Appeal Case Summaries

State of New South Wales v Kanajenahalli [2023] NSWPICPD 1

WORKERS COMPENSATION – Applications involving federal jurisdiction; Division 3.2 of the 2020 Act; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, Love v Attorney General (NSW) [1990] HCA 4; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10 considered and applied

Wood DP

18 January 2023

Facts

The respondent worker was employed by the appellant at Dubbo Base Hospital from 29 April 2019 as an Unaccredited Trainee in Paediatrics and Child Health, under a contract for 12 months arranged through the Australian Health Practitioner Regulation Agency (AHPRA).

The respondent ceased work on 11 June 2019 and resigned from his employment on 12 June 2019. He notified the appellant that he had suffered a psychological injury, described in the injury notification form as “burnout” and “depression”. The claim was denied by the appellant.

When the matter came to arbitration, the only issue in dispute was whether the respondent’s injury was caused by reasonable action taken by the employer in respect of performance appraisal or discipline, in accordance with s 11A of the 1987 Act. In a Certificate of Determination dated 10 January 2022, the Member determined that the respondent’s injury was not caused by reasonable action taken by the appellant in respect of performance appraisal or discipline. The appellant appealed the decision.

At the time the proceedings commenced in the Commission, the respondent resided in Queensland. Section 75(4) of the Commonwealth of Australia Constitution Act (the Constitution) vests original jurisdiction in all matters between “States, or between residents of different States, or between a State and a resident of another State.” Section 77 of the Constitution provides that Parliament has the power to invest any court of a State with federal jurisdiction. Section 39 of the Judiciary Act 1903 (Cth) vests Federal jurisdiction in a court of the State in matters between a State and a resident of another State. As a result, in order for the Commission to have jurisdiction to determine the dispute between the parties, it must be shown that the Commission is a court of the State and thus invested with the relevant federal jurisdiction, or that it was exercising administrative, rather than judicial, power in determining the dispute.

This issue was not raised in the proceedings before the Member or in the appeal. In order to ensure that the parties were afforded procedural fairness, the matter was listed for oral submissions on this point. The parties were asked to address the question of whether the dispute was between the State and a resident of another State, whether the Commission is considered to be a court, and whether the power exercised by the Member was administrative or judicial in nature.

Held: In the opinion of the Commission, the Member’s Certificate of Determination dated 10 January 2022 was determined without jurisdiction. These proceedings were stayed until 12 April 2023. The parties were given liberty to apply in respect of the Order staying the proceedings.

Consideration

Is the dispute a matter between a State and a resident of another state?

1. The parties were in agreement that this matter involved a dispute between a resident of Queensland and the State of New South Wales, which was clearly correct. ([36])

Is the Commission a court?

2. Both parties submitted that the Commission is not a court of the State and thus not vested with federal jurisdiction to determine the dispute. ([37])
3. The Workers Compensation Division of the Commission operates in much the same fashion as the former Workers Compensation Commission (WCC) and the members of the Division have similar roles, obligations and powers as the former arbitrators of the WCC. The status of the WCC was considered by the Court of Appeal in Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [2003] NSWCA 146 (Orellana-Fuentes). Ipp JA (Spigelman CJ and Handley JA agreeing) took into account factors that pointed to the WCC being a court, including that the President of the WCC was required to be a judge of a court of record, and the Deputy Presidents had to be either a judicial or former judicial officer or a legal practitioner of at least five years’ standing. Additionally, the WCC could compel parties to appear; could require persons to take an oath or affirmation and the orders of the WCC were capable of enforcement. His Honour observed, however, that many of the provisions of the 1998 Act pointed to the WCC not being a court. Those factors included that the arbitrators were appointed by the President, the arbitrators did not have to be legally qualified, the functions of the Registrar could be delegated, and the arbitrators could mediate a dispute and then proceed to hear and determine the dispute. Further, members of the WCC did not have security of tenure and medical disputes as to permanent impairment were dealt with by Approved Medical Specialists, who issued a Medical Assessment Certificate which was conclusively presumed to be correct. ([38])
4. Ipp JA observed that all of those matters were significantly inconsistent with the WCC being a court. Those functions and requirements are consistent with the operation of the Workers Compensation Division of the current Commission. Deputy President Wood saw no reason why those factors are not equally relevant to the operation of the Workers Compensation Division of the current Commission, and thus she was satisfied that the Commission is a not a court of the State. The Commission is therefore not invested with the judicial power to determine a dispute between the State and a resident of another State. ([39])

Is the determination of the dispute an exercise of judicial power?

5. Both parties asserted that the power exercised by the Member in determining the dispute was administrative, rather than judicial, in nature. The respondent submitted that because the Commission is not a court, the power exercised by the Member was administrative power. Deputy President Wood rejected that submission. In Orellana-Fuentes, Ipp JA (Spigelman CJ and Handley JA agreeing) said:

   “Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a court. There are many institutions that exercise judicial powers but are well recognised not to be courts.”

   Wood DP held that as those observations disclose, the fact that the Commission is not a court did not necessarily lead to the conclusion that all the decisions of the Commission must be administrative in nature. ([40]–[42])

6. The respondent also submitted that the inability of the Commission to enforce its own decisions is a factor leading to a determination that the Member’s decision was not an exercise of judicial power. The power to enforce an order has long been regarded as an essential element in the exercise of judicial power. ([43])

(R v Davison [1954] HCA 46 applied)

7. Section 59 of the 2020 Act provides that an amount of compensation ordered to be paid can be recovered by having the amount certified by the principal registrar and that certificate operates as a judgment which is enforceable in a court with jurisdiction to order payment of the amount certified. The respondent relied upon Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10, which did not assist the respondent’s argument. ([44]–[45])
8. Deputy President Wood held the respondent’s submission that the enforcement of the Commission’s decisions requires application to a court with appropriate monetary jurisdiction is indicative of the Member’s determination being an exercise of administrative power was not persuasive. ([46])
9. The respondent further submitted that there are restrictions upon what disputes may be brought to the Commission, which is different to the operation of a court that deals with matters at large, the rules of evidence do not apply, and leave is required to raise issues that are outside the notified dispute. The respondent pointed to no particular authority for the proposition that these matters are relevant to consider, although Deputy President Wood noted that the facts that the Commission is not bound by the rules of evidence, and its procedures are informal, can be an indication that the exercise of a function is administrative. Those matters are not, however, determinative. The Commission is still required to act in accordance with principles of procedural fairness. ([47])

(K-Generation Pty Ltd v Liquor Licensing Court[2009] HCA 4 applied)

10. The respondent relied on the authority of Searle v McGregor [2022] NSWCA 213 (Searle). That case involved a claim under the motor accidents legislation, dealt with in the Motor Accidents Division of the Commission. Deputy President Wood did not consider that Searle assisted the parties in respect of an assessment of whether the determination in this matter was an exercise of judicial power. The Court did not consider the nature of the power exercised in the Workers Compensation Division of the Commission, which resulted in enforceable orders awarding weekly compensation and treatment expenses under the workers compensation scheme and certainly did not consider the nature of the power to be exercised at the presidential level. ([51]–[52])
11. The judgment of Weber SC DCJ of the District Court in Rafiqul Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582, while not a decision on point in respect of the status of decisions in the Workers Compensation Division of the Commission, provides a useful summary of the indicia drawn from the various authorities dealing with the distinction between administrative and judicial powers. That is, that judicial power:

(a)     is exercised independently of the person against whom the proceedings are brought;

(b)     is binding and authoritative, whether or not it is subject to appeal;

(c)     determines existing rights and obligations according to law, thus quelling the controversy between the parties, and

(d)     must be exercised judicially by way of an “open and public enquiry (unless the subject matter necessitates an exception)” and the “observance of the rules of procedural fairness.” ([53])

12. In this case, the decision by the Member involved a consideration of the relevant legislation (s 11A of the 1987 Act) and the applicable authorities, an assessment of the available evidence and an independent evaluation of each parties’ case. Section 56 of the 2020 Act provides that the decision is final and binding, and an appeal pursuant to s 352 is limited to the question of whether the determination is or is not affected by error of fact, law or discretion. It operates to quell the controversy between the parties in respect of whether the appellant’s conduct was reasonable and whether the respondent is accordingly entitled to compensation. ([54])
13. An Anshun estoppel, in some circumstances, can apply to such determinations of the Commission. A member of the Commission is required to provide written reasons for the decision and decisions of the Commission are published, thus are open to public scrutiny. Importantly, the Member’s order that the appellant pay the respondent compensation is enforceable in accordance with s 59 of the 2020 Act. ([55])

(Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 applied)

14. While each of these matters would not, of themselves, be sufficient to show that the Member was exercising judicial power, considering them cumulatively led the Deputy President to be of the opinion that the Member was impermissibly exercising judicial power in determining the dispute between the parties. In Orellana-Fuentes Ipp JA (with Spigelman CJ and Handley JA agreeing) considered that “[u]ndoubtedly, the Commission does exercise judicial powers.” ([56])
15. All the more, Wood DP was of the opinion that a determination of the appeal would also involve an impermissible exercise of judicial power. The same indicia pointing to the exercise of judicial power that is relevant to a decision of a non-presidential member is equally applicable to a decision of a Presidential member. In addition, a Presidential member is required to be or have been a judicial officer or be an Australian lawyer of at least seven years’ standing, a decision of a Presidential member is authoritative, and an appeal from such a decision is only available in point of law. ([57])
16. The respondent indicated that if the Deputy President was of the opinion that the Member’s determination of the dispute and/or a determination of the appeal was an exercise of judicial power contrary to s 75 of the Constitution, then these proceedings should be stayed in order for him to pursue appropriate proceedings in another jurisdiction, either in the Supreme Court, or in the District Court in accordance with Division 3.2 of the 2020 Act. ([58])
17. Having formed the opinion that the Member was exercising judicial power in determining the matter, Deputy President Wood was of the view that it was appropriate to stay these proceedings for a period of 12 weeks from the date of issue of the opinion in order for the parties to take necessary steps to progress the matter in a different forum. It was also appropriate to provide each party with liberty to apply in the event that they are aggrieved by the order that the proceedings are stayed, including the period for which the stay will operate. ([59])

IPN Medical Centres Pty Ltd t/as Sonic Health Group v Kassabian [2023] NSWPICPD 2

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – whether an employer’s action taken in respect of discipline was reasonable – Department of Education & Training v Sinclair [2005] NSWCA 465 and Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 applied and considered

Perry ADP

19 January 2023

Facts

Between 26 May 2021 and 4 June 2021, while the respondent worker was employed by the appellant as a practice manager at the Edgecliff Medical Centre, the appellant took action against her with respect to discipline. As a result, she suffered a psychological injury.

The parties agreed the injury arose out of and in the course of the respondent’s employment, and that the injury was wholly or predominantly caused by actions of the appellant with respect to discipline within the meaning of s 11A(1) of the 1987 Act. In this context, the Member noted that the appellant asserted and the respondent worker disputed that these actions were reasonable.

The Member identified the actions with respect to discipline which were causative of the injury as the entirety of the disciplinary actions up to and including 4 June 2021; and that the appellant had to prove that those actions, considered as a whole, were reasonable. In the result, he found the appellant did not discharge that onus. An award for weekly compensation was made in favour of the worker. The employer appealed.

The issues on appeal were raised in the following grounds of appeal:

(a) the Member failed to find that the respondent acted reasonably (error of fact) (Ground 1), and

(b) the Member misdirected himself as to the legal principles relevant to a finding of reasonableness (error of law) (Ground 2).

Held: The Certificate of Determination dated 23 February 2022 was confirmed.

Ground 1

1. This ground asserted error of fact only and did not detail how or why error occurred. Two points were made about the confidential aspect of the investigation. Firstly, the employer had obligations to other staff members to prevent the workplace from being confrontational (and it was therefore necessary to require confidentiality). If this was put as an argument that the Member erred, there was little, if any, detail as to how that may be so, remembering that the Acting Deputy President had no authority to intervene with his decision unless the appellant established not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. ([94])

(Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138 applied)

2. Contrary to any implied argument to the contrary, the appellant had accepted that the Member did acknowledge the employer had obligations to other staff members to prevent the workplace from being confrontational. In the Acting Deputy President’s opinion, the Member addressed this in the reasons at [81]–[83] in a careful and logical way. He held the Member considered all of the evidence and looked at both sides of the argument. ([95]–[98])
3. The appellant submitted it was “necessary” there be a requirement of confidentiality from the employer’s perspective in order to protect the integrity of the process and the welfare of other workers. In the Acting Deputy President’s opinion, the analysis of the Member with respect to obligations to other staff members to prevent the workplace from being confrontational, by reference to the facts of each case, more than adequately dealt with this point. ([99])
4. Acting Deputy President Perry held that as to the second point, it was also not clear whether the appellant was submitting that the Member erred by approaching this question from the point of view of the action being unreasonable. But assuming this was so, it was patently clear that he did not. He expressly acknowledged the case law established that a finding that an employer had not proved a disciplinary action was reasonable was not a find it was unreasonable. ([102])
5. Ground 1 failed. The Acting Deputy President found no error in the fact-finding exercise undertaken by the Member. The Member’s conclusions and findings were open to him on the evidence and were not illogical. While Perry ADP took into account the appellant’s submissions about the strength of its evidence pointing towards the reasonableness of its actions, he concluded that the Member took such matters into account, and balanced them with factors militating against the appellant’s proposition “that the [appellant] acted reasonably”. ([106])

Ground 2

6. Although this ground asserted error of law, the appellant did not suggest the authorities were misrepresented. In context, it appeared the appellant accepted the Member correctly stated the legal principles and authorities. If the Acting Deputy President was wrong in drawing that inference, it was his opinion that the Member did do so. The appellant had, at least, not suggested otherwise. ([107])
7. It is often difficult to differentiate between error of law and fact, or mixed law and fact. Perry ADP had concerns as to whether the content of Ground 2 could truly be characterised as an error of law. Nevertheless, in all the circumstances, he dealt with the matter on both bases. ([111])

(Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, and Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 applied)

8. The Acting Deputy President held that the Member’s conclusions and findings were reasonably open to the Member. The Member’s reasons clearly showed that even though there was only one aspect of the process that was unsatisfactory, it was sufficient, given its nature and quality, to be actually unpersuaded that this aspect deprived the whole course of conduct from being characterised as “reasonable action with respect to discipline”. In Perry ADP’s opinion, the Member’s reasons in support of that conclusion were wholly unsurprising. But at the very least, this was an evaluative judgment, and his conclusion was reasonably open to him having regard to all the evidence. ([121])
9. If Ground 2 did properly involve a question of error of law and/or mixed fact and law, it was the Acting Deputy President’s opinion that the Member did not misdirect himself to or misapply the stated legal principles for those reasons. ([122])
10. Acting Deputy President Perry did not accept the submission that the Member misdirected himself as to the legal principles relevant to a finding of reasonableness. The Member’s fact finding was open on the evidence. There was no error in the fact-finding exercise. ([127], [133])
11. The Acting Deputy President concluded there was no error of law or fact involved in the Member’s decision. As to the law, he did not misdirect himself as to the legal principles relevant to a finding of reasonableness. To the extent it may be said that the Member had not clearly enough exposed the test he applied, Perry ADP was of the opinion that on a fair reading of his reasons, the Member adequately determined the questions of whether it the employer’s actions with respect to confidentiality were appropriate or necessary, and whether the whole process was, notwithstanding the “blemish”, “reasonable action”. Ground 2 failed. ([129]–[130], [134]–[135])

(Department of Education & Training v Sinclair [2005] NSWCA 465; Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255, and Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported applied)

Scevola v Damstra Technology Pty Ltd [2023] NSWPICPD 3

WORKERS COMPENSATION – principles applicable to the identification of error in a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered and applied – whether error in affording no weight to the opinion of a medical expert which was based on an incorrect history – Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505; Niko Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 discussed and applied

Wood DP

30 January 2023

Facts

The appellant worker was employed by the respondent as a business development manager. On 23 June 2020, the appellant was travelling on his motor scooter from a meeting with a client to his home office, which was his designated office during the COVID-19 lockdown. During the journey, he swerved to avoid a collision with a car that pulled in front of him. The appellant fell from his scooter, suffering injury to his left shoulder. The respondent ultimately accepted liability for the left shoulder.

The appellant subsequently made a claim for treatment expenses associated with right shoulder symptoms, which he alleged arose as a result of overusing his right shoulder in order to protect his left shoulder because of the pain and restrictions in his left shoulder. The treatment expenses included the costs of, and incidental to, proposed surgery to the right shoulder. The respondent denied liability in respect of the claim on the basis that the right shoulder condition was a pre-existing condition and that the proposed surgery was not reasonably necessary, firstly because the condition was not consequent upon the work-related injury, and secondly, because the proposed surgery was not likely to be effective.

The Member determined that he was not satisfied that the appellant had suffered an injury to his right shoulder or that the proposed surgery was reasonably necessary as a result of the left shoulder injury. The worker appealed.

The issues on appeal were whether the Member:

(a) failed to find that the evidence established that, following the accident on 23 June 2020, the appellant experienced the onset of significant and increased right shoulder symptoms, consistent with increased use of that limb, and the development of a consequential condition (Ground 1);

(b) failed to have regard to materially relevant contemporaneous treatment records of the appellant’s General Practitioner, Dr Masterson, which documented the development of a consequential condition affecting the right shoulder (Ground 2);

(c) failed to have regard to the materially relevant contemporaneous report of Dr Gupta, orthopaedic surgeon, dated 14 August 2020, which recorded that the appellant “recently has developed compensatory over use issues with the right shoulder”, and that “it was in fact the right shoulder that was more painful and weak” (Ground 3);

(d) reached a conclusion contrary to the preponderance of medical opinion, and unsupported by any medical evidence tendered by the respondent in relation to the issue of overuse (Ground 4);

(e) failed to find that the right shoulder surgery proposed by Dr Gupta was reasonably necessary as a result of the injury to the appellant’s left shoulder, and the development of a consequential condition affecting the left shoulder (Ground 5), and

(f) failed to order the respondent to pay for the costs of surgery proposed by Dr Gupta and associated treatment (Ground 6).

Held: The Member’s Certificate of Determination dated 30 March 2022 was confirmed.

Ground 1

1. The appellant submitted that the Member failed to acknowledge that prior to the 2020 injury, the symptoms in the right shoulder were “relatively benign” and “negligible” and did not require specialist or surgical intervention for over three and a half years. Deputy President Wood did not accept that the appellant’s symptoms could be so described. As the Member observed, the histories recorded in 2017 indicated that the appellant’s right shoulder symptoms became more prominent and troublesome during that time than the “negligible” symptoms recorded by Dr Bokor, shoulder and elbow orthopaedic surgeon, in 2016 and were the subject of medical review in 2018 and 2019. The Deputy President did not accept that during the three and a half years prior to the 2020 injury, the right shoulder symptoms could be described as “benign” or “negligible”. ([110]–[113])
2. The appellant asserted that there was no other evidence-based proposition that would provide an alternate basis to explain the increase in the right shoulder condition at that time than that the right shoulder symptoms increased because of overuse. Deputy President Wood observed that, as the respondent submitted, the onus rested upon the appellant to establish the case presented and it was not for the Member to identify some other known cause of the condition in circumstances where the medical opinion in favour of the case presented by the appellant was based on an inaccurate history. ([114])
3. The appellant submitted that the presence of pre-existing right shoulder pathology would not preclude an aggravation of that pathology from overuse of that arm because of the left shoulder injury. That was a common-sense proposition, however, the question to be determined was a question of causation which was dependent upon acceptable medical evidence supporting the causal connection. Wood DP accepted the respondent’s submission that the Member was not required to find another cause of the condition in order to reject the appellant’s case. ([118]–[119])
4. In the context of the significant pre-existing pathology and the history of waxing and waning of right shoulder symptoms prior to 2020, the fact that the right shoulder symptoms worsened after the 2020 injury to the point where surgery was proposed is of itself insufficient to discharge the appellant’s onus. The proposition put forward by the appellant was dependent upon acceptable, evidence based medical opinion. It is for the tribunal of fact to assess whether the disparity between the history recorded and the proved facts is of significance. ([123])

(Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505; Niko Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 applied)

5. The Member considered that the assumptions of both Dr Gupta and Dr Bodel (orthopaedic surgeon qualified by the appellant) were so inconsistent with the known facts that the opinions were not provided in a fair climate. On a proper reading of those opinions and consideration of the prior history, the Member’s conclusion was not only undoubtedly open to the Member but was correct. ([124])
6. The appellant asserted that the Member fell into error by failing to find that the evidence established that the onset of the appellant’s significant symptoms was consistent with increased use of the right arm and thus consequent upon the 2020 injury. The appellant had failed to show error on the part of the Member in rejecting the appellant’s evidence as to causation. This ground of appeal therefore failed. ([126])

Ground 2

7. The appellant asserted that the Member disregarded the entries made by Dr Masterson in his clinical notes on 8 September 2020, 26 September 2020 and 30 September 2020, which was evidence that was relevant and ought to have been considered. Wood DP held that Dr Masterson did not provide an opinion as to whether the right shoulder symptoms were attributable to the 2020 injury, which was the issue the Member was required to determine. While the entry on 8 September 2020 was the first reference to right shoulder symptoms in that year, the history provided to the doctor was that the appellant attributed the onset to shaving his head with his right arm and said he felt a “click.” The Member adequately dealt with the notion that this event may have been evidence of the necessary causal connection. ([128]–[129])
8. In the context of the appellant having significant pre-existing limitations in function of his left arm, recorded by Dr Masterson on 6 August 2019 to be 30% of full function, and the ongoing active treatment to the left arm in 2019 and 2020, a satisfactory medical opinion as to the causal link to the 2020 injury was necessary. In the absence of acceptable opinion evidence, the entries were of insufficient evidentiary value to assist the Member in resolving the issue of whether those doctors who did provide opinions did so on the basis of an adequate history. ([134])
9. Deputy President Wood held that in circumstances where the clinical entries were not of themselves conclusive, if the Member failed to take into account those clinical entries, such error could not have infected the Member’s ultimate conclusion. In order to disturb the Member’s determination, the error must be one upon which the decision depends. ([135])

(Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, and Walshe v Prest [2005] NSWCA 333 applied)

10. The appellant submitted that the report of Dr Gupta dated 14 August 2020 and the clinical notes of Dr Masterson recorded in September 2020 were together sufficient to discharge his onus of proof. That submission ignored the fact that Dr Gupta’s opinion was based on an incorrect history and the clinical notes were of limited assistance. ([136])
11. The appellant also submitted that the Member’s decision was misconceived because the Member focused on the appellant’s pre-existing symptoms. He asserted that he did not suggest that he had no prior problems. The question was not whether the appellant’s evidence disclosed the pre-existing problems, but was whether the appellant provided to the medical experts, or the medical experts based their opinions on, a reasonably accurate history of those pre-existing problems. The appellant further submitted that the Member failed to give consideration to whether the appellant suffered an aggravation of an underlying condition and that the Member misdirected himself. Once again, in the absence of a medical opinion that was arrived at in a “fair climate,” there was no acceptable evidence to support any such allegation, so that the Member was unable to proceed to determine such an aggravation occurred. The appellant’s submissions failed to disclose error on the part of the Member of the kind required to show that the Member ignored material evidence. Ground 2 failed. ([137]–[139])

Ground 3

12. The appellant asserted that the Member did not refer to the report of Dr Gupta dated 14 August 2020. The Deputy President held that the Member did not fail to have regard to or ignore the evidence of Dr Gupta. He referred to the respondent’s submission that Dr Gupta did not have a sufficiently accurate history upon which his opinion was based. The Member concluded that Dr Gupta did not have an adequate history of the state of the appellant’s shoulders between 2016 and 2019 and the inadequacy of the history undermined his opinion that the appellant’s shoulder symptoms were referrable to the 2020 injury. It was abundantly clear that the Member reviewed the overall evidence of Dr Gupta in some detail and with accuracy, even though he did not specifically attribute the evidence to any particular report. ([140]–[142])
13. The appellant did not make any persuasive submission that the Member’s failure to refer to those matters impacts on the veracity of the Member’s findings that:

(a) Dr Gupta was initially not aware of the appellant’s pre-existing symptoms;

(b) following a review of the report of Dr Rimmer (orthopaedic surgeon qualified by the respondent), Dr Gupta was clearly reliant upon the incorrect history that the appellant had no previous clinical concerns with his shoulders, and

(c) the opinions expressed by Dr Gupta were based upon an incorrect history. ([144])

14. Wood DP concluded that the Member was clearly aware of the time of the onset of right shoulder symptoms. The time of onset of the symptoms was not determinative of the causal connection. Regardless of when the appellant complained of right shoulder symptoms, the rejection of Dr Gupta’s opinion as to the connection between the onset of those symptoms and the 2020 injury was reasonably open to the Member. Ground 3 of the appeal failed. ([145])

Ground 4

15. The appellant submitted that there was no medical opinion to support the Member’s determination that the appellant did not suffer from a consequential condition of his right shoulder as a result of the left shoulder injury. That was undoubtedly correct, but the Member did not determine the matter on the basis of a competition between medical experts. He determined that there was an absence of acceptable medical opinion and thus the appellant had not made out his case. In circumstances where there was no acceptable opinion sufficient to prove the appellant’s case, it was not necessary for there to be medical opinion that contradicted the assertion put forward by the appellant that his right shoulder symptoms were a consequence of the 2020 injury. ([146])
16. The appellant asserted that the pre-existing symptoms were not relevant to a determination of whether he suffered an aggravation of the pre-existing condition. Again, the appellant missed the point. In this case, the presence of pre-existing symptoms was very relevant. The Member did not proceed to a determination that there was an aggravation because, in the absence of acceptable medical opinion, he determined that the appellant had not made out his case. Thus, Dr Bodel’s opinion that the pre-existing condition was aggravated was unacceptable. ([147])
17. The appellant submitted that the Member failed to engage in a proper evaluation of the evidence. Deputy President Wood held that the Member’s reasons disclosed that he engaged in an extensive evaluation of all of the medical evidence and provided sound reasons for rejecting that evidence. The appellant had failed to identify “a preponderance” of acceptable evidence, or any acceptable medical evidence, that was persuasively in his favour. Ground 4 failed. ([148]–[149])

Grounds 5 and 6

18. Both Grounds 5 and 6 were dependent upon a finding that the Member erred in his determination that the appellant had not made out his case. There had been no error established and, as a consequence, these two grounds of appeal were unfounded and were dismissed. ([150])