical notes of Dr Brdarevic on either 29 June 2021 or 14 July 2021,[52] the Member applied the seminal case of Mason v Demasi[53] and noted the contents of medical notes are to be approached with care. The Member noted the history taken by Dr Brdarevic was for the purpose of investigating the respondent’s right knee pain and not for any other purpose.[54] The Member noted Dr Brdarevic was not cross-examined as to what he was told by the respondent and the respondent’s statement dated 18 August 2021 is silent as to whether he informed Dr Brdarevic of the facts of the work accident on those dates. The Member highlighted the respondent’s remarks in his statement that he was not placed on a Certificate of Capacity at the time of the consultation on 29 June 2021,[55] which the Member hypothesised could suggest he may have discussed the work-related incident with the doctor, which the Member noted underpins the principles applied in Mason v Demasi.[56]
[52] ARD, p 69.
[53] [2009] NSWCA 227 (Mason vDemasi).
[54] Reasons, [63].
[55] ARD, p 16, [62].
[56] Reasons, [63].

The Member was of the view that Dr Brdarevic’s report dated 5 May 2022 which recorded “Mr Pockran presented in relation to his right knee injury on 14th July 2021”[57] was positive evidence that the respondent first advised the doctor of the work incident on that date rather than 6 August 2021 as submitted by the appellant.[58]
[57] ARD, p 98.
[58] Reasons, [64].
The Member rejected the appellant’s submission that the respondent had embellished his recount of the accident by introducing the mechanism of the twisting of the knee as reported by Dr Brdarevic and Dr Stening in order to support his claim. The Member remarked that the respondent is not a medical professional. The Member highlighted that the respondent provided the twisting of the knee history to A/Prof Minter in September 2021 and again reiterated that the respondent has been consistent in the history of the mechanics of the fall and the location of where the accident occurred.[59] The Member also rejected that the respondent had embellished the symptomology in the knee to Dr Endrey-Walder, noting that the respondent said in his statement dated 18 August 2021 that he was unable to recall if he had a problem in his right knee as there was nothing of significance.[60]
[59] Reasons, [65]–[67].
[60] Reasons, [70].
The Member rejected the submission of the appellant that the respondent had tampered with the driver’s daily run sheet on 9 June 2021 by inserting the words “Eastern Creek”. The Member noted the appellant had access to the document since 2022 and failed to have the document examined by a forensic expert or provide an expert report and as such the submission was unsupported.[61]
[61] Reasons, [72].
The Member again noted that the MRI scan demonstrated a recent leakage to a Baker’s cyst and a recent meniscal tear in the right knee. The Member was of the view that as there was no evidence to suggest the respondent’s right knee injury occurred as a result of any other incident, and taking into account the reasons noted above, the Member was satisfied that the respondent injured his right knee during the course of his employment with the appellant on 9 June 2021.[62]
[62] Reasons, [69], [73].

Substantial contributing factor

The next task before the Member was to decide whether the respondent’s employment with the appellant was a substantial contributing factor to the injury the respondent sustained to his right knee.
The Member was ultimately of the view that the respondent’s employment with the appellant was a substantial contributing factor to the injury. The Member repeated her earlier rejection of A/Prof Miniter’s opinion that the respondent’s right knee condition was age and/or weight related (see [35] above). The Member referred to A/Prof Miniter’s earlier report dated 14 September 2021 where he agreed that the “incident slipping whilst getting out of the truck could be consistent with a right knee injury” and “the workplace is probably a contributing factor to his current situation”.[63]
[63] Reply, p 146.
The Member accepted the opinion of Dr Brdarevic in his report of 5 May 2022 that the respondent’s employment was a substantial contributing factor to the injury sustained from the fall in June 2021 and the Member again highlighted that the respondent did not have a prior history of any right knee symptoms.[64]
[64] Reasons, [74]–[80].

Notice

The appellant submitted that the respondent failed to give notice of the injury on 9 June 2021 and make a claim within the relevant period as required by ss 254(1) and 261(1) of the 1998 Act, and accordingly the claim should be dismissed.
After citing the relevant legislative requirements for a worker to give notice of an injury “as soon as possible” after the injury occurred,[65] or to make a claim within six months after the injury happened,[66] the Member noted the relevant exceptions.
[65] Section 254 of the 1998 Act.
[66] Section 261 of the 1998 Act.
In relation to the failure to give notice of the injury, the respondent relied on s 254(2) and (3) being that the appellant is not prejudiced by the failure to give the notice as soon as possible after the injury happened and the failure was occasioned by ignorance, mistake or other reasonable cause. The Member noted the onus was on the respondent to establish special circumstances.[67]
[67] Reasons, [87]–[90].
The appellant argued the 54 days it took for the respondent to give notification of the injury was not “as soon as possible”. The Member considered the lay evidence and noted the inconsistencies in the purported date of notification. The Member noted the respondent in his statement dated 18 August 2021 said he notified the appellant of the injury on 4 August 2021 however the incident notification form completed by Mr Neasey recorded the date of notification by the respondent to be 1 August 2021.[68] The Member noted the respondent completed a patient information sheet for Dr Stening on 1 August 2021 which provided details of a workers compensation claim number. The Member commented it was unlikely that the respondent would be able to provide a workers compensation claim number had the injury not been reported, and took the view that the notice of injury was given on or before 1 August 2021.[69]
[68] Reply, p 116.
[69] Reasons, [94].
The Member ultimately accepted that a special circumstance exists that excused the respondent from making the claim “as soon as possible”. The Member accepted the respondent’s evidence that he did not report the injury at the time of the incident as he did not believe the right knee injury would develop the way in which it did, and he did not think it was serious. The Member noted the evidence was consistent in this regard.[70] The Member was of the view that the respondent provided notice of the injury “as soon as possible after the date of the injury after he commenced to experience symptoms in his right knee and it was necessary for him to take time off work”.[71] The Member remarked it was not until the respondent underwent an MRI scan and discussed the findings with Dr Brdarevic that he became aware of the severity of the injury.[72]
[70] Reasons, [99].
[71] Reasons, [102]
[72] Reasons, [102].
The Member was of the view that the appellant was not prejudiced by the failure to give notice of the injury. The Member’s reasons included that the appellant had the ability to check records and data regarding an employee’s movements during shifts which was evident from Mr Neasey’s statement, who said he undertook additional investigations after discovering the GPS data for 10 June 2021 did not support the respondent’s report that he stopped for a break at the Caltex service station M4 Eastern Creek at 6:30pm that day.[73] The Member noted the additional investigations included checking records for six weeks prior to the date the injury was reported, being a date that post-dated 9 or 10 June 2021.[74] The Member also noted that the appellant was aware from the beginning that the respondent was unsure as to the date of the accident, and there was no evidence submitted to the Member that the appellant was unable to obtain the GPS records for 9 June 2021 once the respondent had provided the correct date of injury, noting the respondent himself was able to produce the daily run sheet for 9 June 2021.[75]
[73] Reasons, [103].
[74] Reasons, [104].
[75] Reasons, [106].
The Member was satisfied the failure of the respondent to give notice of injury was occasioned by mistake and ignorance. The Member determined that the respondent was a truck driver and would not have been expected to know or understand the implication of reporting the accident “as soon as possible”. The Member said that the respondent reported the injury soon after his right knee became symptomatic, and it was necessary for him to take time off work. The Member considered the Health and Safety Policy[76] and the Workplace Rehabilitation Policy[77] which was relied upon by the appellant and noted the documents did not set out the legislative requirements of ss 254 and 261 of the 1998 Act. The Member noted the policy referred to by Mr Neasey and Mr Southern that the injury must be reported immediately was not in evidence before the Member.[78]
[76] Reply, p 94.
[77] Reply, p 95.
[78] Reasons, [108].
In consideration of the appellant’s submissions that the respondent did not make a claim for compensation within the six-month period, the Member noted the accident occurred on 9 June 2021 and the respondent notified the appellant of the injury in August 2021. It was not until the respondent’s former solicitors sent a copy of the report of Dr Bodel dated 9 November 2021 to the appellant seeking a review of its decision to decline liability that the appellant was notified the injury occurred on 9 June 2021, rather than 10 June 2021. The Member noted this was 41 days after the expiration of the six-month limitation period.
The Member accepted the respondent’s explanation as noted in his statement dated 7 April 2022[79] that he “mixed up” the date of injury and discovered the true date after reviewing his records. The respondent attached a run sheet to his statement which confirmed he had a break at Eastern Creek between 6.45pm and 7.15pm on 9 June 2021. The Member also noted the respondent had stated in his initial statement dated 18 August 2021 that he would have to check his paperwork if questions were raised later.[80] The Member noted the respondent made a claim for compensation in early August 2021, being two months after the date of accident, however due to a mistake, the respondent reported the incorrect date of injury.[81]
[79] ARD, p 5.
[80] ARD, p 16.
[81] Reasons, [113].
At [114] of the reasons the Member said:
“In the circumstances I am satisfied that the [respondent] has established a reasonable cause for his delay in making his claim for compensation within six months noting the correct date of injury, pursuant to s 261(4) of the 1998 Act and that his failure to make a claim for compensation based on the correct date of injury within the prescribed six month period was occasioned by mistake.”

Medical expenses

The final issue for determination before the Member was in relation to past and future medical treatment expenses.
The Member ultimately found in favour of the respondent for past and future medical expenses. The past medical expenses included physiotherapy, travel expenses and medication costs. The Member accepted the opinions of Dr Endrey-Walder who strongly recommended support for ongoing physiotherapy and Dr Stening who directed the ongoing physiotherapy post-surgery.[82] The Member was of the opinion that the physiotherapy, travel expenses and medication were expenses ancillary to the first surgical procedure which the appellant agreed to pay for on a voluntary basis[83] and were reasonably necessary.[84]
[82] Reasons, [121].
[83] Reasons, [123].
[84] Reasons, [124].
The Member noted there was a consensus in the medical evidence that the proposed right total knee replacement was reasonably necessary and that the partial knee replacement performed on 1 November 2022 had failed. The appellant had submitted that A/Prof Miniter believed the respondent should be investigated for infection prior to the recommended surgery, however the Member noted that Dr Stening in his report dated 19 June 2023 confirmed the respondent had undergone blood tests and no infection was found.[85]
[85] Reasons, [126].
The Member concluded that the right total knee replacement is reasonably necessary and results from the injury on 9 June 2021.[86]
[86] Reasons, [127].
The Certificate of Determination issued on 4 April 2024 records:
“The Commission determines:
1. That the [respondent] sustained injury to his right knee in the course of his employment with the [appellant] on 9 June 2021.
2. That the [respondent’s] employment was a substantial contributing factor to the injury sustained on 9 June 2021.
3. That the [respondent] has established that special circumstances exist pursuant to s 254(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) excusing the [respondent] from the obligation to give notice of injury as soon as possible after the injury.
4. That the [respondent] has established that reasonable cause exists as to why he failed to make a claim within the period required under s 261(1) of the 1998 Act.
The Commission orders:
5. Award in favour of the [respondent] against the [appellant] pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of past medical treatment expenses in the sum of $3,640.07.
6, Award in favour of the [respondent] against the [appellant] pursuant to s 60 of the 1987 Act in respect of future medical expenses in respect of the right total knee replacement surgery and associated expenses recommended by Dr Stening in his report dated 26 May 2023 as a result of injury sustained by the [respondent] on 9 June 2021 during the course of his employment with the [appellant].”

GROUNDS OF APPEAL

The appellant relies on the following seven grounds of appeal;
(a)    Ground One – The Member erred by applying the wrong legal test and standard. The Member’s approach to the evidence effectively reversed the onus of proof by making findings based on whether the [appellant] had established that the worker was not injured on 9 June 2021. That approach is contrary to the requirement that the Member must be satisfied on the balance of probabilities that the worker sustained injury as alleged.
(b)    Ground Two – The Member erred by failing to properly address the inconsistencies in the worker’s evidence on the issue of injury and failed to make any correct findings about the credibility and reliability of the worker’s evidence on the issue of injury.
(c)    Ground Three – The Member erred in finding that the worker receiving the results of the MRI scan in late June 2021 was relevant to the absence of complaint of work injury.
(d)    Ground Four – The Member reconstructed the evidence of Dr Stening in a manner that supported her finding that the worker sustained an injury to his right knee on 9 June 2021. In doing so the Member made findings that were not open on the evidence and took into account irrelevant matters.
(e)    Ground Five – The Member erred by applying the wrong legal principle by relying on the case authority of Mason v Demasi to overcome the absence of any recorded compliant made by the worker on 29 July 2021 of a work injury on 9 June 2021.
(f)    Ground Six – The Member erred in finding that the history recorded in the report of Dr Brdarevic supported a finding that the worker sustained the alleged injury to the right knee on 9 June 2021.
(g)    Ground Seven – The Member erred in preferring the worker’s evidence of the medical case that was based on a flawed history of a work injury.

LEGISLATION

Section 4(a) of the 1987 Act defines injury as follows:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
…”
Section 254 (3) of the 1998 Act provides:
“(3) Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
Section 261(1) of the 1998 Act provides that:
“Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.”
Procedural Direction WC3 – Presidential appeals and questions of law sets out the practice and procedure for an appeal against the decision of a non-presidential member. In respect of the grounds of appeal, it specifies:
“23.   An appeal is limited to the determination of whether the member’s decision is affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing (s 352(5) of the 1998 Act).
24.    The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the member should or should not have made, and
(c) any material facts it is said the member should or should not have found.
25.    It is not acceptable to merely allege that the member erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”

DISCUSSION

Before turning to the appeal grounds themselves, it is timely to say a few things about the principles applicable to appeals under s 352 of the 1998 Act, as well the necessity to identify the asserted error with some precision.
Section 352(5) of the 1998 Act limits an appeal to the correction of error, whether of fact, law or discretion. Specifically the provision states: “The appeal is not a review or new hearing”. The approach to this section has been set out at length in Raulston v Toll Pty Ltd.[87] This appeal right is limited and has the effect of giving primacy to the position of the first instance finder of fact.[88] Whilst the passage that I have referred to from Fisher is in reference to appeals to the Court of Appeal under s 353(1) of the 1998 Act, being limited to a “point of law”, the principle holds good, albeit with less resonance, in s 352(5) appeals. The appellant must prove that the Member was wrong in the case of a s 352(5) appeal, otherwise the Member’s decision will stand.
[87] [2011] NSWWCCPD 25 (Raulston), [17]–[31].
[88] See Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (Fisher), [37], per Kirk JA.
In terms of a Member’s approach to exercising an evaluative judgement of the evidence, in Australian Air Express Pty Ltd v Langford,[89] McColl JA (Ipp and Tobias JJA agreeing) made the following observation in relation to the exercise of such a judgment by a first instance decision maker:
“The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
[89] [2005] NSWCA 96 (Langford), [15].
This passage from Langford is entirely consistent with the terms of s 352(5) of the 1998 Act as explained in Raulston.
In order to prove error, it is the duty of the appellant “to identify with precision the alleged error”.[90] These remarks in Quirk reflect the Commission’s requirements for appeals.[91] In Kowalski v Repatriation Commission,[92] the Full Federal Court said this about appeals:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be.”
[90] See Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 (Quirk), [441]–[442].
[91] See Procedural Direction WC3, [23]–[25].
[92] [2011] FCAFC 43 (Kowalski), [21].

I would remark that in the appellant’s submissions dated 2 May 2024, there is set out, before the appeal grounds commence, a section entitled “Respondent’s case narrative”,[93] which is effectively a summary of the argument pursued before the Member. I will approach this as background material aiding in the understanding of the appeal grounds, which can only succeed if error is established.
[93] Appellant’s submissions 2 May 2024, [8]–[16].

AS TO GROUND ONE

The appellant complains that the Member reversed the onus of proof in that she focused on the appellant’s evidence, making a finding that that she was not satisfied that the appellant had established that the respondent was not injured on 9 June 2021. This, it is asserted, is an error.[94]
[94] Appellant’s submissions 2 May 2024, [19].
The appellant continues that the Member “did not properly consider the inconsistencies in the Worker’s evidence and did not provide any or any proper reasons why she accepted the Worker’s evidence in the absence of any proper and persuasive explanation for those inconsistencies.”[95]
[95] Appellant’s submissions 2 May 2024, [20].
The appellant then recounts a number of matters arising from the evidence[96] before submitting:
“The Member’s reasoning on the issue of injury focussed on why the Appellant’s submissions did not establish that the Worker was not injured on 9 June 2021, rather than properly engaging with the task of assessing the evidence and determining whether the Worker had established on the balance of probabilities that he had suffered injury to the right knee as alleged.”[97]
[96] Appellant’s submissions 2 May 2024, [21]–[25].
[97] Appellant’s submissions 2 May 2024, [26].
In reply the respondent points to reasons [11] noting that the Member correctly stated that the worker bore the onus of proof. The respondent counters the appellant’s assertions by stating that all the Member did was to consider and weigh the evidence relied upon by the parties. This the respondent says was the Member’s duty and does not amount to a reversal of the onus of proof.[98]
[98] Respondent’s submissions 31 May 2024, [5]–[9].
In its reply submission, the appellant says that the reference to reasons [11] is insufficient, rather if the decision is read as a whole, the errors as argued in chief are demonstrated. The appellant says that the Member’s review of the evidence, as argued at paragraph [9] of the respondent’s submission, is based on an incorrect formulation of the question by the Member.

Consideration

In this ground, the appellant makes a broad allegation that the Member reversed the onus of proof, which properly resided with the respondent worker to prove injury. I use the descriptor ‘broad’ because the appellant does not identify with any specificity where the asserted error was made. The submission itself invites a reading of the Member’s decision, effectively as a whole, on the issue of injury to make good this point.[99] As described in the extract from Kowalski (above), this is an unsatisfactory approach as it invites me, on this appeal, to speculate about where the error appears. The Member’s reasoning on the question of injury commences at reasons [9] and concludes at reasons [73], sixty-four paragraphs in total. In its reply submission, the appellant points to a finding at reasons [64] as illustrative of the error in the Member’s approach, which I take to mean that there are others but they have not been identified with precision.
[99] Appellant’s submissions 2 May 2024, [19].
Notwithstanding this approach, the appellant’s complaint is capable of being understood in the broad way that it is advanced.
I commence by noting what is effectively the Member giving herself a direction that the respondent worker bears the onus of proving injury on the balance of probabilities.[100] This is an uncontroversial and correct statement of principle.
[100] Reasons, [11].
At reasons [12]–[13], the Member sets out the principles, arising from decided cases, in terms of the establishment of causation and injury. The Member makes a statement which is self-evidently true that the respondent does suffer from a right knee condition.[101]
[101] Reasons, [14].
From reasons [15] onwards, the Member recounts the appellant’s lengthy arguments about why injury has not been established. This is, I must say, a comprehensive description of the appellant’s case denying injury.[102]
[102] Reasons, [20]–[42].
The appellant questioned, before the Member, how the respondent could have kept working after sustaining the alleged injury on 9 June 2021 and failed to seek medical advice. The Member answered this submission at reasons [46]. This is not a reversal of the onus of proof, it is directly dealing with a submission that was advanced by the appellant.[103]
[103] The Member had recorded this submission at reasons [27].
From a review of the decision, it is apparent that the Member’s finding of injury in favour of the respondent was based on the following:
(a)    “The [respondent] had undergone a medical examination before commencing with the [appellant]. There is no suggestion in the medical evidence before me that prior to 9 June 2021, the [respondent] was experiencing symptoms in his right knee.”[104]
(b)    “The [respondent] submits that the MRI scan of the right knee taken on 13 July 2021 is significant evidence to support injury (see page 97 of the ARD). The clinical note provided to the radiographer states ‘History of pain and swelling. Rule out meniscal injury’. The radiographer’s comments on the MRI scan are equally relevant. The comments read ‘Recent-appearing high-grade radial tear posterior horn medial meniscus extending to involve the posterior third of the meniscal root, without complete meniscal root avulsion’ and ‘Baker's cyst and features of recent cyst leakage’. Further of note in the MRI scan findings, the radiographer has recorded the following ‘The tear appears recent’.”[105]
The MRI was clearly an important and objective piece of evidence revealing that the respondent’s right knee had suffered a recent injury. The Member was right to consider it closely and contrasted this with Associate Professor Miniter’s opinion that the knee problems were age related. This opinion was not given much weight by the Member.[106]
(c)    The Member’s approach to the medical records and her application of the principles from Mason v Demasi.
(d)    Notwithstanding the inconsistencies pointed out by the appellant, the Member said the following:
“The [respondent] has consistently provided the same history of the mechanics of the fall and the location of where the accident happened to the medical providers he has seen and also in the statements he has provided.
At the time of the fall the [respondent] did not experience pain in his right knee however, according to his claim form, the pain developed in his right knee on or after 17 June 2021.
The MRI scan demonstrates a recent leakage to a Baker's cyst, which is consistent with the [respondent’s] presentation of pain at the practice of Dr Brdarevic on 29 June 2021. The MRI scan also documents a recent meniscal tear in the right knee. There is nothing before me to suggest the [respondent’s] injury to his right knee occurred as a result of an incident other than the work accident on 9 June 2021.”[107]
[104] Reasons, [54].
[105] Reasons, [55].
[106] Reasons, [56].
[107] Reasons, [67]–[69].
Reading the passages dealing with injury as a whole,[108] it is apparent that the Member diligently dealt with the numerous arguments raised by the appellant questioning injury. It is the duty of a Member to respond to clearly articulated arguments, which was done. In so doing, the Member is most certainly not reversing the onus of proof.
[108] Reasons, [9]–[73].
The assertion made by the appellant has not been made good. I have read what is said by the appellant to be illustrative of the error complained of at reasons [64]. This is but one paragraph in a number in the Member’s reasoning dealing with the appellant’s multiple submissions about the medical records and inconsistencies arising from them. This is exactly the type of evaluative judgement referenced in Langford (above). The Member was not in error by approaching the task in that way. There is no reversing of the onus of proof in this paragraph or in the succession of paragraphs dealing with this issue.
In this ground the appellant also asserted what are really two collateral errors. These appear in the appellant’s submissions at paragraph [20] which reads as follows:
“The Member did not properly consider the inconsistencies in the Worker’s evidence and did not provide any or any proper reasons why she accepted the Worker’s evidence in the absence of any proper and persuasive explanation for those inconsistencies.”
Intervention on appeal requires the identification and correction of error.[109] The Member was taken to what the appellant said were the inconsistencies in the evidence, considered them and dealt with them. It is insufficient to establish error to make a broad assertion that an issue was not “properly” considered. In terms of a failure to provide reasons, this obligation arises under s 294(2) of the 1998 Act and under r 78 of the Personal Injury Commission Rules 2021 (Rules).[110] The appellant has not addressed these requirements.
[109] Section 352(5) of the 1998 Act; Raulston.
[110] For a discussion about a Commission Member’s obligation to give reasons, see Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]–[147] per Kirk JA.
The failure of the appellant to identify error with any precision illustrates that this ground is, in truth, an impermissible attempt to invite a review of factual findings dressed up as a complaint about error.
Error in the Member’s approach has not been identified, let alone established.
Ground One is dismissed.

AS TO GROUND TWO

The appellant asserts that the Member “failed to properly consider and address the issues of the credibility and reliability of [the] Worker’s evidence on the issue of injury.”[111]
[111] Appellant’s submissions 2 May 2024, [28].
The appellant says that the respondent’s evidence did not address why there was no report of injury until early August 2021 and criticises the Member’s reliance on an incomplete claim form.[112] In particular the appellant says that the inconsistency between the claim form and the respondent’s evidence was not addressed[113] and that undue weight was given to the claim form.[114]
[112] Claim form with a date 9 August 2021 as being the date the form was given to the employer, at Reply, pp 120–124.
[113] Appellant’s submissions 2 May 2024, [31].
[114] Appellant’s submissions 2 May 2024, [32].
In reply the respondent says there is no inconsistency between the claim form and his statements.[115]
[115] Respondent’s submissions 31 May 2024, [10]–[12].
The appellant says nothing in its reply submission in relation to this ground.

Consideration

As was the case in Ground One, this ground does not point to any passage(s) of the Member’s reasons where the error is said to have occurred. I do not repeat my remarks from the previous ground on the unsatisfactory nature of this approach.
Plainly the Member was aware of the contest about the different versions given by the respondent of when the injury occurred or when pain and disability commenced. The Member was taken to these matters extensively by the appellant and addressed them at length in the decision.[116] Indeed at reasons [71], the Member specifically addresses a submission made by the appellant about inconsistency between two statements of the respondent, the Member resolved that the documents were in fact consistent.
[116] Reasons, [9]–[73].
The appellant complains that the respondent’s evidence did not address the absence of a report of injury until August 2021.[117] This is in relation to an issue raised by the appellant that, contrary to s 254 of the 1998 Act, notice of injury was not given by the respondent “as soon as possible after the injury happened”. I do not accept this assertion. The respondent dealt with the question of delay in his statement of 7 April 2022 at ARD pp 5–6 and in his statement to the appellant’s investigator commencing at ARD p 10.[118] The respondent also explained delay in the claim form. The claim form, as is typical with such documents, is in a question and answer format. At Reply p 122, the question is asked: “If you did not report the injury/condition, or there was a delay, please explain why”. The respondent answered (in handwriting): “There was a delay in the injury becoming painful and my eligibility to claim”. I would remark that the box on the claim form, in which the answer is to be written, was completely filled by the respondent’s answer. This document in terms of its format did not lend itself to a comprehensive, detailed answer. But the purport and meaning of the answer is apparent to the reader, namely a delay in the onset of pain.
[117] Appellant’s submissions 2 May 2024, [29].
[118] See in particular ARD, pp 15–17, [56]–[69].
This evidence, contrary to what is asserted by the appellant, patently addresses why there was a delay in reporting the injury.
The appellant points to reasons [50] where the Member dealt with the claim form.[119] The appellant asserts that the explanation for the delay as expressed in the claim form is inconsistent with an earlier assertion of the knee symptoms starting on 17 June.
[119] Appellant’s submissions 2 May 2024, [30].
I accept that the whole issue of inconsistency of the various versions given by the respondent was an issue before the Member. However the particular inconsistency complained of at appellant’s submissions paragraph [30] was not put the Member. The issue about the claim form, as argued before the Member by the appellant, related to non-compliance with s 254 of the 1998 Act and not the argument now being pursued. In any event, the Member dealt with the general question of inconsistency of the respondent’s statement and the claim form at reasons [51] and onwards from that point. A fair reading of what the Member made of the claim form can be gleaned from those passages - the claim form was not determinative per se, rather it was considered and construed as being consistent with other aspects of the evidence. With respect to the submission that the claim form was given undue weight by the Member there are two answers to that proposition. Firstly, a reading of the decision does not lead to that conclusion. Secondly the whole issue about whether the weight accorded to particular evidence is wrong was addressed in Raulston at [19(c)]. The appellant has not addressed these remarks from Raulston.
As was the case in Ground One, this ground is an impermissible attempt to review a factual finding on the issue of injury under the guise of asserting error.
There was no error in the approach taken by the Member.
Ground Two is dismissed.

AS TO GROUND THREE

The appellant submits the following in relation to this ground:
“At paragraph 50 of the Decision the Member made a finding that ‘Until the [respondent] received the results of the MRI scan and discuss[ed] the results with Dr Brdarevic, the [respondent] had no knowledge of the seriousness of the injury to his right knee’. That seems to have been an important matter that the Member relied on in determining that the Worker injured his right knee at work on 9 June 2021. However, the Member did not refer to any evidence that supported that finding about the Worker’s lack of knowledge of the ‘seriousness’ of the injury.”[120]
[120] Appellant’s submissions 2 May 2024, [33].
The appellant says while the lack of awareness of injury may provide “some explanation for a delay in reporting an injury”,[121] this does not address absence of complaint to the GP or the appellant. The appellant says that the inconsistency between the claim form and the respondent’s evidence was not reconciled by the Member.
[121] Appellant’s submissions 2 May 2024, [34].
The respondent says that if Ground Two is not made out, Ground Three must also fail.
The appellant makes no submission in reply.

Consideration

Contrary to the appellant’s submission at paragraph [33] (set out above), the Member at reasons [50] referenced the claim form answer regarding the delay in making a report of injury. As a consequence I do not accept that criticism of the Member’s reasoning.
This ground is a derivation of Ground Two, which I have dismissed. It is, like Ground Two, an attempt to cavil with a factual finding without identifying error. The appellant complains that the claim form answer about delay was “uncritically” accepted[122] without the Member reconciling the various versions. I do not accept this criticism of the Member’s reasoning. The Member at length reviewed the evidence, including the claim form. I do not read the Member’s view of the claim form being determinative per se. Rather it was a part of the overall evidence considered by the Member. The claim form is really the end point of the respondent’s realisation of his right knee injury which commenced with the increase in symptoms which led to the MRI scan. It was the Member’s task to evaluate the evidence of the claim form as a part of that consideration. I would also remark that no submission was put to the Member by the appellant that the claim form could only be considered in the manner now asserted.
[122] Appellant’s submissions 2 May 2024, [35].
Error has not been established. Ground Three is dismissed.

AS TO GROUND FOUR

The appellant takes issue with how the Member dealt with Dr Stening’s records. The appellant submits:
“38. At paragraph 58 of the Decision the Member found that the reference in Dr Stening’s report to the Worker falling on his left leg at the time of the Incident was ‘a mistake made by Dr Stening and this history should have recorded that the [respondent] landed heavily on the right lower limb.’
39.    In making that finding the Member has, with respect, simply reconstructed the doctor’s evidence. In support of the finding the Member referred to following (and incorrect) history that ‘soon afterwards’ the Worker developed right knee pain. The Member reasoned that this reference would be consistent with the Worker landing on his right lower limb rather than the left. However, the Member failed to consider the of the [sic] sentence about the fall onto the left leg which states ‘Interestingly, at the time he lost his footing on a step while climbing down out of the truck and landed heavily on his left lower limb. Soon afterwards he developed pain in the right knee.’
40.    The use of the word ‘interestingly’ by Dr Stening creates an at least equal if not more powerful inference that the history recorded by the doctor of trauma to the left leg was correct. The Appellant submits that the reasoning of the Member that the reference to complaint of right knee symptoms ‘soon afterwards’ does not provide any support for the finding made by the Member that the history recorded by Dr Stening was mistaken.
41.    Importantly, there was no evidence from the [respondent] addressing this issue. It would’ve been open to the [respondent] to give evidence that he told Dr stating [sic] that he had fallen on his right leg, rather than his left leg, and that the history recorded by Dr [Stening] was incorrect. However, no, such evidence was led by the [respondent]. In those circumstances, it was simply not open to the member to reconstruct Dr [sic] there was no evidence from the [respondent] addressing this issue. It would’ve been open to the [respondent] to give evidence that he told Dr stating [sic] that he had fallen on his right leg, rather than his left leg, and that the history recorded by Dr Stening was incorrect. However, no, such evidence was led by the [respondent]. In those circumstances, it was simply not open to the member to reconstruct Dr Stening’s report.
42.    The Member’s re-writing of the history recorded by Dr Stening was a crucial aspect of her Decision in favour of the Worker on the injury issue. By doing so and then proceeding to rely on Dr Stening’s report the Member fell into error.”

The respondent says that the mistake in doctor’s records is self-evident and does not require a response. The respondent says the Member reached her opinion of the mistake based on a consideration of the evidence before her.
In reply, the appellant says the respondent has failed to engage with the challenge under this ground.

Consideration

The offending paragraph of the Member’s decision is reasons [58] which I set out in full:
“When considering the admission form completed by Dr Stening on 2 August 2021 it is convenient to address the submissions put forward by the [appellant] in relation to the first report prepared on the same day as the admission form by Dr Stening dated
2 August 2021 (see page 146 of the ARD). The [appellant] pointed out that Dr Stening had recorded that the [respondent] ‘landed heavily on the left lower limb’ when he lost his footing as he was exiting the truck. I am of the opinion that this was a mistake made by Dr Stening and the history should have recorded that the [respondent] landed heavily on the right lower limb. I note in the sentence immediately following the reference to the left lower limb, Dr Stening notes that ‘Soon afterwards he developed pain in his right knee’. This would be consistent with the [respondent] landing on his right lower limb, not his left lower limb. Further in the Lakeview Private Hospital Admission Form dated 2 August 2021, Dr Stening has initially written ‘left knee’ on the consent form and has crossed out the reference to ‘left knee’ and written ‘right knee’. Unfortunately, the reference to the left lower limb in the report of 2 August 2021 was not corrected by Dr Stening. For these reasons I find that the reference to the left lower limb in the report from Dr Stening dated 2 August 2021 was a mistake.”
I do not accept the assertion made by the appellant that the Member has “reconstructed the doctor’s evidence” or that the Member has engaged in the “re-writing of the history recorded by Dr Stening”. The Member has closely reviewed the admission form completed by Dr Stening, noting the reference to landing on the left knee and soon afterwards developing pain in the right knee. The Member also noted the reference to left knee on the consent form which the doctor crossed out and replaced with reference to the right knee. This is not a reconstruction or a re-writing of the notes by the Member as the appellant pejoratively suggests. Given the alteration to the consent form, it is an entirely reasonable conclusion for the Member to draw that the doctor made a mistake in the earlier form. The appellant has not engaged with the detail of the Member’s reasoning on this issue and as a result has not identified the error necessary to overturn this factual finding.
The appellant now asserts that this finding of a mistake on behalf of the doctor in mistakenly recording “left” rather than “right “ knee was a “crucial” aspect of the decision in favour of the respondent. I do not accept that submission. The submission fails to grapple with the Member’s overall process of reasoning in reasons [58] and elsewhere in the decision going to the question of injury.
I do not consider this matter to be “crucial” in the result as is asserted by the appellant on appeal. The Member undertook an examination of all the evidence, and evaluated it at length in her reasons for decision. The issue of these notes is but one aspect of the overall evidentiary landscape leading to the ultimate decision on injury.
Ground Four is not made out and as a result, it is dismissed.

AS TO GROUND FIVE

The appellant makes the following assertion:
“44. First, the Member referred to the judgement of Basten JA in Mason v Demasi [2009] NSWCA 227 as authority for the proposition that ‘inconsistencies between a party’s evidence and medical histories should be treated with caution.’ The Appellant submits the principle referred to in that case is not applicable to the present case. In Mason v Demasi the court was addressing the situation where the recorded history in the clinical records was sought to be used to impugn the party’s credit. That is a quite different situation to the present case where the Appellant relied on the absence of any recorded complaint by the Worker to the doctor to support its submission that the Worker had failed to establish he suffered an injury to his right knee as alleged.
45.    The error in the Member’s reliance on the case is compounded by her failure to provide any reasons identifying the used to which she sought to apply it.
46.    The Member then made a further error by taking into account the fact that Dr Brdarevic was not cross-examined. With respect there was no obligation on the Appellant to cross-examine the doctor about the absence in the doctor’s clinical records of a history of injury to the right knee having been provided by the Worker before August 2021. The reliance by the Member on that comment in forming a view about injury constitutes an error.
47.    The Member then proceeded in the remainder of paragraph 63 of the Decision to make further comment on and findings about the apparent reasons why the Worker had not made any complaint of the alleged work injury to his right knee to Dr Brdarevic until August 2021. Much of that discussion consists of speculation without properly identifying how the evidence referred to supported a finding of injury and constitutes error.”
In reply the respondent says that Mason v Demasi was correctly applied in this case. Further the respondent contends that the Member is able to make the finding about the failure to cross-examine Dr Brdarevic and do so relying on Mason v Demasi and Hancock.
The appellant makes no reply submission.

Consideration

Given the manner in which the appellant has framed its argument about Mason v Demasi, I will set out in full the relevant extract from Basten JA’s decision in that matter:
“2. First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.
3. The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.”
His Honour made reference his decision in Container Terminals Australia Ltd v Huseyin[123] where the following was said at [8]:
“I agree with Macfarlan JA that the appellant undertook a difficult exercise in seeking to challenge findings of credit, both with respect to the plaintiff and with respect to his wife. The manner in which the established principles are to be applied was considered recently in Skinner v Frappell [2008] NSWCA 296 at [4]–[16]. In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:
(a)     the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);
(b)     medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;
(c)     the histories did not make reference to the questions which elucidated the replies;
(d)     the material recorded was a summary of answers rather than a verbatim recording, and
(e)     there may be a range of factors, including fluency in English, the practitioners knowledge of the background circumstances of the accident and the patient’s understanding of the purpose of the question, which will affect the content of the history.”
[123] [2008] NSWCA 320.
The Member dealt with the principles arising from Mason v Demasi at reasons [63], noting that histories recorded in such clinical records need to be treated with caution for the reasons expressed by His Honour. This was a necessary process for the Member to undertake as the appellant had sought to make much about what it said were inconsistencies between the histories recorded by various doctors and the respondent’s statements.
The appellant argues that the principle discussed in Mason v Demasi is not applicable to the facts of this case.[124] The appellant says that this is the case because the circumstances in Mason v Demasi are different to those found in this matter.
[124] Appellant’s submissions 2 May 2024, [44] (set out above).
I do not accept this submission.
If one reads the extracts from Basten JA’s decisions on this issue (above), the following is apparent. Firstly, the principles are of general application. The matters his Honour took into account at paragraph [2] in Mason v Demasi are not fact sensitive to that case. His Honour is stating a principle that is of broad application about how one should approach clinical records in a litigious setting. Secondly, whilst the issue in Mason v Demasi was credit, that is not too much different from the use that the appellant seeks to make of the medical records in this case. The appellant is endeavouring to deploy inconsistencies between the respondent’s statements and the clinical records to argue that the respondent’s evidence is unreliable and ought be accorded little weight.
The appellant then criticises the Member for failing to identify how the principle was applied. With respect, this is not a fair reading of the Member’s decision. Reasons need to be read as a whole.[125]
[125] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
At reasons [63] the Member is in effect giving herself a Mason v Demasi direction to approach the clinical records with caution. This is entirely uncontroversial. In the paragraphs following reasons [63], the Member is examining the various clinical records and testing the submissions put by the appellant in relation to those records.
The appellant complains that the Member took into account the fact that Dr Brdarevic was not cross-examined and this was an error.[126] The offending statement appears at reasons [63] and it reads: “In the present case, Dr Brdarevic was not cross-examined about what he was told by the [respondent] on 29 June 2021. The clinical record from Dr Brdarevic is likely to be a summary of the consultation rather than a verbatim recording.” This latter statement reflects what appears at paragraph [2(d)] of Mason v Demasi.
[126] See appellant’s submissions 2 May 2024, [46] (above).
The Member at reasons [63] then proceeds to deal with the doctor’s notes before ending with this statement: “It is for this reason that the comments made by Basten JA in relation to clinical notes are particularly relevant in the assessment of the clinical notes in this case.”
There is no contest that Dr Brdarevic was not cross-examined in this case. I do not read this self-evident fact as being determinative on this point, rather it is a part of the Member’s process of reasoning and applying Mason v Demasi to the facts that were presented. Far from being speculative, as asserted by the appellant, the Member is approaching the records with caution mindful of the contents of paragraph [2] of Mason v Demasi.
Error has not been established.
Ground Five is dismissed.

AS TO GROUND SIX

The appellant argues this ground in the following manner:
“48. At paragraph 64 of the decision, the Member held that the comment in Dr Brdarevic’s report dated 5 May 2022 that the Worker ‘presented in relation to his right knee injury’ supported a finding of injury despite the absence of any recorded complaint of such an injury to the doctor having been recorded in his clinical records. The Member stated that that she ‘was not persuaded that the [respondent] first mentioned his work related injury to Dr Brdarevic on 6 August 2021.’
49.    The Appellant submits [the] Member’s reading of the contents of the doctor’s report is erroneous. The doctor in fact recorded the attendances on 29 June and 14 July only referred to right knee symptoms. The first reference to the right knee symptoms being related to a fall from a truck at work was not until the consultation on 6 August 2021. The history recorded in the report is consistent with the absence of any complaint of a work injury to the right knee recorded in the doctor’s clinical notes prior to that date.
50.    Significantly, there was no evidence given by the Worker that he reported a work injury to Dr Brdarevic prior to 6 August 2021 contrary to the Member’s finding. In the absence of such evidence disputing history recorded in the GP’s clinical records and on a fair reading of his report, it was simply not open to the Member to engage in a process of reconstruction of the history of reporting of a work injury in that manner.
51.    The approach of the Member to the issue of the date of complaint of [a] work injury to Dr Brdarevic was impermissible and constitutes an error.”
In response, the respondent submits:
“20. The Appellant in paragraphs 48–50 contends that Dr Brdarevic cannot be relied upon to find injury because of a lack of clear history of injury on 29 June and 14 July. It should be noted that these are entries in clinical notes (see Demasi) and Dr [Stening] despite the obvious error in his report supports a work injury at on [sic] 2 August 2021 before the injury is mentioned by the respondent. In any event the timeline is such that the injury was note [sic] well within the 2 months the appellant alleges it took the respondent to complain to Dr Brdarevic, which in any event is close in its proximity to the injury.
21. This ground of appeal fails to consider that in paragraph 55 of the reasons the member found that the MRI showed a recent tear of the Miniscus [sic]. Dr Miniter the appellant’s IME does not deal with this evidence and the member was entitled to use this evidence to find there was a recent event that caused this tear, namely the injury on 10 June 2024.”
In reply, the appellant says that the reference to the “recent tear of the Miniscus [sic]” highlights the Member’s errors in all grounds of appeal. Namely that the Member made as series of assumptions and inferences not available to be made on the evidence.

Consideration

This ground really misstates the approach that the Member took. At reasons [63], that is the paragraph immediately before the paragraph which is criticised in this ground, the Member gave herself the appropriate Mason v Demasi direction. This direction, inter alia, requires clinical records to be approached with caution because they are unlikely to be a verbatim transcript nor are they produced for a legal purpose. Dr Brdarevic was treating the respondent and thus medical treatment was the focus. It is true that the Member states at reasons [64] that that the “reference to ‘right knee injury’ supports the [respondent’s] submission that the [respondent] injured his right knee at work and reported the work injury to Dr Brdarevic.” The Member, later in the same paragraph says: “In support of this there is no suggestion in the evidence before me that the [respondent] had suffered any other injury to his right knee apart from the injury he sustained to his right knee at work on 9 June 2021.” The Member had reviewed the doctor’s notes, seeing that a right knee injury was being treated and notes that there is no suggestion of any other injury to the right knee. I note that this remark is not challenged.
Far from being an error, this was the Member adopting a principled approach to assessing the clinical records (Mason v Demasi) and performing the type of evaluative judgement as I have referenced from Langford.
The appellant’s approach in this ground invites the reading of the doctor’s notes in a way which has no regard to the remarks of Basten JA in Mason v Demasi about the principled way to approach such material. Indeed it suggests a strict reading of that material as if it were produced specifically for legal proceedings.
No error has been established.
Ground Six is dismissed.

AS TO GROUND SEVEN

The appellant submits that the histories taken by Dr Stening and Dr Endrey-Walder on the issues of injury and causation were flawed.
The appellant relies on cases such as Australian Securities and Investments Commission v Rich[127] and Paric v John Holland Constructions Pty Ltd;,[128] to say that the evidentiary basis for the opinions was not sound.[129]
[127] [2005] NSWCA 152; 218 ALR 764, [101]–[102].
[128] [1985] HCA 58; [1984] 2 NSWLR 505, 509–510 (Paric).
[129] Appellant’s submissions 2 May 2024, [52].
The respondent accepts that there were inaccuracies in the records regarding reports of injury. However the respondent says these inaccuracies “are not of a magnitude to render the [Member’s] findings invalid.”[130]
[130] Respondent’s submissions 31 May 2024, [22].
The appellant made no submission in reply with respect to Ground Seven.

Some principles about expert evidence in the Commission

The rules of evidence do not apply to Commission proceedings.[131] By a combination of the Rules[132] and Procedural Direction PIC4 – Expert witness evidence, the requirements for expert evidence in the Commission are set out.
[131] Section 43(2) of the 2020 Act.
[132] Rules 34 and 35.
The requirements for expert evidence in a non-evidence based jurisdiction have also been subject to various judicial pronouncements, the effect of which can be summarised as follows:
(a)    “the question of the acceptability of expert evidence will not be one of admissibility but of weight”;[133]
(b)    “the principle[s] in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved”;[134]
(c)    “Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion”;[135]
(d)    “A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence”,[136] and
(e)    “the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.”[137] This quote was in relation to the former Workers Compensation Commission; the provisions which applied in that case have not been modified in this Commission.
[133] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), [83].
[134] Hancock, [88].
[135] Paric, 510A.
[136] Hancock, [92].
[137] Hancock, [82].

Consideration

The whole issue of the inconsistencies with the histories given at various times by the respondent was very much a live issue before the Member. The appellant addressed at length on the problems and inconsistencies it had identified in the evidence. The appellant also addressed the Member on the principles which are the subject of this appeal ground.[138] The appellant asserted that there was no “confluence between the asserted facts and the assumptions or opinion that the doctors have relied on.”[139] It was submitted to the Member that there was no fair climate for the expert opinion because the facts were completely different. The appellant did note, quite correctly, that the “facts don’t have to correspond with complete precision”[140] but the overall purport of the submission was that the facts were simply too different.
[138] T 22–23.
[139] T 22.8–10.
[140] T 22.23.
The Member, having been taken to these issues by the appellant, was alive to this controversy. At reasons [28]–[30] and [33]–[37] with respect to Dr Stening and Dr Endrey-Walder, the Member set out the various issues in terms of factual problems and inconsistencies. The Member recorded the appellant’s submission that no fair climate for the expert opinions existed at reasons [42].
The Member, in light of these arguments, then proceeded to evaluate the evidence. It is apparent that the Member was most taken by the objective evidence of “recent” injury to the respondent’s right knee as revealed in the MRI scan of 13 July 2021,[141] describing this evidence as “significant”.[142] The Member had also noted that there was no evidence that the respondent had experienced right knee symptoms before 9 June 2021,[143] nor was there any “suggestion in the evidence before me that the [respondent] had suffered any other injury to his right knee apart from the injury he sustained to his right knee at work on 9 June 2021.”[144]
[141] ARD, p 118.
[142] Reasons, [56].
[143] Reasons, [54].
[144] Reasons, [64].
The Member examined the histories given by the respondent, finding that he had “consistently provided the same history of the mechanics of the fall”.[145] The Member then said this about the MRI scan:
“The MRI scan demonstrates a recent leakage to a Baker's cyst, which is consistent with the [respondent’s] presentation of pain at the practice of Dr Brdarevic on 29 June 2021. The MRI scan also documents a recent meniscal tear in the right knee. There is nothing before me to suggest the [respondent’s] injury to his right knee occurred as a result of an incident other than the work accident on 9 June 2021.”[146]
[145] Reasons, [67].
[146] Reasons, [69].
I have stated the principles above. As stated, there does not have to be precise symmetry between the assumed facts and the expert opinion evidence. But broad departures can take place and not affect reliance on the opinion.[147] Further, deficiencies can be made good by other evidence.[148] This was the process the Member was engaged in while testing the appellant’s submission about whether a fair climate existed for the expert opinion of the two doctors. Clearly other evidence, such as the MRI scan results and the fact there is no allegation of the respondent suffering injury to his right knee in any other event, were significant in the Member’s ultimate determination.
[147] Paric, 510A.
[148] Hancock, [92].
The difficulty with the appellant’s argument in this ground is apparent. Whilst it has stated aspects of the principles, it has not interrogated those principles in full nor has it applied them to the facts of this matter to show that a fair climate for the opinion had not been established. The real question about whether a fair climate existed for the two opinions relates in no small way to the MRI scan results. I would note that Dr Endrey-Walder’s opinion of 17 July 2023[149] is very much informed by the results of the MRI scan. In his “Opinion” section,[150] the doctor highlights the tear of the medial meniscus. The doctor also discounts any arthritic changes in the right knee based on his assessment of the MRI.[151] A fair reading of this opinion would reveal that while there were issues with the history provided, the opinion itself is in most part based upon the MRI results.
[149] ARD, p 48.
[150] ARD, p 52.
[151] ARD, p 53.
Applying the principles I have outlined above, the deficiencies in the history were made good by other evidence, namely the MRI.
Likewise, Dr Stening takes a brief history, noting that the respondent landed heavily on his left limb.[152] I have dealt with this “mistake” in response to Ground Four (above). Dr Stening also notes the tear revealed by the MRI.[153] In answering questions about Associate Professor Miniter’s opinions, Dr Stening relied almost entirely upon the MRI scan.[154] Again with respect to Dr Stening, the MRI scan is “other evidence” making good the deficiency in the history.
[152] ARD, p 146.
[153] ARD, p 146.
[154] See answer to question 1, ARD, p 142.
I would also remark that while A/Prof Miniter identifies issues with the history, he too viewed the MRI, noting the tear which he described as “a significant lesion”.[155] The Associate Professor notes the lesion is described as recent, which he says is “very difficult to determine”. Nevertheless the Associate Professor has accepted that the respondent has right knee issues.
[155] See answer to question 4, Reply, p 145.
The appellant has not identified how the Member was wrong, in the Raulston sense and in terms of the approach to expert evidence I have set out above. Clearly there were issues with the various histories recorded. The Member’s task though was not as simple as viewing the histories in the expert reports and giving them little or no weight because of inconsistencies. Rather, the Member’s task was to examine the entirety of the evidence in order to evaluate whether a “fair climate” existed for the opinions to constitute a satisfactory basis to make findings.[156] This the Member did and did so without error.
[156] Hancock, [82].

DECISION

The Certificate of Determination dated 4 April 2024 is confirmed.

Judge Phillips
PRESIDENT

6 March 2025