Zahrouni v BSV Tyre Recycling Australia Pty Ltd
[2025] NSWPICPD 37
•29 April 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2025] NSWPICPD 37 |
APPELLANT: | Abdollah Zahrouni |
RESPONDENT: | BSV Tyre Recycling Australia Pty Ltd |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W3918/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 29 April 2025 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determinsation dated 30 July 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – distinction between error of fact and error of law – Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7 considered and applied – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 discussed – whether the Member erred in fact – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B Necovski, counsel | |
| John & Co Lawyers | |
| Respondent: | |
| Mr T Grimes, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL: | Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2024] NSWPIC 409 |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 30 July 2024 |
INTRODUCTION AND BACKGROUND
Mr Abdollah Zahrouni (the appellant) was employed by BSV Tyre Recycling Australia Pty Ltd (the respondent) as a truck driver. The appellant suffered an injury on 11 November 2015 when he was unloading tyres in the course of his duties. He lodged a claim for compensation and the respondent accepted liability in respect of the injuries to the neck, back and right shoulder. The appellant subsequently complained of left shoulder symptoms, which he attributed to the injury, or alternatively to the need to do more with his left arm after undergoing surgery to the right shoulder. Liability for the left shoulder was denied by the respondent.
On 10 August 2022, the appellant’s treating specialist, Dr Jonathan Herald, orthopaedic surgeon, recommended the appellant undergo a left shoulder reconstruction and rotator cuff repair. The appellant sought payment of the proposed surgery from the respondent. The respondent declined to pay for the proposed surgery, asserting that the left shoulder symptoms were unrelated to the injury.
The appellant brought proceedings in the Personal Injury Commission (the Commission), seeking payment of the proposed surgery pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act). The dispute came to conciliation and arbitration before a member of the Commission on 26 June 2024. The Member issued a Certificate of Determination on 30 July 2024, in which he determined that:
(a) the appellant did not injure his left shoulder on 11 November 2015;
(b) the condition of the appellant’s left shoulder was not either consequential to the injury on 11 November 2015, or to the surgery to his right shoulder on 23 October 2018, and
(c) the claim for a declaration pursuant to s 60(5) of the 1987 Act was rejected.
The appellant appeals the whole of the decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that the appeal can be determined on the basis of the documents before the Commission and their written submissions.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the written submissions made by the parties, including 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
The appellant’s statement evidence
The appellant provided a statement dated 11 April 2024.[1] He stated that he commenced employment with the respondent in 2015, and his duties involved handling large car and truck tyres as well as a variety of other tyres. He said he was required to manually lift and raise them before placing them onto the tray of the truck. He said that on 11 November 2015, during the course of performing those tasks, he suffered an injury to his back, neck, right shoulder and left shoulder. He said that the respondent accepted liability for the cervical spine, lumbar spine and right shoulder injury.
[1] Application to Resolve a Dispute (ARD), pp 1–4.
The appellant advised that on 25 February 2022 he made a lump sum claim pursuant to s 66 of the 1987 Act for 34% whole person impairment, which included injuries to the cervical spine, lumbar spine, right shoulder and left shoulder, as well as scarring resulting from surgery to his right shoulder in 2018. He said that the respondent disputed the claimed injury to the left shoulder.
The appellant stated that when he was medically examined for the first time after the injury, he did complain of pain in his left shoulder but he was more concerned about the severe pain he was experiencing in his lower back, neck and right shoulder. He indicated that he believed that the doctor overlooked recording the left shoulder symptoms.
The appellant said that at a consultation on 25 May 2022, he attended Dr Herald and complained of worsening pain in his left shoulder over the preceding year which had reached the point where he was unable to sleep at night. He stated that Dr Herald advised that the left shoulder symptoms were due to a rotator cuff tear that had progressed over time. He indicated that Dr Herald arranged for an MRI scan, which disclosed high grade partial thickness tears in both shoulders, and Dr Herald recommended surgical intervention.
The appellant reiterated that following the injury, he was initially more focused on getting diagnosed and being treated for his lower back, neck and right shoulder because those areas were more significantly affecting him, and he attributed the symptoms in the left shoulder to radiating pain from his right shoulder. He described the initial symptoms in his left shoulder as “discomfort”, but said that the symptoms deteriorated and by 2017 the pain in the left shoulder became unbearable, so he sought treatment from his general practitioner, Dr Adel Zaki.
The appellant referred to the medical records from Dr Zaki dating from 2017 to 2022 and the history and opinion recorded by Dr Peter Conrad, general surgeon, which he said supported his claim for the left shoulder. He indicated that, before the injury in November 2015, he had never experienced any pain or discomfort in the left shoulder and that he had not been involved in any incidents or accidents that may have caused the symptoms.
The appellant described the ongoing effects of the injury on his daily activities.
Dr Adel Zaki
Dr Zaki provided a report dated 29 November 2023, directed to the appellant’s legal representatives.[2] He advised that the appellant had first consulted him in relation to the injury on 5 May 2017. He reported that the appellant provided the history of a sudden onset of sharp lower back pain and referred pain into the left leg when lifting large tyres at work on 11 November 2015. He said that the appellant “was diagnosed” as having “bilateral sprain and secondary spasm of cervicodorsal and lumbosacral paravertebral muscles” as well as “reactive depression and secondary anxiety.” He said right shoulder symptoms developed shortly afterwards and worsened, and an MRI investigation performed “at that time” disclosed labral tears in the right shoulder.
[2] ARD, pp 56–57.
Dr Zaki considered that the appellant sustained injury to his neck, upper back and shoulders as a consequence of his lower back injury because he had to perform his usual activities of daily living. He expressed the view that “basically,” the muscle tear in the left shoulder could possibly have occurred as a result of lifting tyres and by performing his activities of daily living after the right shoulder surgery. He confirmed that surgery to the left shoulder was the best management option.
Dr Zaki’s clinical notes were in evidence, commencing from 7 September 2017.[3] Left shoulder symptoms were recorded on that first consultation and on 29 September 2017, 10 November 2017, 23 March 2018, 16 October 2021, 15 February 2022, and 19 June 2022. The symptoms were noted as worsening over that period. No reference was made as to any potential cause of the symptoms.
[3] ARD, pp 58–70.
Dr Zaki issued a Workcover Certificate of Capacity dated 1 March 2022, in which he recorded the injuries as “acute on chronic upper and lower back pain related to sprain and secondary spasm of cervicodorsal and lumbosacral paravertebral muscles bilaterally and exacerbation of reactive depression and secondary anxiety with recent exacerbated right shoulder pain highly related to an associated labral tears”. The Certificate noted that the injury had occurred on 11 November 2015 and the appellant was first seen at the practice in respect of the injury on 5 May 2017.[4]
[4] ARD, pp 14–16.
Dr Jonathan Herald
Dr Herald reported to Dr Zaki on 25 May 2022. He referred to the surgery to the right shoulder in 2018 and advised that the appellant’s left shoulder had been getting worse “over the last few year[s].” He said that the appellant had been concentrating on treatment for his neck and back, but he had reached a stage where he could no longer sleep at night. He said that he advised the appellant that the left shoulder symptoms were due to the rotator cuff tear which had progressed over time. He recommended an MRI scan and indicated that he would discuss the results with the appellant.[5]
[5] ARD, p 44.
Dr Herald reported again to Dr Zaki on 8 August 2022, noting that the appellant’s continuing pain was much worse in the left shoulder than in the right. He advised that the MRI scan disclosed high grade partial thickness tears in both shoulders. He recommended surgery in the form of a left shoulder arthroscopic rotator cuff repair.[6]
[6] ARD, p 45.
On 10 August 2022, Dr Herald forwarded to the respondent a quotation for the proposed surgery to the left shoulder totalling $6,577.50, and advised that there would be additional charges, including the fees for post-surgery change of dressings and the anaesthetist’s fees.[7]
[7] ARD, p 46.
Dr Herald provided a report to the appellant’s solicitors dated 17 February 2023.[8] He advised that he had treated the appellant from 25 June 2018 and had last seen him on 14 February 2023. He said that he had performed surgery on the right shoulder on 23 October 2018 and had recently forwarded a request to the respondent for approval to perform surgery on the left shoulder.
[8] ARD, pp 47–48.
Dr Herald provided a history of the injury, recording that the appellant experienced the development of neck, back, and right shoulder pain while lifting heavy tyres. He referred to the pathology in the neck and right shoulder, confirmed that the appellant had undergone lumbar surgery, and noted that surgery to the cervical spine had been recommended.
Dr Herald advised that an assessment of both shoulders disclosed restriction of range of motion. He diagnosed bilateral rotator cuff tears, as well as pathology in the cervical and lumbar spines.
Dr Herald considered that it appeared that the appellant suffered an overuse injury to his left shoulder, which gradually developed after the right shoulder surgery in 2018 and, on the history provided by the appellant, worsened over the years. Dr Herald expressed the view that he suspected that the appellant’s multiple injuries had caused an overuse injury to his left shoulder. He observed that the tear would progress unless surgery was performed.
Dr James Bodel, orthopaedic surgeon
Dr Bodel examined the appellant at the request of the appellant’s legal representatives. He provided a report dated 22 February 2022.[9] He recorded a history of the injury, including the deterioration of symptoms in the back and left shoulder over time and the subsequent treatment provided. He noted that the appellant attended Dr Mark Sheridan, neurosurgeon, who recommended a lumbar fusion, which did not proceed at that time, and consulted Dr Herald, who operated on the right shoulder on 23 October 2018. He further noted that Dr Michael Donnellan, neurosurgeon, performed a lumbar fusion on 6 August 2020, with some benefit to the appellant.
[9] ARD, pp 38–43.
Dr Bodel recorded the appellant’s ongoing complaints, noting that the appellant had “no residual pain in the left shoulder.”[10] He performed a physical examination, reporting a restricted range of movement of both shoulders with impingement in the right shoulder but not in the left.
[10] Dr Bodel’s report p 3, ARD, p 40.
Dr Bodel diagnosed the appellant as suffering a disc injury at the C5/6 level, rotator cuff pathology in both shoulders with the right shoulder being slightly worse than the left, and a disc injury at the lumbosacral junction of the lumbar spine associated with left leg pain. He concluded that the appellant’s employment duties were a substantial cause of the injuries and proceeded to provide his opinion as to the effect of the injuries and the possibility of the appellant returning to employment.
Dr Bodel observed that the appellant had been offered a cervical decompression and fusion which he considered was appropriate. He assessed the appellant’s whole person impairment, including 8% whole person impairment in respect of the right upper extremity (shoulder) and 2% in respect of the left shoulder, and said that the losses were wholly attributable to the injury.
Dr Peter Conrad, surgeon
Dr Conrad examined the appellant and provided a report dated 28 February 2023 at the request of the appellant’s legal representatives.[11] He noted that the appellant suffered an injury on 11 November 2015, which was the appellant’s first day of work with the respondent. He took the history that the appellant experienced pain from his neck, left shoulder and arm, and into the left leg, and there was also some pain in the right shoulder.
[11] ARD, pp 50–55.
Dr Conrad recorded that the appellant attempted to work for nine days but was unable to continue and consulted his general practitioner, Dr Zaki. He said that because the appellant was favouring his right arm, the appellant developed left shoulder symptoms, with the onset on or about 7 August 2019. Dr Conrad noted that Dr Zaki had recorded this in his clinical notes on that day.
Dr Conrad described the appellant’s present symptoms, which included pain and restriction in both shoulders, with the left shoulder symptoms being worse than the right shoulder. He recorded that the appellant denied any significant accidents prior to the injury in 2015. He performed a physical examination of the appellant and reviewed the radiological investigations, including the MRI scan of the left shoulder undertaken on 2 June 2022, which disclosed a partial tear of the subscapularis tendon.
Dr Conrad provided an opinion on causation. In respect of the left shoulder, Dr Conrad repeated his view that the appellant developed left shoulder symptoms as a result of favouring his right shoulder. He observed that Dr Zaki had recorded in the clinical note dated 23 March 2018 that the appellant had been experiencing left shoulder symptoms for one week. He opined that the need for surgery to the cervical spine and the left shoulder was related to the injury in 2015. He explained that the left shoulder injury reported in 2018 directly related to the injury because the appellant overused his left arm due to the inability to use his right arm. He added that the need for surgery was a direct result of the injury on 11 November 2015.
Dr Conrad proceeded to assess the appellant’s whole person impairment, which he calculated to be 33%. The assessment included 4% whole person impairment in respect of the left shoulder condition.
Dr Frank Machart, orthopaedic surgeon
Dr Machart provided a report dated 13 May 2022 at the request of the respondent.[12] He recorded a history of the injury, which he described as a sudden onset of pain similar to an electric shock, travelling from the neck into the left arm, and left side of the body, the left back and the left leg. He said that the appellant also complained to him of right shoulder and right arm symptoms. Dr Machart recorded that the appellant ceased work, consulted a doctor and had not returned to work since.
[12] ARD, pp 20–31.
Dr Machart noted that the appellant had undergone a repair of the rotator cuff in the right shoulder at the hands of Dr Herald on 23 October 2018, with no post-operative benefit. Dr Machart further noted that the appellant came under the care of Dr Donnellan, who performed surgery to the lower back in the form of an L5/S1 lumbar fusion on 6 October 2020, which also did not provide any post-operative benefit. He added that Dr Marc Coughlan, neurosurgeon, had also offered cervical surgery, but the appellant declined the surgery because of the poor outcome from the previous surgeries.
Dr Machart recorded the ongoing symptoms complained of by the appellant in his cervical spine, left shoulder and left arm, right shoulder and right arm, lower back and left leg, with numbness in both hands. He remarked that the arm and leg symptoms were not radicular in nature.
Dr Machart performed a physical examination of the appellant, reviewed the available radiological investigations and noted the assessments made by Dr Herald on 9 July 2018 and by Dr Bodel. He noted that Dr Bodel included an assessment of the left arm condition and had diagnosed left shoulder rotator cuff pathology, attributable to the injury.
Dr Machart concluded that the appellant did not suffer injury to the four areas of his body and the pathology was not consistent with the mechanism of such an injury. He considered that the appellant’s injury was not a substantial or serious injury, and his injury could best be described as a strain. He opined that, at the very most, it might be reasonable to consider that the injury caused an aggravation of pre-existing lumbar spondylolisthesis and a soft tissue injury to the right shoulder. He added that he did not consider that there were injuries to the other areas complained of, including any injury to the left shoulder, and said that it was not plausible that the appellant would suffer an injury to the left shoulder concurrently with the other pathologies.
Dr Machart observed that there was no evidence to support a suggestion that the left shoulder symptoms were causally related or consequential to the injury on 11 November 2015. He assessed the appellant’s whole person impairment as 23%, which was based on an assessment of the lumbar spine (21%) and the right upper extremity as 2%.
The Worker’s Injury Claim Form
The Worker’s Injury Claim Form, completed on 2 May 2016, indicated that the injury details were “Back injury/shoulder injury/neck injury,” the injury occurred on 11 November 2015 and the injury was reported on 3 May 2016.[13]
[13] ARD, pp 10–13.
THE LEGISLATION
Section 60(1) of the 1987 Act provides:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 60(5) of the 1987 Act provides for the costs of future treatment, as follows:
“The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
Section 9A of the 1987 Act requires that the worker’s employment was a substantial contributing factor to the injury, as follows:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
…
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
…”
THE MEMBER’S REASONS
The Member noted the issues for determination were whether the appellant suffered an injury to his left shoulder on 11 November 2015 and, if not, whether the appellant sustained a consequential condition in the left shoulder as a result of the incident on 11 November 2015. He noted that the appellant amended the injury details recorded in the ARD to add “in the alternative the [appellant] suffered a consequential injury to his left shoulder.”
The Member summarised the appellant’s statement evidence, as well as the evidence from Dr Herald, Dr Zaki’s report and clinical notes, the reports of Dr Conrad, Dr Bodel and Dr Machart and the contents of the Worker’s Injury Claim Form. He further summarised the submissions made by the parties.
The Member observed that the first difficulty in the appellant’s case was that, although the injury occurred on 11 November 2015, the first medical material in evidence did not commence until 7 September 2017, almost two years after the injury. He noted that Dr Zaki indicated that he had first seen the appellant in relation to the injury on 5 May 2017. He observed that the appellant’s legal representatives had limited the clinical notes adduced to the entries relevant to the left shoulder and the clinical note dated 5 May 2017 was not included. The Member acknowledged that caution must be taken when considering the content of clinical notes, however, the absence of that clinical note was just one of many inconsistencies.
The Member considered that he had no confidence in the report of Dr Zaki. He referred to Dr Zaki’s comment that the appellant “was diagnosed”, which made the Member unsure of who made the diagnosis. He added that Dr Zaki’s description of the injury as a “bilateral sprain and secondary spasm of the cervicodorsal and lumbosacral paravertebral muscles as well as reactive depression and secondary anxiety” was difficult to comprehend, and in any event did not refer at all to the left shoulder. He further noted that Dr Zaki appeared to say that the right shoulder symptoms developed shortly after the injury and worsened. The Member referred to Dr Zaki’s reference to an MRI scan being “performed at the time” and observed that the earliest MRI scan in evidence was undertaken on 28 June 2018.
The Member considered that Dr Zaki’s opinion that the left shoulder condition was related to so many conditions led him to the position where he could place little weight on the opinion. He referred to Dr Zaki’s use of the words “basically” and “possibly” which he said, “do not engender much confidence in what it was Dr Zaki was trying to say.”[14]
[14] Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2024] NSWPIC 409 (reasons), [96].
The Member noted that there was no allegation that the appellant’s left shoulder resulted from the ‘nature and conditions’ of the appellant’s employment, and in the context of the appellant only having worked for a matter of days before his injury, and the fact the appellant’s own evidence was that the injury occurred on the first day of employment, any such suggestion should be disregarded.
The Member added that, in any event, Dr Zaki’s opinion was “speculative because he was not treating the [appellant] during the relevant time between 11 November 2015 and 7 September 2017.”[15]
[15] Reasons, [96].
The Member considered that there were also issues with the reports of Dr Herald. He observed that Dr Herald was not consulted until 25 June 2018, which was almost three years after the incident and at that time there was no complaint of left shoulder symptoms. He said that the first history of left shoulder symptoms recorded by Dr Herald was on 25 May 2022, when Dr Herald noted that the left shoulder had been getting worse over the previous few years. The Member said that Dr Herald did not indicate when it was that he first became aware of the left shoulder problems, the appellant underwent an MRI scan of the right shoulder only on 28 June 2018, and the MRI scan of the left shoulder did not take place until 2 June 2022, which was a considerable time after the injury and the right shoulder surgery. The Member was of the view that it was difficult to accept a causal connection between the development of symptoms being referable to the injury or to the right shoulder surgery.
The Member said that the only support for Dr Herald’s opinion that the left shoulder symptoms resulted from the injury was the evidence of Dr Conrad. The Member referred to the history of injury recorded by Dr Conrad that, at the time of the injury, the appellant experienced severe pain in his neck extending down the left shoulder, and yet Dr Conrad emphatically stated that the appellant’s left shoulder impairment was as a result of overusing the left arm because of his inability to use the right arm.
The Member pointed to Dr Conrad’s reference to a clinical note from Dr Zaki in support of his opinion, which he said was on or about 7 August 2019. The Member observed that there was no such clinical note in evidence. He added that, given the care taken by the appellant’s legal representatives in submitting into evidence the relevant clinical notes from Dr Zaki, it follows that if there was such a note, the inference could be drawn that the evidence in the clinical note would not have assisted the appellant.
The Member further pointed out Dr Conrad’s reliance on the entry in Dr Zaki’s notes dated 23 March 2018 that the left shoulder pain had been present for one week. The Member observed that the clinical note did not mention right shoulder issues and did not relate the left shoulder pain to the favouring of the right shoulder. The Member added that Dr Conrad’s categorical opinion that the left shoulder condition resulted from overuse was inconsistent with the history recorded by Dr Conrad that the appellant injured his left shoulder at the time of his injury.
The Member said that Dr Conrad’s history that the appellant worked on for nine days was incorrect. He referred to the appellant’s counsel’s submission that the appellant had not worked again following the occurrence of injury and said that there was no evidence to support the history recorded by Dr Conrad. The Member concluded that it followed that as the appellant had not been at work since 15 November 2015, the overuse as a result of the right shoulder surgery in 2018 was in performing activities of daily living, which was a proposition that gave him great doubt.
The Member added that the appellant himself did not give evidence that the right shoulder had caused the injury. He noted that the appellant stated that the left shoulder was injured in the work incident, but the appellant was more concerned with his other injuries.
The Member referred to the evidence from Dr Bodel, noting that Dr Bodel did not suggest that the appellant had suffered a consequential condition. The Member said that the history recorded by Dr Bodel was that:
(a) the appellant suffered pain in the whole of the left side of the body, including the left shoulder, while lifting tyres;
(b) the appellant did not know that he was entitled to compensation, and his back and left shoulder deteriorated over time, and
(c) the appellant was referred to Dr Mark Sheridan.
The Member said that there was no report from Dr Sheridan, and there was no explanation as to its absence. He concluded that such a report would not assist the appellant’s case.
The Member added that, in his report dated 22 February 2022, Dr Bodel recorded that the appellant did not complain of any residual pain in the left shoulder.
The Member turned to the Worker’s Injury Claim Form. He referred to a submission from the respondent in which the respondent rhetorically queried “who was” the appellant’s treatment provider to whom he complained prior to Dr Zaki. The Member said that the Worker’s Injury Claim Form identified that the medical practitioner nominated as the appellant’s treating doctor was a Dr Sabri [Dr Sabri Hassam], who practised at a different medical centre [Fairfield Chase Medical & Dental Centre] to that of Dr Zaki. The Member considered that, having been nominated as the appellant’s treating doctor, Dr Sabri would have been consulted by the appellant in relation to the incident. The Member concluded that the failure to adduce any evidence from Dr Sabri, or to provide any explanation for its absence, was a major factor against the appellant’s case. He inferred that the evidence from Dr Sabri would not have assisted the appellant’s case.
The Member referred to the appellant’s counsel’s submission that the Member could rely upon the appellant’s statement evidence to “fill this evidentiary lacuna”.[16] The Member remarked that the appellant’s statement could not achieve that result in the context of the contradictory and inconsistent expert evidence.
[16] Reasons, [112].
The Member pointed out that the appellant’s statement was made in 2024, almost nine years after the injury. He said that he had no doubt that the appellant had done the best he could to honestly remember the events, however, “the effluxion of time carries with it a danger that subsequent events might well cause a person to innocently reconstruct his/her memory of those events. That is particularly so when that person has a vested interest in the outcome of proceedings …”.[17] He concluded that he could not rely on the appellant’s statement evidence or the histories the appellant provided to the medical practitioners. The Member said that the medical evidence was inconsistent with the appellant’s assertion that he injured his left shoulder in the incident but was more concerned about his other injuries. He added that there was no contemporaneous support for the assertion, which might have been supported by Dr Sabri.
[17] Reasons, [113].
The Member remarked that Dr Machart’s comment that injuring four different parts of the body by lifting a tyre was implausible had some merit. He said, however, that this case only concerned the left shoulder condition. The Member queried why the appellant was intending surgery to the left shoulder when he had declined surgery to the cervical spine because the two earlier surgeries were not of benefit. The Member said that in any event, he agreed with Dr Machart that there was no reliable evidence that the appellant injured his left shoulder on 11 November 2015. He added that he was also not persuaded that the appellant’s current left shoulder condition was consequential to either the injury or the surgery to the right shoulder in 2018. He concluded that the appellant had failed to satisfy his onus of proof.
The Certificate of Determination issued on 30 July 2024 records:
“The Commission determines:
1. The [appellant] did not injure his left shoulder on 11 November 2015.
2. The condition of the [appellant’s] left shoulder is not consequential to the events of 11 November 2015, nor the surgery to his right shoulder on 23 October 2018.
3. The claim for a declaration pursuant to s 60(5) of the 1987 Act is accordingly rejected.”
GROUNDS OF APPEAL
The appellant raises two grounds of appeal, asserting that the Member erred in fact and law by:
(a) Ground One: Misdirecting himself in relation to the medical evidence, and
(b) Ground Two: Misdirecting himself by incorrectly applying s 9A of the 1987 Act.
SUBMISSIONS
As to Ground One
The appellant’s submissions
The appellant points to the Member’s discussion of the evidence of Dr Zaki in the entry in the notes dated 23 March 2018. The Member observed that Dr Zaki made reference to left shoulder pain for one week, but there was no mention of right shoulder pain, much less any reference to the assertion that the pain resulted from favouring the right arm. The appellant quotes from the report of Dr Zaki dated 29 November 2023, in which Dr Zaki expressed the view that the appellant could possibly have suffered the onset of left shoulder symptoms as a consequence of lifting heavy tyres and by performing most of his activities of daily living while recovering from right shoulder surgery. The appellant submits that Dr Zaki was best placed to provide a history of the left shoulder injury, and did so.
The appellant refers to the Member’s conclusion that Dr Zaki’s evidence was speculative because he did not treat the appellant between 11 November 2015 and 7 September 2017. The appellant submits that in the context of the appellant’s limited understanding of workers compensation and his limited English skills, the delay in him reporting his injuries was adequately explained. The appellant says that there was no basis for drawing an inference that the earlier evidence would not have assisted the appellant, and in drawing that inference, the Member’s decision was thereby affected by error.
The appellant says that Dr Zaki’s clinical notes recorded complaints of left shoulder symptoms on 29 September 2017, 10 November 2017 and thereafter. The appellant refers to the Member’s reasoning that there was no clinical record that the left shoulder symptoms arose from overuse and that the only support for the appellant’s overuse of the left shoulder came from Dr Conrad. The appellant refers to the clinical entry on 27 November 2017, in which Dr Zaki noted that the appellant was experiencing back and neck pain with frequent use of his shoulder. The appellant asserts that the Member failed to take into account that the onset of symptoms in 2017 could constitute a consequential “injury.” The appellant contends that, in the context of the delay in making the claim, the Member’s failure to take that consideration into account amounts to error.
The appellant submits that:
“The appellant clearly complained of left shoulder pain on 29 September 2017 and 10 November 2017. Dr Zaki then, on 27 November 2017, noted that the [appellant] was suffering pain due to frequent use of his shoulder or unexpected neck movements. To add to this, the appellant underwent surgery to his right shoulder in 2018. The path of caution, with respect to the consequential injury, is sufficiently clear. The appellant submits that the Member’s reasoning is, with respect, flawed and amounts to an error of fact and law.”[18]
[18] Appellant’s submissions, [16].
The appellant refers to the Member’s observation that the appellant’s statement did not provide support for “an overuse injury”, however the Member proceeded to extract paragraphs from the appellant’s statement, in which the appellant said that:
(a) at the time of the injury, he experienced intense pain in the lower back radiating to the heels;
(b) the pain was on the left side of his body, including in his shoulders;
(c) he had never experienced that level of pain before;
(d) his focus was on his significant symptoms in his lower back, neck and shoulder;
(e) he attributed his left shoulder symptoms to radiating pain from his right shoulder, and
(f) the condition in his left shoulder deteriorated to the point in 2017 when it became unbearable, prompting him to seek treatment.[19]
[19] Appellant’s statement, [13]–[14].
The appellant submits that that evidence was unchallenged and says that the appellant was not required to express his evidence in a fashion that adopts the “legal definition of overuse” or the term “consequential condition”. The appellant asserts that the Member erred by failing to consider the matter in context, particularly in the context of the clinical notes, and by misapprehending the medical evidence. The appellant contends that the Member ignored the above evidence, which demonstrates that the appellant experienced overuse as a result of his right shoulder injury.
The appellant asserts that the Member failed to afford sufficient weight to the evidence of Dr Herald when Dr Herald had used the expression “over the last few years”. The appellant says that the approach taken by the Member by then relying on the evidence of Dr Conrad as the only support for a claim for the consequential condition ignored the above clinical records. The appellant submits that the evidence discloses that there was an increase in the appellant’s left shoulder symptoms shortly before the right shoulder surgery in 2018. The appellant contends that:
“It follows that the Member relied upon a misapprehension of the medical evidence, ignored Dr Herald’s opinion (the surgeon who operated on the right shoulder), and the ongoing reported symptoms of left shoulder pain throughout the clinical notes which are referred above.”[20]
[20] Appellant’s submissions, [22].
The respondent’s submissions
The respondent refers to s 352 of the 1998 Act and to the summary provided by Roche DP in Raulston v Toll Pty Ltd[21] in respect of what is required to establish error on the part of a member in respect of a factual determination. The respondent asserts that the appellant has failed to establish that the Member’s decision is wrong. The respondent contends that the Member did not misdirect himself in relation to the medical evidence or commit an error of law.
[21] [2011] NSWWCCPD 25 (Raulston).
The respondent refers to the transcript of proceedings and says that the appellant identifies the first contemporaneous complaint of left shoulder symptoms as the entry in the clinical notes on 7 September 2017. The respondent points to its submissions made at arbitration in which the respondent submitted that the appellant was pursuing a case that he suffered from a frank injury on 15 November 2015 but had not produced any evidence from a treatment provider prior to the entry on 7 September 2017. The respondent also points to the question posed by the respondent as to the absence of the earlier treating notes. The respondent contends that the absence of reference to the left shoulder until 2017 does not support a finding of a frank injury having occurred in the incident. The respondent submits that the medical evidence supports the Member’s finding of there being no frank injury to the left shoulder.
The respondent further asserts that, in respect of the claimed consequential condition in the left shoulder, it submitted to the Member that none of the evidence supports left shoulder pain as a coincidence of the right shoulder injury and none of the evidence in the clinical notes describes the left shoulder condition as having developed from overuse. The respondent asserts that the Member’s finding that the appellant did not suffer a consequential condition in his left shoulder was supported by that evidence.
The respondent points to the Member’s reasons in respect of the allegation of a consequential condition in the left shoulder as follows:
(a) the first investigations of the left shoulder were an x-ray and MRI scan that took place on 2 June 2022 which was “sufficiently removed” from the date of injury and the date of the right shoulder surgery, so that a temporal connection was too far removed;[22]
[22] Reasons, [100].
(b) Dr Conrad referred to a clinical entry on 7 August 2019, which was not in evidence, and in the light of the appellant’s attention to the provision of the relevant clinical entries, it followed that the inference could be drawn that the entry would not have assisted the appellant;[23]
(c) the entry on 23 March 2018 (referred to by Dr Conrad) recorded left shoulder symptoms for one week but did not refer to the right shoulder or mention that the pain was attributable to favouring the right shoulder;[24]
(d) Dr Conrad’s opinion was inconsistent in that he:
(i)took the history that in the incident on 11 November 2015, the appellant felt the onset of severe pain from his neck and into his left shoulder
(ii)firstly expressed the view that the appellant suffered a left shoulder injury in the incident on 11 November 2015, but
(iii)then “categorically” expressed the opinion that the left shoulder was caused by overuse.[25]
(e) the appellant had not worked since November 2015, so the nature of the overuse was not clear,[26] and
(f) the appellant himself did not suggest that the left shoulder condition resulted from the right shoulder injury.[27]
[23] Reasons, [102].
[24] Reasons, [103].
[25] Reasons, [104].
[26] Reasons, [105].
[27] Reasons, [106].
The respondent submits that the Member’s reasons were not erroneous.
As to Ground Two
The appellant’s submissions
The appellant refers to the Member’s agreement with Dr Machart’s opinion that there was no reliable evidence that the appellant injured his left shoulder in the incident in 2015. The appellant says that the evidence discussed under Ground One of the appeal, including the appellant’s statement evidence, is evidence that supports his case that he suffered an injury to the left shoulder as a result of the incident. He submits that the left shoulder symptoms could have occurred at the time of the injury or may have progressively developed over time as a consequence of his right shoulder injury. The appellant asserts that it is not uncommon for the cause to be difficult to ascertain, particularly where there are multiple causes, as discussed in Murphy v Allity Management Services Pty Ltd.[28] The appellant contends that the Member erred by failing to grapple with the fact that there can be multiple causes of an injury, and what is required in determining whether proposed surgery should be provided is that the need for surgery arose as a result of the injury. The appellant asserts that the Member erred in the application of Murphy and thus erred in the application of the relevant law.
[28] [2015] NSWWCCPD 49 (Murphy).
The appellant points to what he describes as his alternative argument that the appellant suffered a frank injury to the left shoulder in the incident. He says that, during the arbitration, the Member was taken through the matters that were relevant in order to ascertain whether the appellant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. The appellant observes that the Member appears to have taken a strict view of Dr Machart’s report, which is not appropriate when dealing with s 9A, if a consideration of s 9A is required. The appellant submits that, while expert evidence is informative, the matters that should be taken into account in assessing whether the employment was a substantial contributing factor are set out in the legislation.
The appellant says that in this case there are no non-employment related factors to explain his left shoulder condition and asserts that the Member’s dismissal of his claim on the basis that s 9A was not satisfied was erroneous because the Member did not address the factors set out in s 9A. The appellant observes that s 9A is not necessarily relevant in terms of assessing whether the relevant treatment is necessary.
The appellant refers to the Presidential decision of Kumar v Royal Comfort Bedding Pty Ltd,[29] and purports to quote a number of paragraphs from that decision, which he describes as “instructive.” The paragraphs quoted are in fact extracts from the judgment of Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates,[30] in which Kirby P discussed the question of causation of an injury.
[29] [2012] NSWWCCPD 8.
[30] (1994) 35 NSWLR 452 (Kooragang).
The appellant submits that the Member failed to apply the “test” set out in Kooragang, and asserts that, by applying a commonsense evaluation of the question of causation, liability is satisfied. The appellant says that the left shoulder condition arose from two potential sources, either a frank injury or a consequential “injury”, injuries can have multiple causes, and the discernment of the actual cause is not always necessary.
The appellant asserts that the Member erred in fact and law in:
(a) failing to consider the test in Kooragang;
(b) failing to apply Murphy;
(c) applying s 9A of the 1987 Act, and
(d) misconstruing the delay in making the claim by treating it as indicative of the appellant having not suffered an injury to his left side in the incident in 2015.
The appellant submits that the delay was explained.
The respondent’s submissions
The respondent repeats its submission to the Member that the appellant alleged a frank injury to the left shoulder from November 2015 but does not provide any evidence from a treating doctor prior to 7 September 2017, and that the absence of such evidence does not provide support for the notion that the appellant suffered a frank injury.
The respondent repeats its submissions already made at [78] above that the Member gave clear reasons for his conclusions and correctly applied s 9A of the 1987 Act.
The respondent contends that the Member did not err either in fact or in law.
THE RELIEF SOUGHT
The appellant seeks to have the decision set aside and an award made in his favour in relation to the claim for the proposed surgery.
The respondent submits that the Member’s Certificate of Determination should be confirmed.
CONSIDERATION
In this appeal, both grounds involve allegations of errors on the part of the Member, described by the appellant as errors of “fact and law”. The distinction between errors of fact and law was helpfully summarised by the Northern Territory Court of Appeal in Lee v MacMahon Contractors Pty Ltd.[31] The Court made the following observations in circumstances where an appeal to that Court lay only in respect of questions of law (citations omitted):
“(1) In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him [or her] and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies.
(2) Regardless of the trial judge’s reasons, if there is evidence which, if believed, would support the finding, there is no error of law.
(3) If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law.
(4) But, a finding of fact cannot be disturbed on the basis that it is ‘perverse’, or ‘against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence’. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound.
(5) The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
(6) If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law.
(7) It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts”.[32]
[31] [2018] NTCA 7 (Lee), [15].
[32]Lee, [15].
Whether the appellant’s left shoulder condition resulted from the incident in November 2015 is a factual determination. While s 352(5) of the 1998 Act provides for an appeal to a Presidential member from a decision of a member, the section limits the scope of the appeal to “a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing”.
As observed by Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic,[33] (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[34]
[33] [2008] NSWCA 175 (Najdovski).
[34] Najdovski, [22].
In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[35] Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing) also discussed the need to establish factual error. His Honour observed:
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[36]
[35] [2001] FCA 1833 (Branir).
[36] Branir, [28].
The application of those principles needs to be considered in the context of the Commission and the prescribed limits in s 352(5) on a Presidential member’s statutory power to intervene. In Raulston,[37] Roche DP summarised the applicable principles set out by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[38] 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 his [or her] 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.”
[37] Raulston, [19].
[38] (1966) 39 ALJR 505 (Whitely Muir).
Those principles are frequently applied in the Commission.
In StGeorge Leagues Club Ltd v Wretowska,[39] Roche DP referred to Spigelman CJ’s observation in Vines v Australian Securities and Investment Commission,[40] that where the relevant statutory test turns on the tribunal being satisfied about a matter involving a broad evaluative judgment, then the degree of restraint that the appeal tribunal should manifest should be that applicable to matters of discretion.[41]
[39] [2013] NSWWCCPD 64, [145]–[148].
[40] [2007] NSWCA 126 (Vines).
[41] Vines, [8].
The above observations are kept in mind in determining this appeal.
Ground One: The Member erred in fact and law by misdirecting himself in relation to the medical evidence
The appellant refers to the evidence of Dr Zaki in the form of the clinical entry dated 23 March 2018 and also to Dr Zaki’s report dated 29 November 2023. The appellant says that Dr Zaki was “best placed” to provide a history of the left shoulder condition. The appellant does not extrapolate that argument further.
The Member identified the deficiencies in the evidence of Dr Zaki, namely that:
(a) the first record of the appellant attending for a consultation with Dr Zaki was some two years after the injury;
(b) Dr Zaki’s evidence as to there being a consultation on 5 May 2017 was not supported by a clinical entry of that date, when all of the relevant clinical entries were said to be in evidence;
(c) In Dr Zaki’s report, Dr Zaki provided the history that the appellant suffered a sudden onset of lower back pain referred into the left leg. That is, there was no reference to the left shoulder symptoms;
(d) Dr Zaki’s diagnosis did not include the left shoulder;
(e) Dr Zaki’s expression that the appellant could “possibly” have injured his left shoulder lifting heavy tyres at work and when he was recovering from right shoulder surgery did not “engender confidence” in Dr Zaki’s opinion;
(f) a suggestion that the left shoulder symptoms were as a result of the nature and conditions of employment was not pleaded and was to be measured against the extremely short period the appellant worked for the respondent (on the appellant’s own evidence, one day);
(g) Dr Zaki appeared to simply accept the opinion of Dr Herald, and
(h) in any event, Dr Zaki did not treat the appellant from the date of the accident in 2011 until 7 September 2018, so that any opinion proffered by Dr Zaki as to what injuries were suffered in the incident were purely speculative.
Given that Dr Zaki did not initially treat the appellant and did not treat the appellant until 7 September 2017, I do not accept that Dr Zaki was “best placed” to provide an opinion, and the Member was not in error to conclude otherwise. The Member identified the general practitioner nominated in the Workers Injury Claim Form completed on 2 May 2016 as the appellant’s nominated treating doctor (Dr Sabri). As the respondent raised in submissions to the Member, there was no evidence from that medical practitioner. Its absence did not assist the Member in his examination of a causal connection between the injury on 11 November 2015 and the left shoulder, or the right shoulder injury and the development of the left shoulder condition. In those circumstances, it was open to the Member to draw the inference that any such evidence, which could have been called, would not have assisted the appellant.
The appellant seeks to rely upon the appellant’s poor English skills and lack of knowledge of workers compensation as a sufficient defence to any criticism that there was a lack of complaint to a medical practitioner. The Member was required to determine whether the left shoulder symptoms were referrable to the injury. In that quest, he was entitled to examine the medical records for any supportive clinical note as to when the symptoms arose and in what circumstance, particularly in the light of the appellant’s inadequate statement evidence as to the question of whether the symptoms were as a consequence of the right shoulder symptoms. It is difficult to see how the appellant’s lack of skills in English or his ignorance of workers compensation would impact on his ability to attend a medical practitioner about his injury, which he clearly did, at a time more temporally connected with the date of injury.
The appellant submits that there was no basis for the Member to draw the inference that the earlier evidence would not have assisted the appellant. For the above reasons, the submission is rejected.
The appellant refers to the Member’s reasoning that there was no clinical record of the left shoulder symptoms arising from overuse. The appellant points to the entry in Dr Zaki’s notes recorded on 27 November 2017.
The clinical note of that consultation was extensive.[42] Dr Zaki noted that the appellant had returned for a further check-up in relation to his upper and lower back and neck work-related injury. He recorded spasm of the upper trapezius and of the “verteb. m.s”. Symptoms relating to lower back pain were also recorded. He noted that the appellant was experiencing “upper back and neck pain on any freq[uent] use of his shoulder or unexpected sudden neck movements.” That was the only reference in the clinical note of any shoulder condition. If taken in the context of the notes of the prior consultation on 10 November 2017, in which the appellant complained of left shoulder symptoms over the “last several days worse a bit [lately]” and the appellant was “feeling increased left shoulder pain lately,[43] it can reasonably be assumed that the reference to shoulder pain in the notes recorded on 27 November 2017 was probably a reference to “left” shoulder symptoms. Even then, it is difficult to see how the clinical note is probative evidence of the appellant having suffered an injury to his left shoulder in the 2015 incident or developed symptoms in the left shoulder as a consequence of the right shoulder condition. The submission does not support the assertion that the Member erred either in fact or law by misdirecting himself in relation to the medical evidence.
[42] ARD, pp 63–64.
[43] ARD, pp 61–62.
I reject the notion put forward by the appellant that the reference to symptoms in the left shoulder at consultations on 29 September 2017, 10 November 2017 and 27 November 2017 was sufficient to establish that the “path of caution [sic, causation], with respect to the consequential injury, is sufficiently clear.”[44] Those entries do not provide any evidence of a causal connection between the right shoulder injury and the left shoulder condition and do not disclose that the Member’s reasoning was flawed.
[44] Appellant’s submissions, [16].
The appellant challenges the Member’s reasoning that the appellant’s statement did not provide support for “an overuse injury”. The appellant refers to various paragraphs from the appellant’s statement (summarised at [72] above) and submits that the appellant was not required to use the “legal definition” of the terms ‘overuse’ or ‘consequential condition.’ The appellant asserts that those paragraphs were unchallenged, they demonstrate that the appellant suffered overuse as a result of the right shoulder condition, and that the Member ignored that evidence.
While the evidence of the appellant was “unchallenged,” the Member gave reasons as to why he considered that the appellant’s evidence was unreliable. The evidence was limited to that of the appellant’s left arm symptoms and did not go so far as to mention that the appellant was performing more activities with his left arm because of his right arm injury. The only reference to the right shoulder was the appellant’s statement that he attributed his left shoulder symptoms to radiating pain from his right shoulder. That evidence is suggestive of another cause of the left arm symptoms, that is that it was referred pain from the right shoulder, not pleaded or addressed by medical evidence and not sufficient to establish any connection between the left shoulder condition because of favouring the right arm.
The assertion that the Member ignored the appellant’s evidence has no basis. The Member evaluated the appellant’s statement evidence at [113] of his reasons, explaining why he did not find the evidence reliable. In any event, the paragraphs relied upon by the appellant are not probative evidence of the appellant favouring his right shoulder, causing left shoulder symptoms.
The appellant asserts further error on the part of the Member by the Member failing to afford sufficient weight to the evidence of Dr Herald when Dr Herald used the phrase “over the years.” The Member dealt with the evidence from Dr Herald at [99]–[100] of his reasons. He reasoned that:
(a) Dr Herald was not consulted until 25 June 2018 (about three years after the accident) and at that time there was no mention of left shoulder symptoms;
(b) the first history of left shoulder symptoms recorded by Dr Herald was on 25 May 2022, and the history was that the appellant’s left shoulder symptoms were getting worse over the last few years;
(c) Dr Herald did not identify when he was first made aware of the left shoulder symptoms;
(d) the reference to the symptoms worsening “over the last few years” was unhelpful, and
(e) the first investigations of the left shoulder were not conducted until 2 June 2022, a significant time after the injury and the right shoulder surgery.
The appellant’s only complaint about the Member’s treatment of Dr Herald’s evidence was that the Member found the phrase “over the years” unhelpful. Even if the use of that phrase somehow led the Member from the path of reason, the appellant does not criticise the additional reasons the Member gave for placing little weight on the evidence of Dr Herald. The Member’s assessment of Dr Herald’s opinion on the basis of those reasons was open to him and the appellant’s assertion that the Member erred in the manner described is not made out.
The appellant submits that the Member erred by considering that the only support for Dr Herald’s view that the left shoulder symptoms arose as a consequence of overuse came from Dr Conrad. The appellant maintains that the clinical notes were supportive of the notion. As discussed, the clinical notes did not go so far as to record favouring of the right shoulder or overuse of the left shoulder before and after the right shoulder surgery. They simply recorded symptoms commencing in 2017, with no potential cause identified. The Member did not ignore the clinical records in coming to his conclusion that Dr Conrad’s evidence was the only medical support for Dr Herald’s opinion on causation.
The appellant raises no challenge against the Member’s treatment of the evidence of Dr Conrad or Dr Bodel.
The appellant’s assertion that the Member erred in fact or law by misapprehending the medical evidence, ignoring Dr Herald’s opinion and ignoring the references to symptoms in the left shoulder recorded in the clinical notes is not made out.
Ground Two: The Member erred in fact and law by misdirecting himself by incorrectly applying s 9A of the 1987 Act
A significant part of the appellant’s submissions made under this ground of appeal raise matters that do not fall within the ambit of the application, or misapplication of s 9A of the 1987 Act. Those submissions are discussed below.
Relevant to this ground of appeal, the appellant submits that in the arbitration, he made submissions to the Member in relation to the factors that were relevant to a determination that the employment was a substantial contributing factor to the injury. The appellant criticises the Member for taking a “strict approach” to Dr Machart’s opinion, which he says is not appropriate when dealing with s 9A. The appellant further complains that the Member failed to address the factors set out in s 9A, and took s 9A into account when it was not necessarily relevant to determining whether the treatment is necessary.
Firstly, s 9A is only relevant to an injury and not to a consequential condition. Secondly, the Member determined that the appellant had failed to establish that he suffered an injury to his left shoulder on 11 November 2015. In the absence of an injury, s 9A does not require consideration. It is therefore immaterial that the Member paid little attention to s 9A and did not consider the factors that are relevant. Any consideration of s 9A in those circumstances, even if erroneous, could not have affected the outcome. Section 352(5) requires that an appeal is limited to a determination of whether the decision appealed against “was or was not affected by any error”. Because the Member did not find in favour of the appellant in respect of the question of injury there was no error on the part of the Member in relation to s 9A of the 1987 Act.
The appellant’s remaining submissions do not fall within either Ground One or Ground Two of the identified appeal grounds, which is totally unsatisfactory. In any event I will address those submissions.
The appellant also asserts that the Member erred in:
(a) failing to consider Kooragang;
(b) failing to apply Murphy, and
(c) misconstruing the delay in making the claim by treating it as indicative of the appellant having not suffered an injury to his left side in the incident in 2015.
Paragraph [120(c)] is dealt with under Ground One. The Member did not find against the appellant because of the delay in reporting his symptoms. He determined the matter on the absence of evidence to support the connection between the left shoulder symptoms and the appellant’s employment and that there was no contemporaneous medical evidence which might have clarified the onset of symptoms.
The appellant asserts that the Member failed to take into account Kooragang. In this case, Kooragang does not assist the appellant. Each case must be determined on its own facts. As Kirby P explained, “[i]f the chain is unbroken and provides the relevant causative explanation …” it will be open to the Court to find in the worker’s favour. His Honour added that the question to be answered is a question of fact and:
“… to be determined on the basis of the evidence, including, where applicable, expert opinions. … a point will sometimes be reached where the link in the chain of causation becomes so attenuated that … it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection.”[45]
[45] Kooragang, 462E.
In this case, the Member was not satisfied that there was sufficient medical and factual evidence to explain the causal connection. There was thus a want of sufficient connection between the injury and the left shoulder injury or condition. The Member did not err in so concluding.
Lastly, the appellant asserts that, applying Murphy, an injury can have multiple causes, and the Member failed to grapple with that fact. The appellant says that there was no other competing cause for the left shoulder symptoms.
It is true that an injury can have competing causes, but in this case, there was insufficient probative evidence to establish any particular cause. The appellant’s submission that the Member erred by failing to consider Murphy is rejected.
CONCLUSION
The appellant’s allegations of error pertain solely to the Member’s factual findings. Applying the principles set out in Lee, for the appellant to succeed in establishing that the Member erred in law he must establish that there was no evidence which, if believed, would support the Member’s finding. As discussed above, there was evidence upon which the Member’s findings were based. The appellant cannot succeed in establishing an error of law.
In order to establish factual error on the part of the Member, the appellant must show that the Member overlooked or gave undue or too little weight to the evidence in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the Member was in my view so preponderant that the decision was wrong.[46] The conflict in the evidence relied upon by the Member provided a sound basis for his conclusion that the appellant had not made out his case. The appellant has failed to establish that the Member overlooked or afforded too little weight to material evidence and there was no preponderance of contrary evidence that discloses that the Member was wrong. Grounds One and Two of the appeal fail.
[46] Whiteley Muir.
The Member’s Certificate of Determination is therefore confirmed.
DECISION
The Member’s Certificate of Determination dated 30 July 2024 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
29 April 2025
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