Workers Compensation Nominal Insurer v Isaac - [2024] NSWPICPD 84

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Workers Compensation Nominal Insurer v Isaac [2024] NSWPICPD 84
APPELLANT:	Workers Compensation Nominal Insurer
FIRST RESPONDENT:	Zardi Isaac
SECOND RESPONDENT:	Bedlinen & More Pty Ltd (in liquidation)
INSURER:	Insurance & Care NSW (iCare)
FILE NUMBER:	A1-W5411/23
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	16 December 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the interlocutory decision dated 10 November 2023 (as amended) pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. Remit the matter to the Division Head of the Workers Compensation Division to reconsider, or allocate the matter to another Member to reconsider, the Certificate of Determination dated 10 November 2023 (as amended), to accord with the reasons at paragraphs [42] to [45] herein, to facilitate amendment of the obvious error. 3. The Certificate is otherwise confirmed.
CATCHWORDS:	WORKERS COMPENSATION – factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings – error of law asserted in relation to adequacy of reasons and terms of referral to a medical assessor
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox Lawyers
First Respondent:
Mr R Stanton, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607
MEMBER:	Ms L Drake
DATE OF MEMBER’S DECISION:	10 November 2023

INTRODUCTION AND BACKGROUND

Ms Zardi Isaac was employed from 2008 as a full-time retail store manager by the second respondent who was uninsured for the purposes of the Workers Compensation Act 1987 (the 1987 Act). Accordingly, the Workers Compensation Nominal Insurer, which was the first respondent in the first instance proceedings, is the appellant in these proceedings. The second respondent did not appear at or participate in the proceedings before the Member, nor has it sought to appear on this appeal.
ON 6 MAY 2020, MS ISAAC INJURED HER RIGHT SHOULDER IN THE COURSE OF HER EMPLOYMENT WITH THE SECOND RESPONDENT. THE APPELLANT ACCEPTED LIABILITY TO PAY COMPENSATION UNDER THE 1987 ACT WITH RESPECT TO THAT INJURY. MS ISAAC ALSO ALLEGED SHE DEVELOPED A LEFT SHOULDER CONDITION AS A CONSEQUENCE OF OVER-USING HER LEFT ARM WHILE TRYING TO PROTECT HER INJURED RIGHT SHOULDER. THE APPELLANT HAS DISPUTED THIS ALLEGATION.
MS ISAAC LODGED AN APPLICATION TO RESOLVE A DISPUTE (ARD) CLAIMING A LUMP SUM FOR A 12% TOTAL WHOLE PERSON IMPAIRMENT (WPI) UNDER S 66 OF THE 1987 ACT ON THE BASIS OF IMPAIRMENTS IN BOTH UPPER EXTREMITIES. SHE ALLEGES TWO MECHANISMS OF INJURY TO THE RIGHT SHOULDER, FIRSTLY A PERSONAL INJURY (S 4(A) OF THE 1987 ACT) ON 6 MAY 2020 WHEN SHE STRUGGLED TO OPEN A ROLLER DOOR (ALSO HEREIN DESCRIBED AS THE “FRANK INJURY”), AND SECONDLY, THROUGH A GRADUAL DEVELOPMENT OF PAIN WHILE UNDERTAKING REPETITIVE AND STRENUOUS DUTIES IN UNPACKING HEAVY BOXES AS WELL AS LIFTING THE SAID ROLLER DOOR OVER SOME MONTHS LEADING UP TO 6 MAY 2020. THIS SECOND MECHANISM HAS BEEN, AND WILL IN THESE REASONS BE, REFERRED TO AS THE NATURE AND CONDITIONS (OF HER EMPLOYMENT WITH THE SECOND RESPONDENT) FOR CONVENIENCE.
The main issue between the parties was whether the development of the left shoulder condition was a consequence of Ms Isaac overusing her left arm while trying to protect her injured right shoulder. The second essential issue fought between the parties was whether Ms Isaac should be allowed to rely upon the nature and conditions allegation on the basis that (the appellant said) it had not been formally claimed or particularised in a timely way.
The Member found in favour of Ms Isaac with respect to both issues and remitted the lump sum claim to the President for referral to a medical assessor (MA) to assess any permanent impairment with respect to the right upper extremity (shoulder) and left upper extremity (shoulder) on the basis of one date of injury, “6 May 2020 (deemed)”. The appellant appeals against that decision, but only as to the first “left shoulder” issue, not the second “nature and conditions” issue.
After the Member’s decision on 10 November 2023, the appellant wrote to the Commission on 23 November 2023 seeking amendment and/or reconsideration (under s 57 of the Personal Injury Commission Act 2020 (the 2020 Act) of the Certificate of Determination (COD) to provide for terms of the referral to the MA which identified two separate “injuries” (in the sense of injurious events) apparently for the purpose of requiring the MA to conduct separate assessments with respect to the frank injury and the nature and conditions of the employment. Ms Isaac opposed that request, saying she has never sought two separate lump sums under s 66 of the 1987 Act, and “there should be no division between the effects of the two found injuries”. However, Ms Isaac conceded that the Member did find two separate injuries (injurious events) and that it would be preferable for the referral to include a further date of injury (6 May 2020) as well as 6 May 2020 (deemed). On 5 December 2023 the Commission wrote to the parties saying that the referral was framed as per the COD and that the Member believed it should not be amended.
On 10 November 2023 the appellant requested another reconsideration of the COD pursuant to s 57 of the 2020 Act. It is unnecessary to detail this further except to say it was a proper request for the purpose of facilitating changes to regularise the previous naming of the parties, and to enable the appellant to be joined as a party. A series of amended COD’s (26 March, 24 April and 29 April 2024) were then issued mainly for this purpose.

ON THE PAPERS AND THRESHOLD MATTERS

Section 52(3) of the 2020 Act allows the Commission to exercise functions under that Act without holding any conference or formal hearing if satisfied that sufficient information has been supplied. Given Procedural Directions PIC2 and WC3; and the documents and submissions before me, I am satisfied I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing.
Ms Isaac disputes that the threshold requirements as to quantum under ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. She says the appellant’s submissions only assert the amount in issue exceeds the amounts referred to in s 352(3) (“at least $5,000 … and … at least 20% of the amount awarded in the decision appealed against”), and because no amount has been awarded, the s 352(3) pre-conditions have not been met.
Ms Isaac also points out that the appellant did not (initially) submit that the Member’s decision was interlocutory – even as an alternative to its submission that the decision was a final one. Ms Issac then submits that even if the appellant “was to belatedly seek leave [to appeal] pursuant to s 352(3A)”, it is too early to say whether a medical assessor or medical appeal panel would find a sufficient degree of whole person impairment (WPI) to overcome the threshold under s 66 of the 1987 Act – resulting in a relevant “amount awarded”. Ms Isaac says there would thus be no practical reason for an appeal.
On 22 October 2024 I issued a direction, noting that although no final view had been formed on the question of whether the decision was interlocutory or final, I was of a tentative view that it was interlocutory, and asked whether the appellant wished to alternatively allege the decision was interlocutory within the meaning of s 352(3A) of the 1998 Act. I also noted that further submissions from Ms Isaac were not required unless she objected to the appellant being able to supplement its submission to alternatively assert the decision was interlocutory. There was no further submission from Ms Isaac.
The appellant provided further submissions adhering to its earlier position that the decision was final, but now also alternatively alleging it was interlocutory, and giving further submissions as to why leave ought to be granted. It is unnecessary to set out those further submissions as I am satisfied that the circumstances of this case allow for the Member’s decision being properly classifiable as interlocutory and that leave to appeal should be granted under s 352(3A).
I do not understand Ms Isaac’s submissions to be actively opposing such a grant of leave if the Commission believes this to be the appropriate course. They have rather been put to show that an appeal may not have been available on the basis of the appellant’s primary submissions. That has changed given the appellant’s alternative reliance on s 352(3A) in its further submissions. This allows me to provide brief reasons in support of the finding I now make that leave to appeal is granted pursuant to s 352(3A) on the basis that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
In Licul v Corney,[1] the High Court said, in short, that the question of whether or not a decision is interlocutory depends upon whether the judgment or order finally disposes of the rights of the parties. The present case involves a determination of injury and referral to a medical assessor to assess any WPI when an appeal has been lodged before the assessment has occurred (or has commenced with Ms Isaac seeing the MA but not completed in the sense of any certificate or WPI assessment having been published). Essentially, the same circumstances arose in DGL (Aust) Pty Ltd v Martino[2] when Wood DP considered various authorities before finding that the decision the subject of the appeal in that case was interlocutory, including the analysis of McColl JA (with Tobias JA agreeing) in South Western Sydney Area Health Service v Edmonds,[3] where her Honour found that the relevant decision (also involving the same or similar circumstances) was interlocutory.
[1] [1976] HCA 6.
[2] [2023] NSWPICPD 30 (DGL).
[3] [2007] NSWCA 16.
I respectfully agree with the analysis of Wood DP in DGL. Accordingly, it is my opinion that the Member’s decision in the present case is interlocutory and I grant leave to appeal her decision, dated 10 November 2023 (as amended), pursuant to s 352(3A) of the 1998 Act.

THE EVIDENCE

The evidence comprised the ARD and Reply (both with attached documents), and the history contained in a report of Dr Craig Waller dated 18 September 2023. The Member decided to disallow the opinion evidence in Dr Waller’s report under regs 44 and 45 of the Workers Compensation Regulation 2016. That decision has not been challenged.

THE MEMBER’S REASONS

The Member noted the appellant’s submission that a delay of two years between the frank injury and the complaint of left shoulder symptoms made it unlikely that they were related to the right shoulder but have rather resulted from age and natural deterioration of an underlying condition.
The Member said it was important to note that Ms Isaac suffered a full thickness tear of the supra-spinatus tendon in her right shoulder in the “frank injury” – and that this was “not a case limited to an aggravation of pre-existing age-related changes”.[4] She then noted the reports (dated 28 September 2021 and 16 November 2022) from Dr James Bodel, orthopaedic surgeon, recording a history “of problems lifting the front security roller door for some months prior to a frank injury on 6 May 2020” and “outlining the nature of her work as being quite heavy, involving unpacking product and putting it on display …”.
[4] Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607 (reasons), [25].
The Member also referred to Dr Bodel taking a history of Ms Isaac having a subsequent gradual onset of left shoulder girdle pain, which was not as severe as the right shoulder pain. She then noted Dr Bodel found the injuries “were caused by the nature and conditions of [Ms Isaac’s] work, in particular trying to open the malfunctioning roller door … over a period of months leading up to 6 May 2020 when she sustained a frank injury”, and he “considered that it was probable that her injuries over time aggravated, accelerated, exacerbated or caused to deteriorate an underlying [rotator cuff disease]”.
The Member then considered[5] the report dated 2 March 2022 from Dr Powell, orthopaedic surgeon, relevantly noting that Ms Isaac “sustained an injury to her right shoulder … on 6 May 2020” when “lifting the shutter and feeling a sudden onset of pain …”. The Member also noted that Ms Isaac told Dr Powell that one of her jobs involved opening the shop up in the mornings 5 to 6 times a week, requiring her to lift the front roller shutter door, and “they had been having problems with the shutter for approximately six months prior to the incident”.
[5] From reasons, [27].
The Member noted Dr Powell’s history that Ms Isaac remained symptomatic in her right shoulder, with intermittent sharp pain over that shoulder on a daily basis, and that Dr Powell noted that Ms Isaac was complaining “[i]n more recent times … of the development of some left-sided anterosuperior shoulder pain without any specific precipitating accident”.
The Member also noted Dr Powell’s diagnosis of a right shoulder injury in a work incident on 6 May 2020 which likely represented a muscular injury involving the right rotator cuff. With respect to the left shoulder, the Member noted that Dr Powell opined that he did not believe the left shoulder symptoms could be considered a consequential injury given that they developed insidiously with no specific precipitating incident and while she was on light duties and performing normal physiological activities.
The Member said she was satisfied that Ms Isaac developed left shoulder symptoms over time after the injury to her right shoulder without “an immediate occurrence”. She said she had to determine whether the continuation of the right shoulder symptoms caused Ms Issac to rely on her left shoulder and develop pain, then said she was satisfied that it did so. She said that there was “a clear reference to left shoulder pain on 21 April 2022”, referencing Ms Isaac’s visit to Dr L Kodsi and that doctor’s clinical record on that day.
The Member also said that she was not persuaded to “any adverse conclusion regarding [Ms Isaac’s] credibility because she did not develop left shoulder pain earlier or mention it more often. It was a gradual onset” and the Member concluded “that the gap in time between her right shoulder injury and the onset of left shoulder pain was reasonable in the circumstances”.
The Member then said she preferred the findings and opinion of Dr Bodel as to the WPI and “the causative involvement of the left shoulder”, and went on to find, firstly, a right shoulder injury as a result of lifting in the course of employment including repetitive lifting of the roller door, and secondly, a “frank injury” on 6 May 2020 “when lifting a roller door”, and thirdly, a consequential injury to the left shoulder “as a result of reliance on her left shoulder following the injury to her right shoulder”.[6] Essentially the same findings then appear as determinations in the Member’s Certificate of Determination (COD).
[6] Reasons, [31].
The Member then ordered an award for Ms Isaac with respect to injury to the right shoulder resulting from “the nature and conditions of her employment and a frank injury sustained on 6 May 2020” (Order 4), and with respect to injury to her left shoulder “as a consequence of reliance on her left shoulder following the injury to the right shoulder …” (Order 5).

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a)    error of law in referring a single injury, having found both a disease injury and a personal (frank) injury (Ground 1),
(b)    error of fact in finding consequential injury (Ground 2), and
(c)    error of law in failing to give adequate reasons or to engage in proper, genuine or realistic consideration of the issues (Ground 3).

NATURE OF THE APPEAL

This appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether or not the decision was 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.
In Raulston v Toll Pty Ltd,[7] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr,[8] as to the nature of the appeal process under s 352(5) of the 1998 Act, relevantly 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”.
[7] [2011] NSWWCCPD 25, [19].
[8] (1966) 39 ALJR 505, 506.
In Northern NSW Local Health Network v Heggie,[9] Sackville AJA, (Basten and Ward JJA agreeing), stated: “A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks … a different outcome is preferable …”.

SUBMISSIONS

[9] [2013] NSWCA 255 (Heggie), [72].

The appellant’s submissions as to Ground 1

The appellant says the Member found “two dates of injury”, but there is a disconnect between determinations numbered 1–3 in the COD and the orders in the COD, particularly Order 6 – the referral to a MA with a date of injury 6 May 2020 (deemed), with there being no referral of the “frank injury occurring on the same date as the deemed date of injury”. The appellant says the referral needed to reflect those findings.
The appellant says Order 6(a) is “infected with two legal errors”, firstly, it is contrary to the factual findings made and thus lacks a factual foundation, secondly, it ignores the s 322(3) of the 1998 Act provision that “impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of [WPI] …”.
The appellant says the Member’s findings “were not of one cause of injury”, but a finding of injury due to an incident on 6 May 2020 and, additionally, a disease injury over time, with a deemed date of injury in accordance with ss 15 and 16 of the 1987 Act.
The appellant also says “[w]hether or not the pathology arising from what should have been two injuries should be aggregated is a separate question.” They were found to be multiple, not singular, injuries and should be assessed accordingly.
In response to a direction I issued on 4 December 2024 inviting the parties to clarify their submissions relating to the content of the referral to the MA, the appellant provided further submissions, firstly putting that the “injuries” are not “the same injury” for the purpose of s 322(2), and that the “MA should be required to assess both injuries”. Further details of this are set out in the discussion and findings as to Ground 1 below.

Ms Isaac’s submissions as to Ground 1

Ms Isaac says the appellant’s point that the Member found both a personal and disease injury then referred only one of those injuries is partly correct – but only insofar as there being a simple drafting oversight – which can be remedied by simply inserting in the COD “6 May 2020 and” prior to “6 May 2020 (deemed)”, and this should be corrected under Rule 7 of the Personal Injury Commission Rules 2021 (rule 7).
Ms Isaac then points out that the appellant’s submission that “the injuries (as found) are multiple, not singular, and have to be assessed accordingly” does not explain why or how s 322(3) means that impairments from one injury are assessed together but impairments from multiple injuries are not – and if the appellant is putting this, it would be inconsistent with relevant authorities, including Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes.[10]
[10] [2015] NSWWCCPD 35 (Barnes).
Ms Isaac develops this point, noting the comments of Roche DP in Barnes – that the term “injury” in the singular can be applied as if it also used the plural “injuries”, noting the terms of s 8(b) of the Interpretation Act 1987: “a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form”.[11] Ms Isaac says that permits the advancement of “a claim for a single s 66 sum as a result of an overall degree of impairment that results from multiple injuries. This is what is being done in these proceedings”.
[11] Barnes, [56].
In response to the 4 December 2024 direction, Ms Isaac provided further submissions, firstly putting, in relation to impairments that “are to be assessed together” for the purposes of s 322(2) of the 1998 Act, that “it is uncontroversial the worker has suffered a full thickness tear of the supraspinatus tendon in her right shoulder … Hence with respect to the right shoulder this is the only pathology”.
Ms Issac says, as an alternative to the Barnes approach, this case is an appropriate one for s 322(2) to direct that impairments resulting from the same injury (pathology) being assessed together – thus permitting the two injurious causes of the right shoulder pathology to be aggregated in the one overall impairment assessment of the right shoulder.
Ms Isaac also put that her left shoulder should be “assessed together” for the purposes of either s 322 (2) or s 322(3) as it is a consequential condition which arises out of the same incident.

DISCUSSION AND FINDINGS AS TO GROUND 1

There is some unanimity between the parties with respect to Ground 1, in that the COD does not fully reflect the terms of the main findings made at paragraph [31] of the reasons. The appellant submits that if Ground 1 is upheld, the determination should be set aside and replaced with a referral order reflecting the said findings made by the Member. The appellant does not provide any detail for or develop this submission except to say that Order 6(a) is contrary to the factual findings made and thus lacking a factual foundation.
Ms Isaac says in this respect that the error is a simple drafting oversight which can be remedied by a minor amendment under the rules to simply add “6 May 2020 and” prior to “6 May 2020 (deemed)”, and points to s 3(c) of the 2020 Act providing that one of the objects of that Act is to enable the Commission to resolve the real issues justly, quickly, cost effectively and with as little formality as possible. The appellant has put nothing to say otherwise in its primary submissions or by any submissions in reply.
I accept that the error was likely a simple drafting oversight. I cannot see any other likely explanation, and the appellant has not pointed to any. It is plainly “a defect of form” and/or displays “an inconsistency between the stated decision and the stated reasons” within the meaning of s 57(6) of the 2020 Act. It is similarly inconsistent with Order 4. The remedy Ms Isaac proposes is also acceptable. It makes it clear enough there are two injurious events or mechanisms. But I would not, as put for Ms Isaac, rely upon rule 7. I would rely on ss 42, 43 and 57 and 3(c) of the 2020 Act in the same or similar way as Phillips P did in H. J. Heinz Company Australia Limited v Tagudin,[12] when his Honour said:
“The Member … finds that the employer’s action was not reasonable, which is the ratio of the decision and which has been subject to challenge in this appeal. There appears to be an obvious error in the drafting of Order 2 of the [COD] which does not accurately reflect this finding. Order 2 neglects to reflect the finding that the employer’s action was not reasonable. This obvious error is amenable to correction so as to ensure that this dispute is not complicated by this circumstance, consistent with the Commission’s statutory mandate and the Commission’s procedure found in s 43 of the 2020 Act …”.
[12] [2023] NSWPICPD 82, [67].
The most efficient power to correct this obvious error is in s 57(2) of the 2020 Act. It provides:
“If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.”
But while s 57(2) does not limit exercise of the reconsideration power in s 57(1), it does appear to limit exercise of the s 57(2) power to the President. Given this, and because the reconsideration power is usually exercised by a member who made the original decision, the best course would be for me to remit the matter to the Member to conduct a s 57(1) reconsideration in accordance with the reasons at [42]–[45] above. However, I understand the Member is unavailable until about mid 2025. Thus I will remit the matter to the Division Head to undertake the reconsideration or allocate the task to another member.
The appellant’s second Ground 1 point is that Order 6(a) ignores s 322(3) of the 1998 Act which provides that impairments resulting from more than one injury arising out of the same incident are to be assessed together to assess the degree of WPI. The appellant has set out the terms of s 322(3) which relevantly provides: “(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker”.
The appellant then puts that the findings “were not of one cause of injury” rather the frank incident on 6 May 2020 and, additionally, “a disease injury, occurring over time rather than in one event, and carrying a deemed date”. But as Roche DP noted in Barnes (at [45]–[47], relying on the comments of Giles JA (Hodgson JA and Brownie AJA agreeing) in Wyong Shire Council v Paterson ([2005] NSWCA 74 at [38]),
“… the description of how the injury was received, for example, due to a frank injury or due to repetitive activities … are descriptions of mechanisms for suffering an injury … In other words, an “incident” (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant ‘injury’ is therefore the pathology that has arisen out of or been received… Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska ([2000] HCA 45; 200 CLR 286) held that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’. The cause of the injury (the injurious event) is ‘not the important matter’ (Latham CJ in Ward v Corrimal - Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable … His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences … It follows that, on this approach, assuming (without deciding) that Ms Barnes suffered the same pathology in each incident, it would have been open to the arbitrator to make the remittal to the registrar in the terms she made it …”
Having regard to these principles together with a lack of any case law, statutory provision or other basis put for the appellant to the contrary, I do not accept the appellant’s argument that the mere fact that there were two injurious mechanisms automatically means there should be two separate assessments for the right shoulder injury. Further reasons in support of this finding follow.
I reject the submission that there is a “legal error” by ignoring s 322(3). The 4 December 2024 direction includes the following:
“The appellant has made a submission (at [13]) which is commented on in the respondent worker’s submission (at [2.5]). The said appellant’s submission says it is ‘a separate question’ as to ‘[w]hether or not the pathology [arising from] what should have been two injuries should be aggregated’ and ‘have to be assessed accordingly’. The Commission finds this unclear, including as to whether or not the appellant is working on the premise that there will necessarily be an entitlement to engage in a further ‘aggregation’ argument after the [MA] reports. … Accordingly, the appellant is invited to make any submission to clarify the reference to ‘aggregated’ and ‘aggregation’, including whether the relevant injury in this case is “the same injury” within the meaning of s 322(2) … and/or how, if at all, s 322(3) … is relevant and/or to reply to the submissions for the respondent worker at ([2.5]–[2.6])”.
The appellant’s supplementary submissions then relevantly add that:
“ … the injuries are not ‘the same injury’ for the purposes of s 322(2). It is ‘a separate question in the sense that the first step is to identify the injury or injuries, and if there be more than one, the separate additional question is whether they are to be aggregated (and that finding should inform the wording of the referral so that there is no error in aggregation). The difficulty with the Member’s decision is that it makes a finding of a multitude of injuries, but only makes a single injury referral.”
This submission does little more than repeat the appellant’s complaint and position that the Member erred because there was only “a single injury referral”, thus there should be separate assessments. But this does not provide an explanation for the basis of that position, including any statutory or case law authority. Nor does it, at least adequately, respond to the reliance Ms Isaac makes on the decision Roche DP in Barnes, except to say that the “Appellant’s position is not contrary to Barnes” and that:
“There is nothing in the Interpretation Act 1987 which has the effect that if the worker is injured in totally different circumstances that they are the same singular injury. Indeed, if the plural simply converted to the singular, then aggregation would never arise at all, and that cannot be the intended effect of s 322”.
I do not accept this submission. It does not adequately engage with the point of the submissions for Ms Isaac (at paragraph [38] above). It also fails to reconcile the appellant’s position with the comments of Roche DP in Barnes (at [56]) – despite asserting such position was not contrary to Barnes). This passage in Barnes should be set out fully, as follows:
“…under the Interpretation Act 1987, unless a contrary intention appears, the reference to a word in the singular form includes a reference to the word in the plural form … I am not suggesting that Merchant [v Shoalhaven City Council [2015] NSWWCCPD 13], which dealt with a similar issue, but in a significantly different factual and statutory context, was wrongly decided ... With respect to the current claim, no contrary intention appears in the legislation. Therefore, as a matter of statutory interpretation, in the appropriate case, ‘injury’ in s 66(1) can include ‘injuries’ and is not confined to a single injurious incident or single injury. Having regard to Dr Assem’s evidence, the present case is an appropriate case for such an interpretation.”
The appellant has not otherwise made any submission that s 8(b) of the Interpretation Act 1987 should be construed differently to that preferred by Roche DP in Barnes, and in particular, it has not expressed an alternative position, let alone any analysis, regarding his finding (at [56]) that “[W]ith respect to the current claim, no contrary intention appears in the legislation”. For reasons to be developed below, these findings apply equally to Ms Isaac’s case. I respectfully agree with the above statement of principle by Roche DP and accept the relevant submissions for Ms Isaac (at paragraph [38] above).
Part of the reason I issued the 4 December 2024 direction was also to clarify the position of both parties in relation to s 322(2) of the 1998 Act, particularly as to whether the relevant injury in the case was “the same injury” within the meaning of 322(2). Relevantly, Ms Isaac put that she had already noted in her earlier submissions (at [1.7]) that “it is uncontroversial the worker has suffered a full thickness tear of the supraspinatus tendon in her right shoulder … Hence with respect to the right shoulder this is the only pathology. The appellant’s submission in this regard was to essentially repeat that “the injuries are not the same injury” for the purpose of this subsection, then saying that “the first step is to identify the injury or injuries, and if there be more than one, the separate additional question is whether they are to be aggregated…”. The appellant has not provided any basis, be it evidentiary or by legal principle, for its submissions in relation to s 322(3) or s 322(2). In these circumstances, I do not find its submissions persuasive and I do not accept them. I do accept Ms Isaac’s “same injury” submissions as it is consistent with the medical evidence and the Member’s findings, and there is no contrary relevant submission.
Ms Isaac submits that s 322(2) provides an alternative approach, permitting the two injurious causes of the right shoulder pathology to be aggregated in the one overall assessment of impairment with respect to the right shoulder. On a literal reading of the subsection that appears to be so, and I would be inclined to accept the submissions for Ms Isaac in this respect, particularly given the unpersuasive submissions for the appellant. However, this s 322(2) point is only an alternative argument for Ms Isaac. Her primary argument is based on Barnes – she has advanced a single claim for a single lump sum with respect to the right shoulder. I also note in this regard that the word “claim” has been used with respect to the nature and conditions allegation in the proceedings before the Member. However, it is clear that the use of this term in that context is irrelevant to the Ground 1 issue. It was used in the context of the nature and conditions issue (see paragraphs [4]–[5] above).
Importantly, Roche DP made it clear in Barnes that in formulating the terms of a MA referral, much depends on the facts of each case, including the way the parties plead and argue their cases. In this regard, I do not find the appellant’s above submission that Ms Isaac was “injured in totally different circumstances” helpful or persuasive. While it is not totally clear, it seems the appellant is saying the two injuries (injurious mechanisms) to Ms Isaac’s right shoulder occurred in totally different circumstances. If so, that is incorrect. The right shoulder injury (pathology) was essentially or mainly incurred gradually as a result of Ms Isaac opening the roller door over a period of some months leading up to 6 May 2020 – at which time there was a particularly significant manifestation or culmination (the frank injury) of that injury.
At one level it may be said that the two injurious mechanisms in this case are much the same and any distinction is artificial. Nevertheless, Ms Isaac argued for both the frank injury and the nature and conditions being responsible for the right shoulder injury, and this was found to be so by the Member. But it does not necessarily follow that there must be two separate assessments. Further, the particular circumstances in Ms Isaac’s case show the facts relating to the two injurious mechanisms are heavily entwined, and there is no existing claim or evidence which points to or indicates separate assessments. This raises a question of how the appellant expects the MA to conduct such a task in the particular circumstances of this case. However, it does not offer any submission, let alone provide a basis or any case or statutory authority, as to how the MA should identify and delineate the two separate impairments it (presumably) seeks.
There should be clarity for the MA. The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth edition provide (par 1.6 d) that “The referral for an assessment of [WPI] is to make clear to the [MA] the injury or medical condition for which the assessment is sought – see also paragraphs 1.43 and 1.44…”. In Barnes, the relevant expert evidence was from Dr Assem. Roche DP found (at [71]) that he,
“… apportioned responsibility for the single impairment between the three incidents. As there is only one employer, and, I assume, only one insurer, it was not necessary or appropriate for him to apportion liability for the impairment and his opinion on apportionment is not relevant to the issue before the Commission.”
The facts and circumstances in the present case also involve a claim for a single lump sum under s 66 from a single employer and single insurer. I am also of the opinion that it would not be necessary or appropriate for an apportionment of liability for the impairment given all the circumstances of the present case. One complication in Barnes was the employer’s argument that there were three separate claims for permanent impairment compensation with respect to the three injurious mechanisms, as the worker’s solicitor wrote three letters claiming lump sum compensation particularising a 5% WPI in respect of each of the first two incidents and 16% WPI in respect of the third. No such complication exists in the present case. There is also no evidence in the present case which undertakes a separation or apportionment of the assessments, except of course with respect to the left shoulder which is not relevant to the Ground 1 issue.
Ms Isaac has only made one claim for lump sum compensation, in the letter (ARD 35) from her solicitor dated 8 November 2021 claiming $27,250 for 12% WPI “in relation to the worker’s left and right upper extremities”. Again, the “single” claim relevant to the Ground 1 issue is with respect to the 8% WPI for the right shoulder.
Further, there has been no apportionment exercise in Ms Isaac’s case. The relevant issue only relates to the two injurious mechanisms with respect to the right shoulder, not the left. Dr Bodel found a single 8% WPI with respect to the right shoulder and a 4% WPI with respect to the left. Similarly, Dr Powell found a single 2% WPI with respect to the right shoulder – although that was allowing for the frank incident only. Roche DP based his decision in Barnes on a line of authority consistent with the proposition that a single impairment or condition can result from more than one injury. His analysis in this respect, both as to the principles and their application to Barnes, is set out at ([59]–[77]). I again respectfully agree with and adopt this analysis for the purposes of the present case on basis that the facts and circumstances of each case are relevantly analogous. The essential principle emerging from the line of authority and analysis of Roche DP in Barnes is that the authorities (including Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna[13] and Leppington Pastoral Co Pty Ltd v Juweinat[14]) are consistent with the proposition that “a single impairment or condition can result from more than one injury”.[15] The appellant has not made any clear submission to disagree with the applicability of this principle, or the relevance of the said line of authority and analysis, to the present case.
[13] [2008] NSWCA 354.
[14] [2002] NSWCA 228.
[15] Barnes, [66].

Similarly to the referral in Barnes, the Member’s referral required the MA in relation to the 6 May 2020 (deemed) date of injury, although the amendment of the obvious error will also include 6 May 2020 as the date of injury for the frank incident. The MA is being asked to provide an assessment, as each of the expert opinions in this case did, of the (single, with respect to the right shoulder) permanent impairment that has resulted from the two pleaded injurious mechanisms. This is consistent with the Member’s reasons and involves no error.
I also agree with, and adopt as being applicable to Ms Isaac’s case, the conclusion of Roche DP in Barnes (at [79]) where he said:
“Ms Barnes has made only ‘one claim’, namely, a claim for permanent impairment compensation of $49,087.50 in respect of a 26% (WPI), which impairment has resulted from the three events identified. That is so even if each event is regarded as a separate s 4 injury. Such a claim is open and is consistent with legislation and authorities. Different considerations would apply if (she) had separately claimed permanent impairment compensation for either her 2006 or her 2008 injury. That is not the situation in the present case”.
For those reasons Ground 1 fails.

Grounds 2 and 3 – submissions of each party, discussion and findings

It is convenient to deal with Grounds 2 and 3 of the appeal together as the content of both substantially overlap. The first complaint of error of fact in finding consequential injury the appellant points to is this passage at paragraph [28] of the reasons:
“… What has to be determined by the Commission is whether the continuation of her right shoulder symptomatology with unpredictable shooting pains occurring when lifting and undertaking domestic tasks using her right shoulder, caused her to rely on her left shoulder and develop pain. I am satisfied that it did”.
The appellant says this was an “unsupported finding, or at least one unjustified by reasoning”, and makes the same submission in relation to the Member’s statement (at reasons [29]), that there is “a clear reference to left shoulder pain on 21 April 2022”, and that:
“I am not persuaded to any adverse conclusion regarding [Ms Isaac’s] credibility because she did not develop left shoulder pain earlier, or mention it more often. It was a gradual onset. I have concluded that the gap in time between her right shoulder injury and the onset of left shoulder pain was reasonable in the circumstances.”
The appellant notes the Member’s statement (at reasons [30]): “I prefer the findings and opinion of Dr Bodel as to [WPI] and the causative involvement of the left shoulder” and submits that “[n]o reason was given for rejecting the appellant’s medical case (in particular the evidence of Dr Powell) in preferring that of Dr Bodel”.
Ms Isaac submits that the appellant’s submission regarding the Member’s statement (at reasons [30]) is overly simplistic as it ignores the context and associated explanations which led to the Member preferring the opinion of Dr Bodel. Ms Isaac also submits that the reasons should be read as a whole and doing so “more than adequately demonstrates her reasoning process for concluding there was a causally related left shoulder injury and why she did not prefer Dr Powell’s opinion that there wasn’t one”.
I agree with Ms Isaac’s above submissions in this respect and reject the appellant’s submissions. Before I provide reasons, the nature of the appellant’s submissions makes it appropriate that the following principles be noted. In Heggie, Sackville AJA said:
“The [1998 Act – s 294(2)] provides that the Commission is to attach to its [COD] a brief statement of its reasons [emphasis by Sackville AJA]. The [1998 Act, now relevantly s 43 of the 2020 Act] … also provides that proceedings are to be conducted as informally as proper consideration of the matter permits and that the rules of evidence do not apply. Having regard to these provisions, I think a fair reading of the Arbitrator’s reasons is that he did take into account the events preceding the alleged assault, but considered that they had little bearing on the issue of the reasonableness of the … actions”.[16]
[16] Heggie, [166].
The facts in Ms Isaac’s case are not identical with those in Heggie. But the circumstances still allow for a similar “fair reading” of the Member’s decision – by supporting the actual persuasion I have that the appellant’s submissions are, as put for Ms Isaac, “overly simplistic [and ignore] the context and associated explanations which led to the Member preferring the opinion of Dr Bodel …”.
Presumably, the appellant’s assertion of the finding (at reasons [28]) being “unsupported” or “unjustified by reasoning” does not include the accepted fact that Ms Isaac carries a right shoulder injury – or that the Member did not correctly identify the issue she was asked to decide. She set out the relevant aspects of Ms Isaac’s statement relating to her finding. At reasons [8] she noted Ms Isaac stating that from around December 2019 she was required to manually raise the broken roller door twice a day every day, often without any assistance, which she did with “great difficulty” – and “began to rely solely on her left arm to handle and carry objects”, and that “although her left shoulder would feel tired at the end of the day the pain in her right shoulder remained comparatively worse …”.
The Member then continued (at reasons [9]) to record Ms Isaac’s progress after the 6 May 2020 incident and the treatment she was receiving for her right shoulder, and noted:
“During this period [Ms Isaac] stated that she began to rely on her left arm to handle and carry objects. The left shoulder was tired at the end of the day but the pain in her right shoulder was comparatively worse …
‘I also became very protective of my right shoulder as I did not want to aggravate my pain or cause a further injury. As a result, I remained dependent on my left shoulder to reach for objects, put away groceries and open doors. This placed a significant strain on my left shoulder over time and I began to experience dull aches in my left shoulder after a long day of use’.”
Ms Isaac’s statement has 11 pages. The Member summarised the above parts of it to deal with the causation of the left shoulder issue. When read fairly, I infer she regarded these parts as particularly important for the purposes of her disposition of the case. This included reference to Ms Isaac being more focused on her right shoulder after it was injured compared to her left shoulder, even though she began “over time” to experience dull aches in the left shoulder.
The Member later noted (at reasons [26]) that Dr Bodel took a history of a “subsequent [to 6 May 2020] gradual onset of left shoulder girdle pain, not as severe as the right shoulder”, and, from the next sentence, found “her injuries [when read fairly, including her left shoulder], were caused by the nature and conditions of her work”, particularly in the months leading up to 6 May 2020. In the sentence immediately following that, the Member noted that Dr Bodel considered it “probable that her injuries over time aggravated … or caused to deteriorate an underlying disease being a rotator cuff pathology” (emphasis added). Clearly enough, and when read fairly, these comments include the left shoulder. I also draw the likely inference that the Member accepted the reliability of Ms Isaac’s statement, particularly as noted in in this paragraph and paragraphs [72]–[74] above. Any doubt about that is reasonably dispelled by the Member’s express conclusion (at reasons [29]) that she was “not persuaded to any adverse conclusion regarding [Ms Isaac’s] credibility because she did not develop left shoulder pain earlier, or mention it more often …”.
These passages, when read as a whole,[17] also show reasoning for the Member not being persuaded by Dr Powell’s evidence. Her summary (at [27] of the reasons) of his evidence is telling. It includes the “basis” of his conclusion that the left shoulder condition should not be considered a consequential “injury”. He relevantly said, in answer to a question put to him by the appellant as to whether the left shoulder injury was caused as a consequence of the right shoulder injury:
“… The left shoulder symptoms developed in an insidious fashion. There was no specific precipitating incident … clinical examination … was unremarkable. Her symptoms developed whilst she was on light duties and performing normal … activities. On that basis I do not believe this would be considered a consequential injury”[18] (emphasis added).
[17] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[18] Reply, p 28.
The Member then stated, in the first sentence of paragraph [28] of the reasons, immediately following her summary of Dr Powell’s evidence, “I am satisfied that [Ms Isaac] developed left shoulder symptoms over time after the injury to her right shoulder. This was not an immediate occurrence” (emphasis added). This was the context within which the Member ultimately preferred the findings and opinion of Dr Bodel.
Therefore, when the decision is read as a whole and fairly, it can be inferred that at least one reason in support of the findings and/or conclusions is that she found Dr Bodel’s opinion about the detail of the gradual onset of the left shoulder to be more persuasive than Dr Powell’s opinion (no causal connection as there was no specific precipitating incident, the symptoms developing while she was on light duties/normal activities).
The Member’s comment at reasons [29] that she was “not persuaded to any adverse conclusion regarding [Ms Isaac’s] credibility because she did not develop left shoulder pain earlier, or mention it more often” is a further reason in support of her satisfaction that there was a relevant causal relationship between the right shoulder symptoms and the onset of the left shoulder condition. In other words, the Member accepted the reliability of the evidence of Ms Isaac, and in circumstances where the appellant had put the credibility of her evidence in issue. The appellant said a two-year delay before a complaint was recorded made it unlikely that the left shoulder pain came on as a result of the right shoulder injury.[19]
[19] T 41.23–43.20.
The Member’s clear acceptance of Ms Isaac’s credibility is another reason she has provided in support of her relevant satisfaction and findings. That she accepted the statement evidence of Ms Isaac, as well as the opinion of Dr Bodel which was relevantly consistent with that statement, is also clearly implicit in this regard. This is particularly important in the context of Ms Isaac stating that although she started to notice tiredness and developing pain in her left shoulder, this was in circumstances where she remained more focused on protecting and obtaining treatment for her right shoulder. That of itself is also a reason which I infer the Member has given to support her conclusions and finding.
A further reason for the Member’s finding appears at reasons [29] – the “clear reference to left shoulder pain on 21 April 2022”, which the Member footnoted (at ARD, p 103). Dr Kodsi, her GP, recorded the consultation with Ms Isaac on that day as follows:
“… Left shoulder pain, had to drop worm water [sic] when try to pour it. because of pain … using L shoulder more cause some discomfort …” (emphasis added).
When read fairly and as a whole (in particular including the expression of satisfaction, at reasons [28], that Ms Isaac developed left shoulder symptoms over time after the injury to her right shoulder … not an immediate occurrence …”), it is clear enough that the Member’s statement in the first sentence of reasons [29] (the “clear reference to left shoulder pain on 21 April 2022”) shows she is referring to this piece of evidence as a reason in support of her satisfaction and finding that Ms Isaac suffered a consequential injury to her left shoulder as a result of reliance on that shoulder because of the right shoulder injury.
Each of the conclusions and findings were open to the Member and there was no error in the making of any of them. Thus, contrary to the appellant’s submission, there are multiple reasons provided in support of the Member’s conclusions and findings with respect to the alleged error of fact in finding consequential injury – if the reasons are read as a whole and fairly. The only points put for the appellant are that there was no reasoning at all, or if there was, it was obscure. I reject that submission for the above reasons.
My above analysis also applies to the appellant’s assertion of error of law in failing to give adequate reasons relating to Ground 3. As the appellant says, the two points made in this regard (failure to give adequate reasons and not giving real consideration to the issues) follow from, and overlap with, the appellant’s Ground 2 argument.[20] The only difference is that the appellant categorises the Ground 2 argument as an error of fact and the Ground 3 argument an error of law. However, I reject Ground 3 for the same reasons I have given in rejecting Ground 2 and for the following further reasons.
[20] Appellant’s submissions, [24].
The Member’s analysis and findings were brief. That does not necessarily equate to error. In Fire and Rescue NSW v S,[21] Roche DP referred to the following authorities and propositions:
“… ‘reasons need not be lengthy or elaborate’ (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443. The extent and scope of a [Member’s] duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 …”.
As explained … in Woolworths Ltd v Warfe [2013] VSCA 22 at [131]:
‘… reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Thus, as … stated in Murray Goulburn Co-op Co Ltd v Filiponi:
‘In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon [which] the decision was based.’’”
[21] [2015] NSWWCCPD 50, [142] and [145].
In my opinion, the above principles set out by Roche DP also apply to the circumstances of the present case, particularly with respect to the drawing of inferences of reasoning in the Member’s decision. Relevantly, there was a limited issue involving the causal relationship of the left shoulder condition to the right shoulder injury involving the analysis of relatively limited evidentiary content. In my view, the ultimate conclusion in the present case is necessarily implicit when the Member’s decision is read fairly and as a whole.
Further in each case (in Grounds 2 and 3) the conclusion and findings were open to her and were made without error. None of them was unreasonable or plainly unjust, or one where any available inference in the opposite sense to that chosen by the Member is so preponderant that her decision could be seen to be wrong.
The analysis and findings were brief. But that was also consistent with the statement the Member was required to give under s 294(2) of the 1998 Act and r 78(2) of the Personal Injury Commission Rules 2021. In Pollard v RRR Corporation Pty Ltd,[22] McColl JA (Ipp JA and Bryson AJA agreeing) said that a judge is not obliged to spell out every detail of the process of reasoning to a finding, but that “it is essential to expose the reasons for resolving a point critical to the contest between the parties” and “[t]he reasons must do justice to the issues posed by the parties’ cases … to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted …”. The reasons in the present case satisfy the test in my opinion for the reasons I have given above. Grounds 2 and 3 fail.
[22] [2009] NSWCA 110, [58]–[59].

DECISION

Leave to appeal the interlocutory decision dated 10 November 2023 (as amended) pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted.
Remit the matter to the Division Head of the Workers Compensation Division to reconsider, or allocate the matter to another Member to reconsider, the Certificate of Determination dated 10 November 2023 (as amended), to accord with the reasons at paragraphs [42] to [45] herein, to facilitate amendment of the obvious error.
The Certificate is otherwise confirmed.

Michael Perry

ACTING DEPUTY PRESIDENT

16 December 2024