1. By an ARD dated 19 December 2024 filed in the Personal Injury Commission (the Commission), the respondent claimed permanent impairment compensation pursuant to s 66 of the 1987 Act and an indemnity in respect of his medical and hospital expenses pursuant to s 60. The injury description in that document stated:

"The [respondent] has sustained a disease injury during the course of his employment with the [appellant]. The [respondent] would engage in repetitive lifting and twisting which caused injury to his neck, back and left knee. His pain was further aggravated by his return to work when he developed worsening bilateral shoulder pain."

After reciting several medical diagnoses, the pleading continued:

"The nature of the work the [respondent] performed whilst working for the [appellant] has caused an aggravation of underlying lumbar spondylosis and cervical spondylosis. The duties he would perform which were physically demanding have caused a deterioration to his lumbar spine, cervical spine and shoulder pathologies."

Under the heading "Type of Injury" the following appears:

"Aggravation, acceleration or exacerbation or deterioration of a disease".

The deemed date of injury, presumably for the purpose of s 16 of the 1987 Act, is recorded as 25 January 2023, the date of claim for permanent impairment compensation.

1. By a Reply dated 17 January 2025, the appellant confirmed that the issues in dispute were "as per dispute notice(s) attached to the application." It also stated:

1. The [appellant] admits that the [respondent] sustained a personal injury to his back and left knee on 20 May 2019 for the purposes of sections 4 and 9A of the [1987 Act].
2. The [appellant] disputes that the [respondent] sustained an injury to his neck on 20 May 2019, or to his neck and right shoulder on 29 March 2022, or at all, for the purposes of sections 4 and 9A of the 1987 Act.
3. The [appellant] disputes that the [respondent] has sustained an injury to his left shoulder for the purposes of sections 4 and 9A of the 1987 Act.
4. The [appellant] disputes that the [respondent] contacted [sic], aggravated, accelerated, exacerbated or suffered the deterioration of a disease in the course of his employment with the [appellant] and to which his employment was the main contributing factor pursuant to section 4 of the 1987 Act.
5. Prior to the Application to Resolve a Dispute, [the respondent] had not made a claim for compensation in relation to an injury on 25 January 2023. The [appellant] disputes that there is jurisdiction in the Commission to consider any such injury.

1. The [appellant] disputes that the [respondent] has an entitlement to permanent impairment compensation as alleged or at all pursuant to section 66 of the 1987 Act.
2. The [appellant] disputes that the [respondent] may combine impairments pursuant to section 322 of the 1998 Act, other than impairments of the lumbar spine and left knee (and scarring) for the injury on 20 May 2019.

1. When the matter came on for an arbitration hearing before Member Seaton on 17 March 2025, Mr Ty Hickey, of counsel, appeared for the respondent worker and Ms Goodman, of counsel, appeared for the appellant. The Member recorded that the following issues were in dispute and required determination by the Commission:[7]

"(a) whether the [respondent's] claim for injury on 25 January 2023 and/or deemed date of injury 25 January 2023 can be referred for determination by the Commission pursuant to s 289(3) of the 1998 Act;

(b) whether the [respondent] has sustained an injury to his neck on 20 August 2019 or to his neck and right shoulder on 29 March 2022 pursuant to ss 4 and 9A of the [1987 Act];

(c) whether the [respondent] has sustained an injury to his left shoulder pursuant to ss 4 and 9A of the 1987 Act;

(d) whether the [respondent] has sustained any disease in the course of employment pursuant to s 4(b) of the 1987 Act;

(e) whether the [respondent's] impairments are able to be combined pursuant to s 322 of the 1998 Act, and

(f) whether the [respondent] is entitled to the payment of medical and related expenses as a result of injury pursuant to s 60 of the 1987 Act."

The date 20 August 2019 in sub paragraph (b) above is presumably a reference to the accepted injury on 20 May 2019.

This recitation of the issues in dispute is identical in all respects with the notations the Member recorded in a Direction following a preliminary conference between the legal representatives of the parties on 19 February 2025. It is not suggested that it is inaccurate.

1. At the arbitration hearing, Mr Hickey submitted that the respondent suffered "aggravation injuries" at each of the claimed "body systems" "due to the nature of the work".[8] He also argued that an "event" clearly occurred in 2019, and that the appellant did not dispute that it "results in" conditions of the knee and lumbar spine.[9] He submitted that there was unambiguous evidence that the respondent worker also suffered a cervical injury on 20 May 2019. It was argued that the appellant's medical evidence, including the opinion of Dr Powell, should be rejected as it was inconsistent with both the respondent's lay and medical evidence. He submitted that the Member would find injury to the respondent's neck and both shoulders. The principles relating to aggregation enunciated in Department of Aging, Disability and Home Care v Findlay[10] were applicable. Irrespective of whether there were separate dates of injury:

"those injuries can be aggregated for the purposes of section 322 and ultimately determined by the [medical assessor]."[11]

1. Ms Goodman submitted that there were "a number of dates of injury".[12] The first date of injury occurred on 20 May 2019. She submitted that the deemed date of injury alleged in the ARD was "not correct and not in accordance with the decision of Haddad." Haddad is a reference to the decision of the Court of Appeal in Haddad v The GEO Group Australia Pty Limited.[13]
2. Ms Goodman submitted that the contemporaneous evidence did not support the respondent's assertion that he had injured his neck and right shoulder at the time of the injury on 20 May 2019.[14]
3. The appellant argued that if the respondent suffered injury to his right shoulder, it was "on the 29th of March 2022".[15] This conclusion was supported by the respondent's evidence. At that time, the respondent was performing "completely different" duties to those which he was performing at the time of his injury in May 2019.[16] The Member could not combine the two separate injuries caused by different aspects of the respondent's employment. Section 322(3) had no application to the facts of this case. The facts in this case could be distinguished from those before Roche DP in Findlay.[17]
4. The Member found that the respondent suffered degenerative conditions in his neck and both shoulders. She accepted the medical opinion of Dr Herald and the treating neurosurgeon Dr Khong, that these conditions had been aggravated by the injury in 2019 and the nature of the respondent's employment. She rejected the opinions of Dr Powell and Dr Cadden, the medical practitioners who had examined the respondent worker at the request of the appellant.[18]
5. In resolving the dispute as to whether s 322(3) applied in the circumstances of this case, the Member stated:

"The [appellant's] submission that the nature of the [respondent's] tasks in February 2022 were not the same as his earlier tasks has some force. The employment activities which caused each injury require examination.

In this case however I am of the view that any change in the nature of the [respondent's] activities in early 2022 do not result in a separate or distinct mechanism of injury.

The activities that caused the [respondent's] injuries prior to 2022 are described as lifting and twisting. His activities in 2022 involved lifting with weight restrictions. Although the [respondent] does not describe twisting Dr Cadden for example refers to twisting.

I am persuaded on balance that the nature of the [respondent's] employment with the [appellant] between 2010 and 2022 represents the same incident for the purposes of s 322 of the 1998 Act."[19]

1. In respect of the date of injury, the Member considered the reasoning in Haddad and in Ellis v Dontarna Pty Limited.[20] She stated at [306]-[308]:

"I accept the [appellant's] submission that incapacity arose from the injury for which lump sum compensation is claimed, however no submissions were made on the relevant date of incapacity.

Incapacity as a result of the injuries to the left knee, lower back, cervical spine and both shoulders caused by the nature of the work performed by the [respondent] appears to have commenced on 1 April 2022 when suitable duties were withdrawn and he ceased work."

Accordingly, the Member found that the deemed date of injury was 1 April 2022.

1. Relevantly, the Member made the following determination:

"2. The [respondent] has sustained injuries to his cervical spine and both shoulders pursuant to s 4(b)(ii) of the [1987 Act].

1. The injuries to the [respondent's] left knee, lumbar spine, cervical spine and both shoulders arise from the same incident and are to be assessed together for permanent impairment pursuant to s 322(3) of the 1998 Act with deemed date of injury 1 April 2022."
2. The Member remitted the matter to the President for a referral to a medical assessor of the body parts which she determined related to the injury on 1 April 2022 and those which the appellant conceded were caused by the respondent's employment, namely the back and left knee. She made an award for the respondent worker for his medical and hospital expenses resulting from these injuries pursuant to s 60.
3. The deemed date of injury found by the Member involved the application of s 16 of the 1987 Act to the injuries found pursuant to s 4(b)(ii).

1. The appellant relies on three grounds of appeal.

Ground 1 - The Member made an error of fact or discretion in finding that there had been an aggravation of a disease affecting the right and the left shoulder prior to the deemed date of injury or, in relation to the left shoulder, at all.

Ground 2 - The Member made an error of fact, law or discretion by finding that the injuries resulted from the "same incident" or "same injurious incident" for the purposes of s 322 of the 1998 Act.

Ground 3 - The Member made an error of fact, law or discretion by finding that the deemed date of injury was 1 April 2022.

1. Section 322 of the 1998 Act, insofar as it is relevant, is as follows:

"(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker."

1. As the first two grounds of appeal largely allege factual errors by the Member, it is necessary to briefly review the respondent's evidence and that of Dr Powell, Dr Cadden and Dr Herald, each of whom provided medico-legal reports addressing the issues in the case. What follows is not a comprehensive summary of the evidence in the case. Rather, I set out the salient points of this evidence so that the parties can understand the way in which the Commission has resolved this appeal. Further, I note the Member's careful summary of the evidence in the case at [17] to [113] of her Statement of Reasons.

1. The respondent's evidence is contained in three statements dated 22 January 2021, 10 November 2022, and 27 September 2023. By his initial statement, the respondent records that he had worked for the appellant since 4 January 2010. He states that he first experienced lower back pain associated with his work duties in April/May 2019.[21] On 20 May 2019, he bent down to pick up a box weighing 20 kilograms when:

"as I straightened and turned to one side, I felt a click in my left knee and felt pain in the front and centre of my knee."[22]

1. The respondent states that he consulted Dr Lim of Workers Doctors, Parramatta on the following day. He states:

"I reported pain in my neck with radiation to my bilateral shoulders, lower back pain with radiation to my right hip and right thigh, left knee and aggravation to my right knee."[23]

1. The respondent records that he was referred to physiotherapy in respect of his left knee and to two orthopaedic surgeons, Dr Gavin Soo and Dr Keeley. The latter doctor recommended that the respondent undergo left knee surgery and a cortisone injection. He states that he continues to suffer pain in his left knee and in his low back.
2. By a statement of 10 November 2022, the respondent recounts that as a storeman he was required to "move pallets and make pallets up of oils and parts". He was also required to perform pick packing and loading and unloading.[24]
3. In November 2018, the respondent was transferred to the appellant's new warehouse at Kemps Creek. He described his work there as follows:

"To do the role in the oil area dispatch I was using a flat back trolley and I had to lift the different oils of 5L cans of oils. The dealerships order in boxes of oils which come in boxes of 4 and I would have to scan the oils as I was picking them and the[n] palletise them for dispatch. The orders ranged in sizes and I was doing this for every shift. In 2019, I was assigned to pick order in the Oil area, there are the different types of oils that are required. Every box of oils is roughly 20kg."[25]

1. The respondent states that on 20 May 2019, he was lifting a box of oils weighing 20kg to place it on a trolley. As he turned to place the box on the trolley, he felt his "knee, back and neck all twist awkwardly". He immediately experienced pain in his back and his left knee.[26]
2. While the respondent consulted a GP at the same practice as Dr Lim, Dr Sebastian Calvache-Rubio, for the injury, he was not certified as totally unfit for work. Rather, he was placed on selected duties on reduced hours and referred for specialist assessment of his knee. The respondent states that he continued to experience pain in his left knee, back and neck while he performed selected duties which largely involved driving a forklift. He says this work was "okay".[27]
3. In May 2021, the respondent was transferred from the forklift work "onto the floor". He worked four 8-hour days each week and retained a weight limit of 10kg for lifting and carrying.[28] Whilst performing the lifting work in May 2021, the respondent says he suffered a hernia. The appellant did not accept liability for this condition. The respondent underwent surgery as a private patient for this condition in July 2021. He says he finally returned to work following his knee surgery in February 2022 working 4-6 hours a day, 4 days a week. He continues:

"When I went back in February 2022, I was a given a standing job on the small pass. I was told I had to scan 170 bar codes of all the items within the boxes in one line, the scanner is around 600g and I had to lift the box and scan and put all the items back in the box and then move the box and do the next one. I really attempted to do my best but the pace was too fast for me and I was not able to scan 170 line items. This caused pain in my shoulder as I was trying to go at the pace needed."[29]

1. The respondent recounts that he was unable to cope with the pain caused by this work. In early April 2022, he was told that the appellant did not have suitable duties for him. He sought further medical treatment. He states that he experienced tingling in his hands and arms at the time because of the tear in his right shoulder. The respondent also states that he has constant pain in his neck, back and shoulder.[30]
2. By a third statement dated 27 September 2023, the respondent again recounts the nature of his work with the appellant. He again records the incident on 20 May 2019, in similar terms to his previous evidence. The respondent states that following the injury on 20 May 2019, he continued working. However, he suffered from increased pain in his left knee, the left side of the lower back and pain that radiated to his left shoulder and the base of his neck. He continues:

"The pain to my neck, lower back and left shoulder was caused from the incident that occurred on 20 May 2019.

Prior to the incident, I would get occasional pain in my neck and lower back due to the repetitive tasks of bending and lifting heavy weight. This would be soreness all over my body. I would be extremely tired after work. I would go home and rest and then proceed to work the next day as usual."[31]

1. The respondent also describes the work which he was performing in May 2021, when he suffered a hernia. He says that he was unloading large boxes of disc brakes, which had been placed on a platform by a forklift. He continues:

"I was constantly lifting and twisting through this shift, and when lifting one of the brakes I felt pain instantly in my groin area."

1. The respondent describes the work he performed in February 2022 in much the same terms as in his earlier statement. He says that he "struggled" to meet the required speed. He says that by 29 March 2022 he was in pain and could not complete the tasks assigned to him by the appellant.

1. Dr Powell first saw the respondent on 20 August 2020 and provided a report of 24 August 2020. He recorded that the respondent experienced a "gradual accumulation" of lower back pain over a period of several weeks leading up to 20 May 2019. On 20 May 2019, on straightening after picking up a box weighing 20kg, he experienced symptoms in the left knee. Thereafter the respondent was aware of pain in the lower back which "would spread proximally to the left shoulder and base of the neck."[32]
2. After examining the respondent, Dr Powell expressed the opinion that the respondent had patellofemoral chondral pathology in his left knee and non-specific left-sided lower back pain probably as a consequence of a strain. He expressed the opinion that there was "no history of any injury involving the cervical spine".[33] He also expressed the opinion that the symptoms caused by the injuries to the left knee and low back at work were "minor and temporary". His ongoing symptoms did not relate to his employment.[34]
3. By a supplementary report dated 28 September 2020,[35] Dr Powell stated that the respondent had not made "any mention" of an injury to his cervical spine at his examination. Accordingly, he did not examine the cervical spine. He opined that there was no "causal link" between the injuries to the left knee and lower back and the cervical spine condition. He expressed the opinion that the respondent's symptoms no longer related to injuries sustained in the course of his employment.
4. Dr Powell reiterated his opinion in a further supplementary report of 30 June 2021 and also expressed the opinion that the symptoms in the respondent's left knee related to "degeneration within the patellofemoral compartment". He thought that the surgery proposed by Dr Keeley was to address these underlying degenerative changes. He also stated that:

"In relation to the cervical spine and left knee it is possible that the nature and conditions of his employment did result in aggravation of pre-existing degenerative disease processes in those areas."[36]

Nonetheless, he believed that any aggravation would have been "minor and temporary and resolved by now".

1. Dr Powell saw the respondent again on 30 March 2022 and provided a report of 10 June 2022 in which he noted that the appellant had accepted liability in respect of the respondent's left knee and lower back. He noted that the respondent "remains symptomatic" at those sites.[37] The doctor examined the respondent's lumbar spine and left knee and once again he expressed the opinion that any continuing symptoms at these sites were unrelated to employment injury. He did not take a history from the respondent of symptoms in his neck and shoulders, although it is quite clear from the evidence that the respondent was complaining of significant right shoulder symptoms at around that time.
2. Dr Powell next saw the respondent on 15 January 2025 and provided a report of 7 March 2025. At this consultation the doctor recorded a history of symptoms in both the cervical spine and right shoulder which had "developed in an insidious fashion without any specific precipitating incident".[38] On this occasion, Dr Powell examined the respondent's cervical spine and right shoulder in addition to his back and left knee. He offered the following opinion:

"I do not believe there is sufficient evidence to conclude that he sustained any injury to the cervical spine or bilateral shoulders as a result of his employment. Employment would not be considered to represent the main contributing factor either causally or consequentially in the development or aggravation of any disease process involving the shoulders or cervical spine."[39]

1. Dr Powell considered that the respondent had no permanent impairment at the lumbar spine or left knee. He stated that he differed from Dr Jonathan Herald on the causation of the respondent's bilateral shoulder and cervical spine conditions. He stated that his clinical findings in respect of the lumbar spine and left knee were different to those of Dr Herald.

1. Dr Cadden, an orthopaedic surgeon, saw the respondent on 23 January 2023 at the request of the appellant's insurer and provided a medical report of 16 February 2023. Dr Cadden took a history of the respondent developing some low back pain in the first half of 2019. He experienced left knee pain and, probably, back pain following the twisting injury on 20 May 2019. He recorded a history of the respondent worker developing right shoulder pain on his return to work while performing scanning work. This work required "regular bending and extension of the arms".[40] After examining the respondent and considering the radiological evidence, he expressed the following opinion:

"He suffered an original twisting injury to the left knee on 20 May 2019. This has resulted in ongoing pain to the patellofemoral region of the left knee where he has undergone an iliotibial band release to treat the ongoing knee symptoms. On return to work he has developed pain into the right shoulder relating to the twisting and scanning that he was undertaking a subsequent development of pain into the left shoulder."[41]

1. The doctor enquired of the respondent worker as to when he experienced shoulder pain. He recorded that:

"On questioning he stated there was no report of a shoulder injury with the initial injury to the left knee. He was experiencing some lower back symptoms at the time. The right shoulder symptoms had occurred when he has returned to work doing a different area of activity which required more twisting and holding of the scanner with the right hand. These symptoms to the shoulder would not be related to the 2019 claim and would be a new issue arising from his return to work."[42]

1. The doctor also observed that an MRI scan demonstrated changes in the cervical spine including compression of the C4 nerve root on the right and the C6 nerve root on the left. He stated that such changes "can cause a pain to go into the shoulders and can be associated with reduction in shoulder motion due to pain".
2. By a supplementary report dated 15 May 2023, the doctor expressed the opinion that it was more likely that the respondent's symptoms related to his cervical spine. He stated:

"There were no reported symptoms from the 2019 injury to the cervical spine. The symptoms have occurred from the time he returned to work, where there was more twisting motion with activities."[43]

1. Dr Herald, an orthopaedic surgeon, saw the respondent on 24 August 2022 and provided a report of the same day. He took a different history of the injury of 2019 to that recorded by Dr Cadden. It is as follows:

"As he was carrying an order out to a customer carrying 20kg boxes to put onto a pallet, he carried the box and twisted to the left where his left knee gave way. As he stumbled, he sustained an injury to his left knee and lower back and to a lesser degree his neck and left shoulder."[44]

1. After returning to work following surgery in October 2021 "he was standing all day scanning bar codes and moving boxes and felt back pain from his standing all day and neck pain as well as right shoulder pain."[45]
2. The doctor records that currently the worker "continues to have neck pain, back pain, left knee pain and right shoulder pain". Nonetheless, on examination he found some limitation of function of both shoulders.[46] He assessed permanent impairment of the neck, back, both shoulders, left knee and scarring of the left knee. He expressed the opinion that the respondent suffered 21% whole person impairment.
3. Dr Herald saw the respondent again on 25 September 2024 and provided a report of that date. He took an identical history to that he had recorded in his earlier reports. The doctor diagnosed the following conditions:

(a) bilateral shoulder impingement syndrome; > > (b) left knee chondromalacia patellae with subsequent ITB lengthening; > > (c) aggravation of underlying lumbar spondylosis, and > > (d) aggravation of underlying cervical spondylosis with non-verifiable radicular complaints to bilateral upper limbs.

4. The doctor expressed the following opinion on causation:

"... his employment and in particular the workplace injury he was involved in on 20 May 2019 and his subsequent attempts to return back to work with these injuries over the next few years have resulted in the workplace injuries that I have described in the assessment section in my report above.

In regards to his neck and both of his shoulders, the repetitive lifting and scanning at work are the main contributing factors to his injuries and the progression of his condition. In fact, based on today's assessment, his left shoulder seems to have progressively deteriorated like his right shoulder."[47]

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Section 352(3A) provides that there is no appeal against an interlocutory decision except with leave of the Commission.
2. Both parties submit that the decision of the Member the subject of the appeal is not interlocutory. Unsurprisingly, the reasoning in the decisions which have considered the meaning of "interlocutory" has not been uniform. The view generally accepted in recent Presidential cases is that a determination of injury against an employer in a claim which is solely for permanent impairment compensation pursuant to s 66 of the 1987 Act is an interlocutory decision.[48] Save in the rare cases where quantum is agreed or determined by a member, a final order cannot be made until a medical assessor certifies the degree, if any, of permanent impairment resulting from the injury. As several of the Presidential decisions point out, that view is consistent with the decision of the Court of Appeal in South Western Sydney Area Health Service v Edmonds.[49] It is different when there is a finding against a worker on an injury issue as that decision finally determines their rights in respect of that injury.
3. It is probably also different when orders are made which finally determine the rights of the parties in respect of weekly compensation and/or medical expenses.[50] In this case the Member determined that the respondent suffered a disputed injury to his left shoulder and made an award pursuant to s 60 which obliges the appellant to pay for his hospital and medical expenses in respect of that body part. This may be the reasoning underlying the submissions on the issue in this case. There are other aspects of the award, however, that are, probably, of an interlocutory nature. As the parties have agreed that the decision appealed against is not interlocutory and given that there is a basis for that contention, I propose to consider the issues raised by the appeal.
4. The submissions of the parties in this matter were lodged before the decision of the Court of Appeal in State of New South Wales v Culhana.[51] Accordingly, on 11 August 2025, the Commission issued the following direction:

"The parties are invited to provide any supplementary submissions with respect to Culhana and its effect on this appeal as follows:

1. The appellant is to file and serve any supplementary submissions by no later than 4 pm on 18 August 2025
2. The respondent is to file and serve any supplementary submissions by no later than 4 pm on 25 August 2025".
3. Only the appellant accepted the invitation to provide further submissions.

1. 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."

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

1. The nature of an appeal under s 352 of the 1998 Act was recently considered by the Court of Appeal in Culhana. The appellant addressed the case in a short submission dated 18 August 2025. It is clear, as the appellant argues, that the approach to s 352 stated in Raulston v Toll Pty Ltd[52] and the cases which follow it, is wrong. The first "general principle" stated in Raulston at [19] is predicated on too narrow a view of the appellate function conferred by s 352. That approach is also inconsistent with the previous appellate caselaw.[53]
2. The proper approach to an appeal pursuant to s 352 can be found in the reasoning of the High Court in Warren v Coombes,[54] Lee v Lee,[55] and Fox v Percy.[56] In Culhana, Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following passage from Lee as illustrative of the proposition that, when an appellate court is in as good a position as the trial judge to determine the issue, a determination that a conclusion was "open" is erroneous.[57]

"Having rejected the essential planks of the trial judge's reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this 'very closely balanced' case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of 'weighing [the] conflicting evidence and drawing its own inferences and conclusions', and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good. (citations omitted; emphasis added)."

"Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was 'open' to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion."

1. Plainly, the advantage of the Member in this matter is constrained by the fact that it was determined on the written evidence. Nonetheless, it remains necessary for the appellant to prove error if it is to succeed on the appeal. It must also remain the case that the mere preference of a Presidential member for another outcome in a factual dispute does not inevitably establish error. That is particularly so in evaluative decisions, such as those arising under s 9A or the determination of main contributing factor under s 4(b).[58] Culhana contemplates a rehearing on the basis of the errors asserted in the grounds of appeal and not a review, the statutory methodology for an appeal prior to the 2011 amendments to s 352.

• 62. The recent decision of the Court of Appeal in Mars Australia Pty Limited v Knight[59] confirms that for a decision to be revoked the error found must be material to the outcome and deprive the appellant of a realistic possibility of a different result.

1. At [31] of its submissions in support of the appeal, the appellant alleges that the Member made an error of law in failing to acknowledge or accept that an estoppel arose from the determination of the Commission of 11 August 2021. The Certificate of Determination (COD) of that date contained orders that the claim in respect of the respondent's neck be discontinued; that there be an award for the appellant in respect of injury to the right knee; and that weekly payments of compensation and medical expenses, including the cost of surgery to the respondent's left knee, be paid on a "voluntary basis".
2. It is quite clear that consent orders entered into in the Personal Injury Commission can give rise to an estoppel between the parties. In Habib v Radio 2UE Sydney Pty Limited,[60] McColl JA (Giles and Campbell JJA agreeing) at [186] stated:

"Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so 'only as to those matters which are necessarily decided', to ascertain which 'the Court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to'."

1. Subsequently, the interpretation of consent awards was discussed at length by Deputy President Roche in Bouchmouni v Bakhos Matta t/as Western Red Services[61] and by the President in Etherton v ISS Property Services Pty Limited.[62] In conformity with the reasoning in the above cases, in order to determine what was "necessarily decided" by consent orders it is necessary to examine the pleadings and particulars, the s 74 notice (now a s 78 notice), and the legislation to objectively determine the "genesis" and "aim" of the orders.[63]
2. There are two fundamental reasons why the appellant cannot succeed on an estoppel argument in the circumstances of this case. First, it was not suggested in argument before the Member that the consent award of 11 August 2021 created an estoppel in respect of the body parts claimed in these proceedings. At transcript p 41, Ms Goodman observed that a previous claim for the respondent's neck was discontinued; that there was an award for the appellant for the right knee; and that the appellant accepted liability for the surgery of 19 October 2021 in respect of the left knee. It was not suggested that the orders could estop the respondent from alleging injury to the cervical spine and shoulders or the other body parts disputed in these proceedings. Secondly, the pleadings and particulars and other relevant evidence relating to the prior claim were not referred to in argument. As far as I can ascertain, they were not before the Commission. In these circumstances, it would not have been permissible for the Member to determine what was "necessarily decided" by the consent orders and whether they constrained the respondent's arguments in this case.
3. It is generally not permissible to raise a new point on appeal.[64] Moreso, when evidence which may be relevant to the construction of the consent award has not been tendered in the proceedings. I intend to consider the appeal without further reference to the consent award of 11 August 2021.

Ground 1 - Error in finding bilateral shoulder conditions prior to March 2022 and in finding injury to the left shoulder

1. This ground of appeal largely rehearses the oral submissions made by the appellant at the arbitration hearing. The appellant argues that the Member's acceptance of shoulder symptoms before March 2022 underpinned her finding that the injuries resulted from the "same incident" as the other body parts for the purposes of s 322(3) of the 1998 Act.[65]
2. The appellant submits the finding that the respondent experienced symptoms in his shoulders on or before May 2019 is "at odds with the evidence."[66] It submits that the notes of the "Workers Doctors" (Dr Lim's practice) contain no reference to an injury to the shoulders until 21 April 2022. The records only refer to "neck pain and stiffness, radiating to bilateral shoulders"[67] (emphasis as in original). The appellant then refers to the histories in the report of Dr Powell of 24 August 2020; in the report of Dr Cadden of 16 February 2023; in the report of Dr Cameron dated 23 December 2019; the respondent's claim form of 21 May 2019, and his statements of 22 January 2021 and 10 November 2022. It submits that evidence is not consistent with a right shoulder injury prior to March 2022 and inconsistent with an injury to the left shoulder.
3. The appellant argues there is no reference to a left shoulder injury in the contemporaneous medical records until 12 September 2022, when the respondent informed his psychologist that he had injured both shoulders at work.[68] The absence of left shoulder complaint, necessitated a conclusion that there was no aggravation of a disease process in the left shoulder in the course of the respondent's employment.
4. Further, had the Member properly considered the contemporaneous factual and medical evidence, she could not have concluded that the respondent injured his right shoulder prior to March 2022. Thus, impairment resulting from shoulder injuries could not be combined with other impairments for the purposes of s 322(3).[69]

1. The respondent referred to the reasoning in Branir v Owston Nominees (No. 2) Pty Limited[70] where Allsop J (as his Honour then was) discussed the weight to be given to the views of the trial judge in determining questions of fact. He also submitted that reasoning and the case law collected in Raulston demonstrated the weight to be given to the evidence was a "matter for the Member".[71] I interpolate that the reasoning in Branir and Raulston must now be read in the context of the decision of the New South Wales Court of Appeal in Culhana.
2. The respondent submits that the Member's reasons on the issue of injury appear at paragraphs [243] to [285] of the reasons:

"where the Member outlined the nature of the evidence relied upon and the basis of the determination reached with respect to the question of injury to the left and right shoulders."[72]

1. The respondent argued that the appellant's reference to the reasons at [296] and following is misplaced as:

"the Member was not dealing with injury per se at that point of her decision, but rather the aggregation of point in respect of all conditions claimed".[73]

1. At [250] of her reasons, the Member recorded that the respondent's duties as a store person over a 12-year period involved "repetitive lifting and twisting". She analysed his work in detail. At [251] the Member stated that:

"The nature of the [respondent's] work with the [appellant] is not disputed and his description is consistent with the histories taken by the treating medical practitioners and independent medical experts. I accept the [respondent's] statement evidence on the nature of his duties."

"With respect to the right shoulder, there is medical evidence provided by Dr Herald, Dr Khong, Dr Lim and Dr Chien that the [respondent] has right shoulder disease aggravated by his employment, and that the employment with the [appellant] was the main contributing factor to the aggravation. I accept that evidence."

1. With respect to the left shoulder, the Member again preferred the evidence of Dr Herald and Dr Khong. She accepted that complaints of pain radiating from the spine to the left shoulder was evidence of injury to the shoulder.[74] She found that the nature of the respondent's work had resulted in an aggravation of left shoulder disease to which employment was the main contributing factor.[75] In reaching her conclusions in respect of both shoulders, the Member gave reasons for rejecting the opinions of the appellant's qualified orthopaedic surgeons, Dr Powell and Dr Cadden.[76]

1. Several of the medical histories record that the respondent first experienced right shoulder pain while performing scanning work in his selected duties role in March 2022. Dr Cadden took a clear history to that effect on 23 January 2023. Equally, the documentary evidence available at the time of the injury on 20 May 2019 does not contain reference to a shoulder injury. There is no reference to shoulders in the respondent's claim form in respect of that injury. Dr Calvache-Rubio did not record an injury to the shoulders when he saw the respondent following the injury, although the history he recorded appears very different to that contained in the respondent's written evidence.
2. I doubt that the evidence establishes that the respondent suffered a personal injury to either shoulder on or about 20 May 2019. While Dr Calvache-Rubio took a history of pain radiating from the respondent's spine to his shoulders, he did not diagnose a shoulder injury or the presence of pathology in the shoulders which may have produced those symptoms.
3. The medical histories also point to that conclusion. Dr Cadden recorded in his report of 16 February 2023 that "[o]n questioning [the respondent] stated there was no report of a shoulder injury with the initial injury to the left knee."[77] Rather the right shoulder symptoms occurred when he returned to work doing a "different area of activity."
4. Dr Chien, the treating shoulder surgeon, recoded a similar history:

"On 20 May 2019 he sustained an acute injury at work to his left knee. He was diagnosed with an osteochondral fracture and subsequently had surgery on 19 October 2021. He was then placed on alternative duties involving the use of his upper limbs. Duties include moving boxes and other items while scanning barcodes from them. After a period of time, he noticed the right shoulder pain. This was around 29/3/22."[78]

1. Dr Khong, the treating neurosurgeon, also recorded a similar history. On the basis of that history, he opined:

"He developed neck, back and knee pain as a result of his original workplace injury whilst doing repetitive lifting and twisting. His pain was further aggravated by his return to work. He also developed worsening bilateral shoulder pain after returning to work."[79]

1. Only Dr Herald recorded a history of an injury to the shoulder in in the incident of May 2019. He recorded a history of injury to the respondent's left shoulder but not the right.[80]
2. In his initial statement of 22 January 2021, the respondent states that following the injury on 20 May 2019 he suffered increased pain in his left knee and the left side of his lower back "which at times would radiate to my left shoulder and the base of my neck".[81] There are subsequent references in this statement to pain from the spine radiating to both shoulders. The Member accepted that complaints of pain radiating from the respondent's spine to his shoulders was suggestive of shoulder injury. But the medical evidence does not support that inference, and it is inconsistent with much of the other evidence. Bearing in mind the contemporaneous medical evidence, the medical histories, and the respondent's written evidence, the Member's acceptance that the respondent suffered injury to, or experienced symptoms emanating from, the right shoulder, at the time of the incident in 2019 was in error. However, this conclusion does not invalidate her findings on the issue of injury to the right shoulder.
3. There was no dispute at the arbitration that the respondent suffered a degenerative condition of both shoulders. The Member accepted the evidence of the respondent that he had performed arduous work which caused strain on his shoulders throughout his employment. No attack is made on this finding or on the respondent's credibility. She accepted medical evidence that his work aggravated the degenerative disease in his right shoulder. At [265] and [266] she refers specifically to the evidence of Dr Chien, that the respondent's work over 20 years would have "started to cause injury to the rotator cuff". The work he was performing in May 2022 precipitated symptoms against a background of rotator cuff damage caused by his previous heavy work.
4. Lack of contemporaneous complaint may be relevant to the issue of injury. Absence of complaint may be cogent evidence against a finding of injury. But it is not determinative. Moreso, when the injury is the aggravation of a disease which has occurred gradually and silently over many years.[82]
5. The Member did not find that the respondent suffered an injury to his right shoulder within s 4(a) of the 1987 Act on 20 May 2019. Her finding is of a disease injury within s 4(b) caused by the nature of his employment. In determining injury to the right shoulder at [264] to [271], she does not refer to the presence or absence of right shoulder pain in 2019. It was not critical to her finding. That is evident from her acceptance of the evidence of Dr Chien, who recorded no history of right shoulder complaints before 2022. The absence of complaint of right shoulder pain following the incident of May 2019 does not undermine her finding that the entirety of the respondent's work, and particularly the scanning work in March 2022, aggravated his right shoulder disease. The appellant has not established error in respect of that finding. I have reached a contrary conclusion in respect of the finding concerning the respondent's left shoulder.
6. At the arbitration hearing, the appellant attacked Dr Herald's opinion that repetitive lifting and scanning in March 2022 was the main contributing factor to the aggravation of disease in the respondent's left shoulder.[83] It submitted that the Commission should prefer the opinion of Dr Powell who opined that he had not suffered injury to the left shoulder.
7. It is not evident that Dr Herald recorded history of injury to the left shoulder while performing scanning duties in May 2022 in either of his reports. The notes of Dr Calvache-Rubio recorded in the months following the respondent's cessation of work record no history of injury, or complaint of symptoms in the left shoulder.
8. Dr Calvache-Rubio's note of 21 April 2022[84] contains the following:

1. At the consultation of 9 June 2022, Dr Chien recorded that the respondent developed right shoulder pain while performing scanning work in late May 2022. The history contains no reference to left shoulder pain. While clinical notes and medical histories must be viewed with caution, taken together with other evidence they may be important.
2. In his written evidence the respondent does not state that he experienced left shoulder pain while performing the scanning work in March 2022. For the reasons given above I do not accept that the respondent suffered an injury to his left shoulder at the time of the incident in 2019. The appellant's assertion that there is no recorded complaint of symptoms in the left shoulder before the respondent ceased work on 1 April 2022 is, in my opinion, borne out by a review of the evidence. The relationship between the respondent's left shoulder condition and his work is not straightforward. I conclude that the Member's finding that the respondent suffered a left shoulder injury by reason of his employment is in error. It is posited on the erroneous assumption that there is reliable evidence of a complaint of left shoulder pain before the respondent ceased work.
3. There is no error in the Member's finding that the nature of the respondent's work aggravated a pre-existing disease of his right shoulder. In the context of this case, lack of complaint or the presence or absence of symptoms is not determinative of that question. Conversely, there is error in the finding of injury to the left shoulder. Regrettably, that issue must be redetermined. It is appropriate that this is done after the parties have had the opportunity to make submissions on the issue.

Ground 2 - Error of fact in finding "the same incident" for the purposes of s 322 of the 1998 Act

1. This ground challenges the finding that the respondent's injuries resulted from the same incident. It is not suggested that the principles in Findlay are incorrect. Rather, the appellant submits that the duties which the respondent performed before and after his return to selected duties work in March of 2022 were not the same. It also argues that:

"the Member has not sufficiently referred to the evidence, including the clear distinctions of duties discussed above, to support her findings. The Member has not provided sufficient reasons to allow the parties to understand why such a conclusion was reached."[85]

1. Perhaps with greater force the appellant submits that, on all the evidence, the respondent suffered a personal injury on 20 May 2019, and this conclusion is consistent with the Member's findings of fact.

1. The respondent refers to the Member's consideration of the nature of the work he performed at [287]-[301] of the reasons "and its contributions to his injuries by reference to the evidence".[86] He argues that it was a matter for the Member to "weigh and address the evidence". In accordance with the approach of Kirby J in Roncevich v Repatriation Commission,[87] it is necessary to avoid an "overly pernickety examination of the reasons" and to focus on the substance of the decision. He refers to Findlay and to Commission cases which follow it.
2. The respondent submitted that there is no basis for the appellant's contention that the Member failed to give adequate reasons for her finding that the respondent's shoulder pain resulted from the same injury as injuries to his neck, back and shoulders.

1. I turn first to the appellant's contention that the respondent suffered personal injury on 20 May 2019. The claim is pleaded as one of aggravation of pre-existing disease in the respondent's spine, shoulders, and left knee by reason of the arduous nature of his employment. It does not allege injury simpliciter. By its Reply, the appellant conceded that the respondent sustained a personal injury to his back and left knee on 20 May 2019 for the purposes of ss 4 and 9A of the 1987 Act.[88] It specifically disputed that the respondent suffered a neck injury on that date. It disputed that he suffered any injury to his neck, right, or left shoulder. It otherwise disputed that the respondent suffered a disease injury. These issues are reflected in the Member's recording of the issues in dispute.
2. It is true that the characterisation of the injury of 20 May 2019 was addressed in a perfunctory way at the arbitration hearing. The appellant submitted that 20 May 2019 was the "first" date of injury.[89] However, given that the respondent earlier submitted that an "event" occurred in 2019, and this resulted in a left knee and lumbar "condition",[90] this is not surprising. The respondent has not specifically addressed this argument in its submissions on appeal. Plainly, the Member accepted that the respondent suffered disease injuries to each of the body parts that she referred to the medical assessor for assessment. She found that the date for each of the injuries was 1 April 2022 in accordance with s 16.
3. There is compelling evidence that the respondent suffered a personal injury to his left knee, on 20 May 2019. The injury to his knee occurred suddenly when he straightened and turned while lifting a heavy weight. The respondent's written evidence as to how the injury occurred is recorded above. The Member unreservedly accepted that evidence. There is no history of previous left knee pain. Following the injury he experienced continuing knee pain. He sought medical treatment, was placed on selected duties, and, ultimately, Dr Keeley performed surgery to the knee.
4. Not all the medical histories are consistent with the respondent's evidence. Dr Soo, for example, has no history of the injury. However, Dr Herald, who the Member accepted, recorded a dramatic incident in which the respondent twisted the left knee and stumbled while carrying a heavy box. Dr Khong recorded a similar history. Dr Chien refers to an "acute" injury to the left knee.[91] There is evidence that the respondent suffered from an underlying asymptomatic condition which is variously described as chondromalacia patellae and arthritis. Dr Powell thought that the effect of the work injury of 20 May 2019 on the degenerative condition was transitory. But the Member rejected that opinion as it conflicted with the balance of the medical evidence and the respondent's evidence of the persistence of symptoms in his knee following the injury.
5. In Military Rehabilitation and Compensation Commission v May[92] the High Court quoted with approval the statement in the joint judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska[93] at [39] (footnotes omitted):

"All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word."

1. Certainly, the Member concluded that what occurred on 20 May 2019 was important. She accepted the respondent's evidence that he suffered pain in the neck and pain radiating to the shoulders as a result of the incident. At [296] of her reasons the Member states:

"An event clearly occurred in May 2019 resulting in injuries to the [respondent's] left knee, lumbar spine, cervical spine and the [respondent] complained of pain and stiffness radiating to both shoulders. On his return to work on restricted duties in February 2022 he experienced increasing symptoms including in his right shoulder." (my emphasis)

1. It is difficult to escape the conclusion that the "event" on 20 May 2019 was a personal injury within s 4(a) of the 1987 Act to the left knee. Section 16 does not apply to a personal injury as it is not an injury which "consists" in the aggravation of a disease. The date of a personal injury is the date or dates of its occurrence. In Rail Services Australia v Dimovski[94] at [68], Hodgson JA said this:

"In my opinion, the decision in Mecha is to be preferred. Section 16 applies only if the injury 'consists in' the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstances that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury 'consists in' the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened."

1. The reasoning in Dimovski was approved and applied by Meagher JA (Ward JA agreeing) in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd at [25]:

"The dispute was whether the injury to the applicant's eye, which undoubtedly occurred on 28 January 2009, also involved a material exacerbation of the cataract condition necessitating the surgery which occurred in June 2009. That dispute was as to the pathology of the injury which the applicant had sustained. In their exchanges the parties did not treat the injury as consisting only in the acceleration of a disease within s 4(b)(ii) and s 16 of the 1987 Act. There was good reason for that. In Rail Services Australia v Dimovski this Court (Handley JA, Hodgson JA and Young CJ in Eq) held, preferring and applying this Court's earlier decision in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; (1998) 45 NSWLR 606, that s 16 applies if the relevant injury only 'consists in' the acceleration or exacerbation of a disease. Where, as in the present case, there is an event causing injury within s 4(a), the circumstance that the injurious event and injury included the aggravation of an existing disease does not mean that the injury, or some part of it, is an injury within s 16: Dimovski at [29] (Handley JA) and [68] (Hodgson JA). Rather the exacerbation or aggravation of the existing disease is part of the pathology of the injury within s 4(a)."[95]

1. The reasoning in Dimovski has frequently been applied by the Presidential Members of the Commission (and its predecessor).[96] The determination whether an injury is a personal injury or one that "consists in the aggravation etc" of a disease for the purposes of s 16, will generally be a matter of fact and degree for the member. But in this case, the evidence of personal injury to the left knee on 20 May 2019 is incontrovertible.
2. It is possible that the respondent also suffered a personal injury to his back on 20 May 2019 although the presence of significant back symptoms before the injury and increasing back symptoms on return to work after the injury must cast doubt on whether there was the requisite physiological change at the time of the incident in 2019. It is more likely, as the Member probably found, that it is simply one of many insults to the respondent's back caused by his employment and, therefore, falls within s 16. The same reasoning applies in respect of the respondent's neck.
3. There remains an issue as to whether the appellant argued at the hearing that the injury to the left knee was a personal injury. I have recorded in [8] above the concession made by the appellant that the respondent suffered a personal injury to his left knee and back on 20 May 2019. However, in argument the appellant did not specifically put that the injury fell within s 4(a) or refer to Dimovski. Parts of the appellant's submissions appear to assume that the injury on 20 May 2019 and subsequent injury were caused by "the nature and conditions" of the respondent's employment. The argument assumed that the critical issue for determination was whether the work which allegedly caused the respondent's right shoulder injuries could be characterised as "the same incident" within s 323(3) as the earlier work. Considering the matters raised in [98] and [99] above I conclude that the issue was appropriately raised at the hearing.
4. The fact that the respondent suffered an injury to his knee on 20 May 2019 does not negate a finding that he also suffered a subsequent deemed injury to the same body parts by reason of the nature of his work. A worker's loss, impairment or incapacity may result from each of several injuries. They are not disentitled merely because they choose to rely only on one of these injuries although caution may dictate that all causative injuries are relied on when pursuing rights to compensation.
5. The respondent suffered an injury to his left knee on 20 May 2019 and an aggravation to that condition caused by his subsequent work. As the Member accepted, it is evident that on his return to work in 2021, he performed arduous work and that the scanning work he performed in March 2022 also aggravated his symptoms. That aggravation is an injury that consists in the aggravation of a disease within s 16.
6. An injury simpliciter to the left knee 20 May 2019 and a subsequent deemed injury pursuant to s 16 to the same knee cannot be assessed together pursuant to s 322(3). They cannot be characterised as "arising out of the same incident" as required by the subsection. Plainly, the principle enunciated in Findlay cannot apply to such injuries. If, however, the respondent suffered the same pathology as a result of each injury, the principles in Department of Juvenile Justice v Edmed[97] require the injuries to be assessed together in accordance with s 322(2) of the 1987 Act. The same result can be reached by applying the ordinary principles of causation. Subject to s 66(1A) of the 1987 Act, multiple injuries to the same body part can give rise to one impairment.[98] In Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd,[99] the following appears at 421:

"Liability to make weekly payments or to pay a lump sum is imposed on any employer liable in respect of any injury which caused or materially contributed to the incapacity."

1. It follows that the personal injury to the left knee on 20 May 2019 and the subsequent aggravation injury of that knee can and should be assessed together. There can be no doubt in this case that both injuries caused, aggravated, or exacerbated the same pathology for the purpose of s 322(2) of the 1987 Act.
2. I do not accept the appellant's argument that the injuries to the respondent's right shoulder were not caused by the same incident as the injuries to his neck, lumbar spine, and left knee. I have earlier referred to the opinion of Dr Chien that respondent's right shoulder injury was caused by a disease process that was consistent with the nature of his employment performing heavy lifting over many years. The damage to the respondent's shoulder commenced well before he experienced symptoms. The injury was caused by his work for the respondent.
3. A similar analysis can also be made of the respondent's back and neck. His symptoms commenced in 2019 after a decade of arduous work. But it is quite clear from his evidence and medical evidence of Dr Khong, Dr Herald and Dr Lim that the respondent's symptomatology worsened while he was performing selected duties in March 2022. Dr Khong stated:

"Mr Arora's ongoing incapacity is the direct result of his employment. His employment was the main contributing factor. He developed neck, back and knee pain as a result of his original workplace injury whilst doing repetitive lifting and twisting. His pain was further aggravated by his return to work. He also developed worsening bilateral shoulder pain after returning to work."[100]

1. This evidence was accepted by the Member. Injuries to the respondent's right shoulder, back, and neck resulted from aggravation of the disease process over many years. It is not possible on the evidence in this case to find discrete injuries to different body parts at different times due to different activities as the appellant contended. The work which caused the respondent's injuries was the same work. There is no error in the Member's finding that his injuries were caused by the "same incident" for the purpose of s 322(3) of the 1998 Act.
2. The appellant referred to the reasoning of Member Isaksen in Safi v Rheem Australia Pty Ltd.[101] While that case also involved a question of aggregation under s 322(3), the outcome turned on the facts of the case. On the facts proven in this case, the respondent's injuries were not caused by discrete activities at different times but by the aggravation of disease processes over the course of his employment.
3. The appellant also submitted that the Member did not give adequate reasons for her conclusion that the respondent's injuries resulted from the same incident in accordance with s 322(3).The adequacy of the reasons of a member of the Commission must be determined by reference to the obligation in s 294(2) of the 1998 Act to provide a "brief statement ... setting out" the reasons for the determination and the requirement of the Personal Injury Commission Rules 2021 (the Rules) to state material findings of fact; to refer to the evidence on which the findings were based; and to the reasoning process that led to the conclusions.[102] The reference to "brief reasons" and the objective of informal and expeditious dispute resolution in the legislation suggests that "adequate" reasons need not be lengthy or consider every aspect of the evidence. The fact that members undertake a large volume of work which frequently entails delivering reasons orally or in writing is also supportive of this conclusion.[103] But as the 1998 Act provides for an appeal, it is essential that the reasons are sufficient to permit a Presidential member to discern whether there is error of fact, law, or discretion. From that perspective, the appellate case law addressing the reasons required of a judge to which the parties referred may provide guidance. But it does not supplant s 294 or the Rules.
4. The Member found that the essence of the respondent's work over many years was lifting and twisting. It was those duties that aggravated disease processes and resulted in his injuries. In the context of the medical evidence in this case, that is an adequate explanation for her finding on this issue. The appellant has not established error in failing to provide reasons.
5. The appellant has been partially successful in its argument that the injury of 20 May 2019 was a personal injury within s 4(a) of the 1987 Act. It fails on the argument that the injuries to the back, neck, right shoulder and the disease injury suffered by the appellant did not result from the same incident.

Ground 3 - Error in finding that the deemed date of injury was 1 April 2022

1. At the hearing the appellant submitted that the deemed date of injury of 25 January 2023 pleaded in the ARD was incorrect. It made a cursory reference to Haddad. It suggested that the first date of injury was 20 May 2019. It made no submission on the appropriate date of any subsequent injury. Oddly, the appellant's submission on appeal does not identify an alternative date of the deemed injury.
2. The respondent argued that there were "potentially two deemed dates of injury",[104] one in 2019 and one in 2022. He submits that the Member made no error in finding that the "first date of incapacity for the aggravation injury in toto was 1 April 2022 when suitable duties were withdrawn."[105] The respondent proposed that if there was error in the Member's determination of the date of injury, the issue should be redetermined:

"on the basis that there ought [have] been two deemed dates, being 20 May 2019 and 1 April 2022 respectively with those dates of injury being aggregated for the purposes of the section 66 claim."[106]

1. I have determined that the respondent suffered a personal injury to his left knee on 20 May 2019. That date cannot be subsumed in a subsequent disease injury fixed by s 16 of the 1987 Act. Otherwise, there is no error in the Member's acceptance of a deemed date of injury on 1 April 2022. As discussed above, there cannot be any doubt that there can be multiple dates of injury and, in some instances, multiple deemed dates.[107]
2. The deemed injury of 1 April 2022 is qualitatively different to the earlier date of injury on 20 May 2019. It reflects the effect of his work on the respondent's back, neck, right shoulder, and left knee. By the date of that injury the respondent undoubtedly suffered a different and more substantial incapacity for work than he suffered at the time of the injury in 2019. The Member made her determination of the date of injury after consideration of the principles in Haddad. It has not been demonstrated that there was error in her analysis of that case or in her determination of the date of injury. This ground of appeal fails.

1. The respondent has succeeded on the appeal in establishing that there is error in respect of the finding of left shoulder injury and that there was a personal injury to the left knee on 20 May 2019. The following orders are made.
   1. There is a finding that the respondent suffered a personal injury to his left knee on 20 May 2019 and a subsequent injury to his left knee pursuant to s 4(b)(ii) deemed to have occurred on 1 April 2022 in accordance with s 16 of the Workers Compensation Act 1987.
   2. There is a finding that the respondent suffered an injury to his lumbar spine deemed to have occurred on 1 April 2022 in accordance with s 16.
   3. The Member's findings that the respondent suffered injury to his cervical spine and right shoulder deemed to have occurred on 1 April 2022 are confirmed.
   4. The injury to the left knee on 20 May 2019 can be assessed together with the injuries to the respondent's left knee, right shoulder, cervical spine, and lumbar spine deemed to have occurred on 1 April 2022 in accordance with s 16.
   5. The Member's determination that the respondent suffered injury to his left shoulder deemed to have occurred on 1 April 2022 is set aside.
   6. The order remitting the matter to the President for referral to a Medical Assessor to assess permanent impairment is revoked.
   7. The matter is reallocated to another non-presidential Member to determine whether the respondent suffered injury to his left shoulder as alleged and, if so, whether that injury can be assessed together with the injuries in [4] above.

[1] Respondent's statement 10/11/22, Reply to Application to Resolve a Dispute (Reply), p 71, [22].

[3] Application to Resolve a Dispute (ARD), p 23.

[7] Arora v Toyota Motor Corporation Australia Ltd [2025] NSWPIC 148 (reasons), [11].

[8] Transcript of proceedings 17 March 2025, p 4.

[10] [2011] NSWWCCPD 65 (Findlay).

[13] [2024] NSWCA 135 (Haddad).

[20] [2024] NSWPIC 513.

[38] Application to Lodge Additional Documents (ALAD) 7 March 2025, p 11.

[48] See Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32 and the cases discussed at [49]-[51].

[49] [2007] NSWCA 16, [12], per McColl JA.

[50] Dunphy v Boney [2010] NSWWCCPD 111, [88], per Keating P.

[51] [2025] NSWCA 157 (Culhana).

[52] [2011] NSWWCCPD 25 (Raulston).

[53] Culhana, [58], per Leeming JA.

[54] [1979] HCA 9; 142 CLR 531.

[55] [2019] HCA 28; 266 CLR 129 (Lee).

[56] [2003] HCA 22.

[58] See the discussion of the applicability of the correctness standard in White v Redding [2019] NSWCA 152.

[59] [2025] NSWCA 229.

[60] [2009] NSWCA 231.

[61] [2013] NSWWCCPD 4 (Bouchmouni).

[62] [2019] NSWWCCPD 53.

[64] Water Board v Moustakas [1988] HCA 12; 180 CLR 491, 498; Whisprun Pty Limited v Dixon [2003] HCA 48, [53].

[65] Appellant's submissions (AS), [14].

[70] [2001] FCA 1833; 117 FCR 424, [28].

[71] Respondent's submissions (RS), [19].

[82] See Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267, per Simpson AJA, [102]-[110] (McColl AP and Payne JA agreeing).

[87] [2005] HCA 40, [64].

[92] [2016] HCA 19.

[93] [2000] HCA 45.

[94] [2004] NSWCA 267 (Dimovski).

**[95] [2014] NSWCA 264.

[96] See, for example, State of New South Wales v Abdul [2018] NSWWCCPD 41, [220]-[223].**

[97] [2008] NSWWCCPD 6.

[98] Trustees of the Roman Catholic Church for the diocese of Parramatta v Barnes [2015] NSWWCCPD 35.

[99] [1994] HCA 68; (1994) 121 ALR 417.

[102] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]-[139].

[103] See the discussion of the obligation of magistrates in Lazicic v Rossi [2024] NSWSC 777, [33]-[38] per Kirk J.

[107] See, for example Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57.