PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The applicant commenced these proceedings by way of Application to Resolve a Dispute (ARD) lodged on 21 March 2025. The respondent lodged a Reply to ARD (Reply) on

11 April 2025. 2. At a conciliation/arbitration hearing, conducted by MS Teams on 12 June 2025, Mr William Carney, counsel, appeared on behalf of the applicant, instructed by PK Simpson & Co Lawyers. Mr Daniel Stiles, counsel, appeared on behalf of the respondent, instructed by Lee Legal Group Lawyers. 3. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. At the hearing, the respondent's counsel did not press a dispute nor make any submissions in relation to s 261 of the 1998 Act.
2. The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained injury, arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, pursuant to ss 4(a) and 9A of the 1987 Act;

(b) whether medical or related treatment is reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act, and

(c) whether the applicant's claim should be precluded by operation of s 254 of the 1998 Act.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;

(b) Reply and attached documents, and

(c) Application to Lodge Additional Documents (ALAD), lodged by the insurer on

12 June 2025 and attached documents.

1. No application for cross-examination was made and no oral evidence was given.

1. The applicant gave evidence by way of statements dated 22 November 2023 and

(a) the applicant commenced working for the respondent as a packer from

1 October 2022 for a period of about six months;

(b) the applicant did not have a pre-employment medical before commencing employment with the respondent. The applicant did not have any ongoing training;

(c) when the applicant commenced employment with the respondent, he was given a small induction which was to say that there was no drugs or alcohol on the boat;

(d) the applicant did not receive any warnings in relation to his work;

(e) the applicant's employment required him to go out to sea on fishing trawlers for a number of days and nights at a time, and to shovel fish, pick up boxes of fish, rope off and tie the boat up and clean the boat. The applicant's employment required the frequent, strenuous and stressful use of his body, particularly his right hand lifting heavy boxes of fish;

(f) the applicant sustained injury to his right bicep tendon as a result of the nature and conditions of his employment;

(g) on a number of occasions, likely about six times, the applicant told his boss and skipper, Paul Bagnardo, and a deckhand/supervisor, Shane (who subsequently died), that he had pain from lifting heavy boxes of fish, however they instructed him to "keep working". Mr Bagnardo came out to sea every second trip and when he wasn't there, the skipper was in charge;

(h) on or about 20 May 2023, the applicant was working on a boat out at sea for two nights with the skipper, Pat, and also Shane and a new employee, Greg.

Mr Bagnardo was not on the boat. At about 3.00pm, the applicant was lifting boxes of fish by himself and throwing them on the table. While he was lifting, he felt pain in his right bicep. He stopped working and told everyone on the boat. The skipper, Pat, told him not to worry and gave him some Nurofen, which provided some pain relief. Pat told the applicant to keep working and not stop. The applicant continued lifting boxes of fish until the next sunrise. During that time, the applicant felt a fair bit of pain but had to keep on lifting boxes as he didn't want to lose his job. Pat told him to hurry up. Nobody else helped the applicant lift the boxes. The applicant then helped to pack up all the equipment, wash down the deck and get all the fish off the deck. There were no work breaks until the boat returned to the wharf. When the boat returned to the wharf, the applicant told Mr Bagnardo that his arm was sore and Mr Bagnardo said it doesn't matter. The applicant asked Mr Bagnardo if he could have the following day off work, and Mr Bagnardo agreed;

(i) the following day, Mr Bagnardo told the applicant that he needed him to work. The applicant said that he needed a day off work because his arm was no good. Mr Bagnardo responded with words to the effect of "If you don't come in, then don't bother going back on my boat again, mate, I need you here now" and "Don't bother to ever come back on my boat again";

(j) the following day, the applicant attended Bankstown Hospital regarding his right arm. A doctor looked at his arm and told him there was nothing wrong with it not to worry about it. The applicant was shocked and left after that;

(k) because of what the doctor said, the applicant thought his right bicep tendon would improve with rest;

(l) however the applicant's right arm did not improve;

(m) about a week later, the applicant attended the Pacific Medical Centre in Blacktown regarding his right arm. The applicant underwent an ultrasound and was advised that his right bicep was torn. The applicant was given a referral to a surgeon and a Certificate of Capacity which stated that he was unable to work;

(n) more recently, the applicant underwent an MRI right arm which showed that his right bicep is torn;

(o) the applicant had no injury or impairment prior to working with the respondent;

(p) as a result of the injury, the applicant has suffered pain, distress, anxiety, loss of earning capacity and has been unable to particulate in normal employment, social, domestic and recreational activities that he previously enjoyed, and

(q) the applicant has been advised that he needs to undergo surgery to repair his right bicep tendon. He wishes to undergo such surgery so that he can get back to work.

Paul Bagnato, director of the respondent and boat skipper

1. In a statement dated 25 November 2023, Mr Bagnato stated:

(a) the applicant worked for the respondent for about five to six months and worked about 20 boat trips;

(b) each boat trip was for about 20 to 24 hours on average, and during that time the deckhands worked between six to eight hours, resting in between each casting of the nets;

(c) the first time that Mr Bagnato became aware of an injury claimed by the applicant was some three or four months after the applicant ceased employment, when he was contacted by a hospital and the insurer;

(d) when the applicant initially approached Mr Bagnato for work, Mr Bagnato told him that there was a policy of no drugs and alcohol;

(e) the applicant did not undergo a pre-employment medical check;

(f) Mr Brancatisano is the boat skipper when Mr Bagnato is not working on the boat;

(g) he denied that the applicant injured himself when working for the respondent on the boat;

(h) Mr Bagnato was not on the boat on 20 May 2023;

(i) he is not aware of any incident on the boat when the applicant reported injury to Mr Brancatisano who gave him some Nurofen and told him to keep working;

(j) he does not recall the applicant ever telling him that the applicant had a sore arm or that he needed a day off;

(k) he denied that the following day the applicant called and requested a day off working because his arm was injured;

(l) he denied that the applicant's employment was terminated because of the alleged injury, and

(m) around that time, Mr Bagnato became aware that the applicant had been found using drugs and that Mr Brancatisano had told him never to come back to work. The applicant had been sleeping on a boat whilst he was working for the respondent. However, when Mr Bagnato found out that the applicant had been using drugs, he had another worker tell the applicant he needed to get off the boat where he was sleeping and go.

1. In a statement dated 24 November 2023, Mr Brancatisano stated:

(a) the applicant appeared to be under the influence when he initially spoke with

Mr Brancatisano regarding work as a deckhand and Mr Brancatisano told him that the respondent had a drug and alcohol free policy. Mr Brancatisano gave the applicant a job because he felt sorry for him;

(b) on a number of occasions during his employment as a deckhand,

Mr Brancatisano found the applicant taking drugs at work. Mr Brancatisano gave the applicant warnings but ultimately allowed the applicant to continue working;

(c) there was always two or three deckhands working together with the applicant and the applicant did not work longer than six to eight hours;

(d) deckhands were required to put nets in and out of the water, sort fish, ice fish and weigh fish and clean the boat after each trip and they rest when they are not working;

(e) the plastic fish storage boxes weigh up to 25kg when filled with fish;

(f) he does not recall working with the applicant on 20 May 2023 with two other deckhands Shane and Greg Haines;

(g) he denied that the applicant would ever have been doing lifting on his own;

(h) he denied that the applicant was ever saw the applicant injured at work;

(i) he denied that the applicant ever reported injuring himself;

(j) he denied that he ever gave the applicant medication for pain relief, and

(k) he denied that the applicant reported the injury to Mr Bagnato on return to the wharf.

1. An investigation report dated 6 December 2023 included various factual statements referred to above.

1. In a report dated 17 December 2024, Dr Qamar stated:

(a) the applicant was initially seen at Pacific Medical Centre on 30 June 2023;

(b) the applicant has a diagnosis of high-grade post-traumatic biceps tendon tear;

(c) the applicant reported a history that the biceps pain started at work;

(d) the applicant has received treatment for his biceps pain in the form of rest, pain relief medication, ultrasound of right arm and referral to an orthopaedic specialist;

(e) the applicant's prognosis is uncertain at this stage as he needs follow up and review by an orthopaedic surgeon, and

(f) the applicant has been certified to have no capacity to work.

1. In a report dated 6 November 2023, Dr Cheriachan stated:

(a) the applicant presented with a right biceps injury and reported a history of pain, stiffness and deformity over his right arm after he injured it lifting boxes six months previously, noting that the applicant worked on a fishing trawler;

(b) on examination, the applicant had an obvious Popeye deformity and tenderness over the biceps muscle;

(c) an MRI of the right shoulder showed a long-head biceps rupture but no rotator cuff tear;

(d) treatment options included operative management, and

(e) the applicant was accepting risks and consented to surgery.

1. An MRI of the right shoulder on 12 October 2023 was reported to show attenuated internal and extracapsular biceps tendon fibres.

1. Clinical records of the Blacktown Hospital recorded that on the evening of 23 and

24 June 2023, the applicant presented to the Emergency Department with pain to his right upper arm and reported that he had experienced the pain for the previous three weeks after he had been heavy lifting at work. No obvious deformity was noted at triage. However, a physiotherapist noted a right arm bulge deformity, which the applicant reported he had sustained one month prior when lifting heavy boxes whilst working on fishing boats. The physiotherapist recorded a diagnosis of likely biceps tear. The physiotherapist noted that the applicant sought to lodge a workers' compensation claim in relation to the injury. 2. Clinical records of the Pacific Medical & Dental Centre Blacktown and Dr Jalal Qamar included various records and referrals in relation to the injury. It appears from the records that the applicant initially presented on 30 June 2023, with a hurt right arm which he reported to have occurred on 21 May 2023 when lifting and shovelling at work. On 20 July 2023, it was recorded that the applicant had a high-grade post-traumatic biceps tendon tear of the right arm and that he reported that he worked as a fisherman on a fishing trawler. On

11 August 2023, it was recorded that the applicant reported that he injured his right arm lifting a heavy box of fish at work on 21 May 2023. 3. Clinical records of Dr Deepak Cheriachen included a fee estimate for tenodesis of biceps by open or arthroscopic means performed as an independent procedure in the amount of $1,635.

Certificates of Capacity and medical certificates

1. The evidence includes various Certificates of Capacity and medical certificates issued in relation to the injury.

Dr Lahann Wijenayake, orthopaedic surgeon, independent medical expert qualified by the applicant

1. In a report dated 27 September 2024, Dr Wijenayake stated:

(a) in relation to mechanism of injury, the applicant reported a history that he developed pain in his right arm on 20 May 2023 when he was working on a fishing boat at sea as he was lifting boxes filled with fish and weighing between 20 to 30kg. The applicant reported that he reported the pain to his supervisor but was instructed to take pain relief and continue working and to clean the boat upon its arrival at the wharf. The applicant reported that the pain intensified significantly that afternoon and continued, and upon removing his shirt, he observed a clear deformity in the bicep region;

(b) the applicant reported that he presented to Bankstown Hospital approximately a week after the incident but no treatment or follow-up was organised, however he subsequently consulted his general practitioner who arranged an ultrasound, diagnosed a biceps tendon rupture and referred him to orthopaedic surgeon

Dr Deepak Cheriachan;

(c) the applicant reported ongoing weakness in his right arm and difficulties with lifting;

(d) the applicant reported no previous right arm injuries nor pain;

(e) on examination, Dr Wijenayake noted that the applicant had a clearly noticeable deformity of his right arm with distal migration of the biceps muscle or "Popeye sign", weakness in flexion of his elbow and noticeable weakness in supination and sustained supination of his right arm compared to his left. I note that

Dr Wijenayake's reported observations on examination were consistent with photographs of the applicant's right arm which were included in the report;

(f) an MRI of the right shoulder on 12 October 2023, which Dr Wijenayake personally reviewed, showed the long head of the biceps absent from the biceps groove. Dr Wijenayake noted that the MRI scan did not cover the extent of the injury as it stopped at the proximal humerus whereas the biceps is retracted into the distal humerus. Dr Wijenayake stated that in his opinion, the MRI confirmed the rupture of the long head of biceps;

(g) Dr Wijenayake diagnosed a proximal biceps tendon rupture due to the workplace incident on 20 May 2023;

(h) Dr Wijenayake stated that the reported mechanism of injury in the form of a job that requires continuous lifting of boxes weighing 20 to 30kg fits with biceps tendon rupture and the applicant's employment with the respondent was likely the significant contributor to his biceps tendon rupture;

(i) the applicant would benefit from the proposed surgical management for his right biceps tendon rupture, which is likely to result in significant improvement of symptoms, particularly weakness;

(j) the applicant is currently fit only for non-manual duties and has been totally incapacitated from performing his pre-injury duties due to the weakness in his right arm. However with appropriate treatment in the form of surgical intervention, in the future the applicant could return to his pre-injury duties;

(k) the surgery would cost approximately $18,000 to $20,000, and

(l) the surgery is reasonably necessary and the longer it is delayed, the more difficulty the surgery will be for the treating surgeon.

Associate Professor Paul Miniter, orthopaedic surgeon, independent medical expert qualified by the respondent

1. In a report dated 15 January 2024, Associate Professor Miniter stated:

(a) in relation to mechanism of injury, the applicant reported a history that he felt discomfort in his right arm when working on a fishing trawler and, when he got back to shore, the applicant took off his long-sleeve shirt and identified that there was an abnormality of his right biceps. The applicant reported that he had no prior issues with his right arm;

(b) on examination, Associate Professor Miniter noted an abnormality of the contour of the right shoulder such that the biceps tendon appeared to have a Popeye appearance although the tendon associated with the remaining portion of the biceps was intact and could be followed proximally into the bicipital groove. The applicant had excellent power of flexion of the right elbow. The applicant expressed concern as to the appearance of his right arm;

(c) an MRI of the right shoulder does not extend into the arm itself, but suggests attenuation of the long head of biceps with the joint itself, although the short head appears to be intact;

(d) Associate Professor Miniter diagnosed a contour abnormality of the right biceps, noting that the biceps tendon itself appeared to be intact, but the muscle is retracted distally. Associate Professor Miniter expressed the opinion that it did not appear clinically that the applicant had sustained any acute rupture of the long head of biceps;

(e) Associate Professor Miniter recommended a repeat MRI scan which included the distal aspect of the arm to determine the exact nature of the pathology;

(f) Associate Professor Miniter stated that there were inconsistencies and he stated that the failure of the applicant to return to work in any capacity did not have a clear explanation and that there was little or no disability associated with proximal biceps ruptures. Associate Professor Miniter stated that the applicant had significant mental health issues which were clouding the matter as it presented;

(g) Associate Professor Miniter stated that the mechanism of injury was not clear and he found it difficult to confirm that the applicant had a work injury. Associate Professor Miniter considered it was unlikely that the applicant's employment was a significant contributor to the condition and he suspected that it was a pre-existing problem, and

(h) Associate Professor Miniter opined that surgery is not required as the applicant has normal power of muscle strength in his right arm and after such a period of time reconstruction would not be beneficial. Associate Professor Miniter opined that the applicant's condition would be best managed in a non-operative manner.

1. Counsel's submissions were made orally and recorded.

1. Mr Carney's submissions on behalf of the applicant may be summarised as follows:

(a) Mr Carney referred to various parts of the applicant's evidence, the treating medical evidence and the medico-legal evidence;

(b) Mr Carney submitted that the evidence demonstrates that the applicant sustained a frank injury pursuant to ss 4(a) and 9A of the 1987 Act from the nature and conditions of the applicant's employment with the respondent,

(c) Mr Carney submitted that the evidence demonstrates that the surgery is reasonably necessary as a result of the injury;

(d) on that basis, Mr Carney submitted that the Commission ought to find that the applicant sustained injury in the course of his employment with the respondent;

(e) Mr Carney submitted that in all the circumstances, the Commission should not be satisfied that s 254 of the 1998 Act should preclude the applicant's claim for compensation, and

(f) Mr Carney submitted that an award ought to be made in the applicant's favour for payment of medical expenses of and incidental to the proposed surgery.

1. Mr Stiles' submissions on behalf of the applicant may be summarised as follows:

(a) Mr Stiles referred to various parts of the applicant's evidence, the treating medical evidence and the medico-legal evidence;

(b) Mr Stiles submitted that having regard to the evidence, the Commission should not be satisfied on the balance of probability that the applicant sustained an injury in accordance with ss 4 and 9A of the 1987 Act;

(c) Mr Carney submitted that in all the circumstances, the Commission should be satisfied that s 254 of the 1998 Act should preclude the applicant's claim for compensation, and

(d) Mr Carney submitted that an award ought to be made in the respondent's favour.

1. Mr Carney's submissions in reply on behalf of the applicant may be summarised as follows:

(a) Mr Carney submitted that the applicant has not refuted drug allegations but has refuted any allegations that he was dismissed from employment with the respondent because of drugs. Mr Carney submitted that the applicant stated that he was dismissed because he could not work his shift, and

(b) in relation to the mechanism of injury, Mr Carney submitted that the applicant's evidence is that the pain intensified after he removed his shirt following the injury.

Did the applicant sustain injury arising out of or in the course of his employment, to which his employment was a substantial contributing factor, pursuant to ss 4(a) and 9A of the 1987 Act?

1. Section 9 of the 1987 Act provides that a worker who has received an "injury" shall receive compensation from the worker's employer.
2. The term "injury" is defined in s 4 of the 1987 Act as follows:

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."

"(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.

Note. In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.

(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.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following:

(g) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,

(h) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies."

1. A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1] (Kooragang), where Kirby P (as his Honour then was) stated:

"From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate ...

Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act."[2]

"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, 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. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

1. Although the High Court in Comcare v Martin[3] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
2. The standard of proof which I am required to apply is the balance of probabilities.
3. Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[4] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I "must feel an actual persuasion of the existence of that fact".
4. The Court of Appeal in Nguyen v Cosmopolitan Homes[5] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:

"(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

1. On examination, both independent medical experts, Dr Wijenayake and Associate Professor Miniter, noted an abnormality of the applicant's right biceps tendon.
2. Associate Professor Miniter diagnosed a contour abnormality of the right biceps, noting that the biceps tendon appeared to be intact, but the muscle is retracted distally.
3. Dr Wijenayake diagnosed a proximal biceps tendon rupture. Photographs of the applicant's right arm included in Dr Wijenayake's report clearly show an abnormal contour of the applicant's right bicep in the nature of a Popeye deformity.
4. That is consistent with the findings of Dr Cheriachen, treating orthopaedic surgeon, who recorded that on examination the applicant had an obvious Popeye deformity and tenderness over the biceps muscle.
5. Noting that the MRI did not cover the distal aspect of the applicant's arm, the MRI of the right shoulder nevertheless evidences attenuated internal and extracapsular right biceps tendon fibres. That is consistent with the findings on examination of the independent medical experts and the other medical evidence.
6. On the basis of the medical evidence as a whole, I prefer and accept the evidence of

Dr Wijenayake because is consistent with the evidence of the treating general practitioner and the treating medical evidence as a whole and I consider that it provides a logical and likely explanation for the clear deformity of the applicant's right biceps. On that basis, I am satisfied and find that the applicant has a diagnosis of proximal biceps tendon rupture. 7. Associate Professor Miniter stated that the mechanism of injury was not clear and he found it difficult to confirm that the applicant had a work injury. In that regard, Associate Professor Miniter seemed to give weight to inconsistencies, the failure of the applicant to return to work in any capacity without a clear explanation and that the applicant appeared to have mental health issues. Associate Professor Miniter expressed the opinion that in the circumstances it was unlikely that the applicant's employment was a significant contributor to the condition and he suspected that the applicant's condition was a pre-existing problem. 8. However, Dr Wijenayake opined that the reported mechanism of injury in the form of a job that requires continuous lifting of boxes weighing 20 to 30kg fits with biceps tendon rupture and that the applicant's employment with the respondent was likely the significant contributor to his biceps tendon rupture. 9. I note that there is no evidence of any prior right arm injury, pain symptoms experience by the applicant prior to 20 May 2023 and it appears that the applicant worked without restriction prior to 20 May 2023. 10. The applicant consistently also reported the same mechanism of injury to the treating general practitioner and at his hospital attendance when he sought treatment for his right arm condition. 11. I note that the factual evidence is largely consistent, and on that basis I accept that:

(a) the applicant worked for the respondent as a deckhand for a period of approximately five to six months;

(b) in that role, the applicant's duties included working on fishing boat at sea, lifting nets, lifting boxes of fish and cleaning the boat, and

(c) boxes of fish which the applicant was required to lift weighed approximately 25kg.

1. Further, on that basis, I accept that the applicant was engaged in work for the respondent of a physical and strenuous nature which involved the repetitive use of his right arm including in a motion of lifting boxes which weighed approximately 25kg.
2. The applicant claims that he initially developed right arm pain when he was lifting boxes filled with fish in the course of his employment with the respondent on or about 20 May 2023. The applicant alleges that he reported the injury to both Mr Brancatisano immediately and that he reported it to Mr Bagnato when the boat returned to the wharf.
3. Mr Bagnato conceded that he was not on the boat on 20 May 2023. Mr Bagnato cannot recall the applicant ever telling him that the applicant had a sore arm or that he needed a day off. Mr Bagnato denied that the applicant requested a day off work because his arm was injured. Mr Bagnato denied that, the following day, he telephoned the applicant and asked him to work and that the applicant said that he needed the day off because of his sore arm and that Mr Bagnato then told the applicant not to return to work. Mr Bagnato then stated that he could not recall if he spoke with the applicant directly but he got word to the applicant that he needed to get off the boat where he was sleeping.
4. Mr Brancatisano did not recall working with the applicant on that occasion. There is no evidence given by any other deckhand who was working on that occasion.
5. Both Mr Bagnato and Mr Brancatisano deny that the applicant ever reported the injury at any time. Mr Brancatisano denies giving the applicant Nurofen.
6. It is somewhat difficult to reconcile the evidence of the applicant, Mr Bagnato and

Mr Brancatisano. When I analyse their evidence closely, it appears that both Mr Bagnato and Mr Brancatisano have some difficulty recalling precise detail of what occurred on or about

20 May 2023. The applicant however gives more detailed evidence in relation to the course of events on or about that day, particularly as they related to his alleged injury. If the applicant's evidence is to be accepted, perhaps that is not surprising as those reported events relate to him specifically and to a significant event in his life causally related to the injury. 7. Both Mr Bagnato and Mr Brancatisano refer to allegations of repeated drug usage by the applicant during his employment with the respondent, as an apparent basis to challenge the credibility of the applicant's evidence and to explain the termination of the applicant's employment. I find this evidence curious having regard to Mr Bagnato and Mr Brancatisano's general difficulty recalling precise details of what occurred on or about 20 May 2023, and also because permitting the applicant to continue to work after being observed taking drugs seems to directly conflict with the respondent's no drug and alcohol policy and also the clear health and safety risks inherent in usage of drugs and alcohol in such a potentially dangerous work environment. For this reason, I give little weight to the evidence of the applicant's reported drug use in relation to the credibility of the applicant's evidence generally. 8. Considering the evidence as a whole and the matters which I have set out above, I prefer and accept the applicant's evidence. In the absence of any evidence of pre-existing right arm injury and symptoms and the absence of any alternative explanation for the applicant's right arm condition, I feel an actual persuasion and I am satisfied that the applicant's employment with the respondent in such a physically demanding role provides a logical and likely explanation for his right arm condition. 9. On that basis, I am satisfied on the balance of probabilities that the applicant sustained injury to his right bicep tendon on 20 May 2023 arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and, further, his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act.

Is the proposed medical or related treatment reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act?

1. Sub-section 60(1) of the 1987 Act relevantly provides:

"60 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).

Is the proposed treatment medical or related treatment?

1. The applicant seeks compensation for expenses of and related to the surgery, being tenodesis of biceps by open arthroscopic means which was recommended by Dr Deepak Cheriachan.
2. That is clearly "medical or related treatment (other than domestic assistance)" within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

1. In Diab v NRMA Ltd,[6] Roche DP, referring to the decision in Rose v Health Commission (NSW),[7] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury_:[8]_

"The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at

'3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

1. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
2. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition'."
3. Roche DP[9] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[10]

"The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary."

"Reasonably necessary does not mean 'absolutely necessary' (Moorebank at [154]). If something is 'necessary', in the sense of indispensable, it will be 'reasonably necessary'. Depending on the circumstances, a range of different treatments may qualify as 'reasonably necessary' and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is 'reasonable and necessary', which is a significantly more demanding test that many insurers and doctors apply ..."

"In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) the appropriateness of the particular treatment;

(b) the availability of alternative treatment, and its potential effectiveness;

(c) the cost of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts."

1. As noted above, I am satisfied and find that the applicant has a diagnosis of proximal biceps tendon rupture, consistent with the evidence of Dr Wijenayake, Dr Cheriachan and the treating medical evidence as a whole.
2. The MRI of the right shoulder evidences attenuated internal and extracapsular right biceps tendon fibres.
3. It is clear from the medical evidence including the photographs attached to Dr Winenayake's report that the applicant has a deformity of his right biceps.
4. The applicant's evidence is that he has an ongoing deformity of his right biceps and that it has caused him to suffer pain, distress, anxiety, loss of earning capacity and has been unable to particulate in normal employment, social, domestic and recreational activities that he previously enjoyed. The applicant wants to undergo the surgery to treat the condition.
5. The applicant's treating orthopaedic surgeon, Dr Cheriachan, stated that the applicant was accepting of risks and consented to surgery.

1. The ARD states that the amount of $10,000 is claimed as the total cost of the surgery recommended by Dr Cheriachan, which is consistent with Dr Wijenayake's estimation that the surgery would cost approximately $18,000 to $20,000.
2. I note that Dr Deepak Cheriachen's fee estimate for tenodesis of biceps by open or arthroscopic means performed as an independent procedure in the amount of $1,635.
3. Associate Professor Miniter did not comment on the estimated costs of the surgery.
4. The respondent has not raised any issue in relation to the costs of the treatment.

Availability of alternative treatment and its effectiveness

1. The applicant's right biceps deformity has clearly not improved by itself over time.
2. There is no evidence of any alternative treatment which would be likely to effectively treat the deformity of the applicant's right biceps.

Actual or potential effectiveness of the treatment and acceptance by medical experts of the treatment

1. Independent medical expert, Associate Professor Miniter, opined that the surgery is not reasonably necessary for the injury.
2. As noted above, I do not accept Associate Professor Miniter's diagnosis of the applicant's right biceps condition.
3. Associate Professor Miniter appears to base his opinion that the surgery is not reasonably necessary, at least in part, on his findings on examination that the applicant had little or no disability caused by the right biceps condition, normal power of muscle strength in his right arm and excellent power of flexion of the right elbow. On that basis, Associate Professor Miniter seemed to regard the purpose of the surgery was merely to address the appearance of the applicant's biceps.
4. Associate Professor Miniter opined that the applicant's condition would be best managed in a non-operative manner. However, Associate Professor Miniter did not state any alternative non-operative treatment which would effectively improve the clear deformity of the applicant's right biceps.
5. In contrast, independent medical expert, Dr Wijenayake, opined that the surgery is reasonably necessary treatment for the applicant's right biceps injury.
6. Dr Wijenayake, appeared to accept the applicant's reported ongoing weakness in his right arm and difficulties with lifting. Dr Wijenayake stated that the applicant is currently fit only for non-manual duties and has been totally incapacitated from performing his pre-injury duties due to the weakness in his right arm. I note that is consistent with various medical certificates and Certificates of Capacity that are in evidence.
7. Dr Wijenayake expressed concern that the longer the surgery is delayed, the more difficult the surgery will be for the treating surgeon. I note that is somewhat consistent with the evidence of Associate Professor Miniter who indicated that surgical reconstruction would not be beneficial after a period of time.
8. Dr Wijenayake opined that the applicant would currently benefit from the proposed surgical management for his right biceps tendon rupture, and stated that it is likely to result in significant improvement of the applicant's symptoms, particularly weakness. Dr Wijenayake opined that with appropriate treatment in the form of surgical intervention, in the future the applicant could return to his pre-injury duties
9. Dr Wijenayake's opinion that the surgery is reasonably necessary to treat the applicant's right biceps condition is consistent with the evidence of the applicant's treating orthopaedic surgeon, Dr Cheriachan, who recommended the surgery to treat the applicant's right biceps condition.
10. I prefer and accept the evidence of Dr Wijenayake because, considering the evidence as a whole, I am of the view that it provides a reasoned and sensible explanation which is consistent with the applicant's evidence and the treating evidence. The applicant's treating surgeon, Dr Cheriachan, has had the opportunity to closely examine the applicant and I accept that he is well placed to form a sensible opinion regarding the optimum treatment for the applicant's right biceps condition. Further, I consider that the opinions of Dr Wijenayake and Dr Cheriachan are based on a sound understanding of the applicant's ongoing restrictions caused by the condition which is supported by treating medical evidence, and I accept.
11. Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the requested future surgery is reasonably necessary.

Does the need for the proposed treatment arise as a result of a work injury?

1. In Murphy v Allity Management Services Pty Ltd[13] Roche DP stated at [57] and [58]:

"... a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary 'as a result of' the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)".

1. In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff's disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
2. Having regard to my findings in relation to the injury above, I am satisfied that the need for the requested surgery arises as a result of a work injury.

Should the applicant's claim be precluded by operation of s 254 of the 1998 Act?

(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.

(3) Each of the following constitutes special circumstances -

(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,

(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,

(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,

(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,

(e) the employer has contravened section 231,

(f) the injury has been treated in a first aid room at the place of work,

(g) if the employer is the owner of a mine - the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.

(4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances -

(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,

(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011,

(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop."

1. As set out above, I have determined that the applicant sustained injury to his right bicep tendon, pursuant to ss 4(a) and 9A of the 1987 Act, with a date of injury of 20 May 2023.
2. As I stated above, it is somewhat difficult to reconcile the evidence of the applicant,

Mr Bagnato and Mr Brancatisano. When I analyse their evidence closely, it appears that both Mr Bagnato and Mr Brancatisano have some difficulty recalling precise detail of what occurred on or about 20 May 2023. The applicant however gives more detailed evidence in relation to the course of events on or about that day, particularly as they related to his alleged injury. If the applicant's evidence is to be accepted, perhaps that is not surprising as those reported events relate to him specifically and to a significant event in his life causally related to the injury. 3. For the reasons set out above, I prefer and accept the applicant's evidence. I consider it logical and likely that he would have verbally advised Mr Brancatisano and Mr Bagnato during or at the end of his work shift on 20 May 2023 that he had a sore right arm. However, I accept that it is possible that none of the applicant nor Mr Brancatisano nor Mr Bagnato may have then understood nor appreciated the extent of the injury because it was not until the applicant later removed his shirt that he saw the physical deformity. 4. I note that it is not in dispute that the applicant's employment was terminated by the respondent shortly thereafter. 5. On that basis, I am satisfied that the applicant has complied with the requirements of s 254(1) of the 1998 Act, specifically that the applicant gave notice of the injury to the respondent as soon as possible after the injury happened (and noting that the applicant did not voluntarily leave the employment but was dismissed by the respondent). 6. In the event of any error in my reasoning in that regard, I am alternatively satisfied that, by operation of s 254(2) of the 1998 Act, there are special circumstances which prevent the failure to give notice of injury as required by s 254(1) of the 1998 Act from being a bar to the recovery of compensation. 7. To the extent that the applicant's giving verbal notice of the injury may be considered to be insufficient, I am satisfied that the failure to give notice of injury or inaccuracy in the notice was occasioned by reasonable cause because the applicant has described, and I accept his evidence which is consistent with the reported history in medical evidence, that he was not fully aware of the physical extent of the deformity and injury to his right biceps until he took off his shirt, which I understand to have occurred after he completed work. On that basis, I am satisfied that the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by other reasonable cause 8. In any event, I note that Mr Bagnato gave evidence that he became aware of an injury claimed by the applicant was some three or four months after the applicant ceased employment, when he was contacted by a hospital and the insurer. The only hospital records in evidence are those of the Blacktown Hospital, which record that on the evening of 23 and 24 June 2023, the applicant presented to the Emergency Department in relation to a right bicep injury. At that time, the hospital physiotherapist recorded that the applicant reported that he had experienced the pain for the previous three weeks after he had been heavy lifting at work. The physiotherapist recorded a diagnosis of likely biceps tear and noted that the applicant sought to lodge a workers' compensation claim in relation to the injury. The hospital records also note that the applicant reported that he had already gone to Liverpool Hospital two or three weeks prior regarding the right biceps injury. 9. If I accept Mr Bagnato's evidence that he was contacted and advised by a hospital of the applicant's right biceps injury and a potential workers' compensation claim in that regard, then reconciling that with the hospital records, it seems that it most likely occurred at least no later than around 24 June 2023, which is only about one month after the injury occurred. 10. On that basis, I am satisfied that the person against whom the proceedings are taken had knowledge of the injury from another source within about one month after the injury occurred. 11. On that basis, I am satisfied that there is reasonable cause that notice of injury was not made at an earlier time and that the particular and somewhat unusual circumstances make it unjust for s 254(1) of the 1998 Act to preclude the applicant's claim. 12. Accordingly, I find that the applicant's claim is not precluded by operation of s 254(1) of the 1998 Act.

(a) the applicant sustained injury to his right bicep tendon, with a date of injury of

20 May 2023, pursuant to ss 4(a) and 9A of the 1987 Act;

(b) the surgery, being tenodesis of biceps by open arthroscopic means which was recommended by Dr Deepak Cheriachan, is reasonably necessary as a result of the injury pursuant to ss 59 and 60 of the 1987 Act, and

(c) the applicant's claim should not be precluded by operation of s 254 of the 1998 Act.

(a) the respondent to pay the costs of and incidental to tenodesis of biceps by open arthroscopic means which was recommended by Dr Deepak Cheriachan pursuant to s 60 of the 1987 Act.

[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.

[2] Kooragang, at [461] (Sheller and Powell JJA agreeing).

[3] [2016] HCA 43, [42].

[4] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].

[6] [2014] NSWWCCPD 72.

[7] [1986] NSWCC2; [1986] NSWCC 2; (1986) 2 NSWCCR 32.

[8] [2014] NSWWCCPD 72, at [76].

[9] [2014] NSWWCCPD 72, at [78].

[10] [1997] NSWCC 1; 14 NSWCCR 233.

[11] [2014] NSWWCCPD 72, at [86].

[12] [2014] NSWWCCPD 72, at [88]-[89].

[13] [2015] NSWWCCPD 49 at [57].