1. Those principles are frequently applied in the Commission.
2. In St George Leagues Club Ltd v Wretowska,[39] Roche DP referred to Spigelman CJ's observation in Vines v Australian Securities and Investment Commission,[40] that where the relevant statutory test turns on the tribunal being satisfied about a matter involving a broad evaluative judgment, then the degree of restraint that the appeal tribunal should manifest should be that applicable to matters of discretion.[41]
3. The above observations are kept in mind in determining this appeal.

Ground One: The Member erred in fact and law by misdirecting himself in relation to the medical evidence

1. The appellant refers to the evidence of Dr Zaki in the form of the clinical entry dated 23 March 2018 and also to Dr Zaki's report dated 29 November 2023. The appellant says that Dr Zaki was "best placed" to provide a history of the left shoulder condition. The appellant does not extrapolate that argument further.
2. The Member identified the deficiencies in the evidence of Dr Zaki, namely that:

(a) the first record of the appellant attending for a consultation with Dr Zaki was some two years after the injury;

(b) Dr Zaki's evidence as to there being a consultation on 5 May 2017 was not supported by a clinical entry of that date, when all of the relevant clinical entries were said to be in evidence;

(c) In Dr Zaki's report, Dr Zaki provided the history that the appellant suffered a sudden onset of lower back pain referred into the left leg. That is, there was no reference to the left shoulder symptoms;

(d) Dr Zaki's diagnosis did not include the left shoulder;

(e) Dr Zaki's expression that the appellant could "possibly" have injured his left shoulder lifting heavy tyres at work and when he was recovering from right shoulder surgery did not "engender confidence" in Dr Zaki's opinion;

(f) a suggestion that the left shoulder symptoms were as a result of the nature and conditions of employment was not pleaded and was to be measured against the extremely short period the appellant worked for the respondent (on the appellant's own evidence, one day);

(g) Dr Zaki appeared to simply accept the opinion of Dr Herald, and

(h) in any event, Dr Zaki did not treat the appellant from the date of the accident in 2011 until 7 September 2018, so that any opinion proffered by Dr Zaki as to what injuries were suffered in the incident were purely speculative.

1. Given that Dr Zaki did not initially treat the appellant and did not treat the appellant until 7 September 2017, I do not accept that Dr Zaki was "best placed" to provide an opinion, and the Member was not in error to conclude otherwise. The Member identified the general practitioner nominated in the Workers Injury Claim Form completed on 2 May 2016 as the appellant's nominated treating doctor (Dr Sabri). As the respondent raised in submissions to the Member, there was no evidence from that medical practitioner. Its absence did not assist the Member in his examination of a causal connection between the injury on 11 November 2015 and the left shoulder, or the right shoulder injury and the development of the left shoulder condition. In those circumstances, it was open to the Member to draw the inference that any such evidence, which could have been called, would not have assisted the appellant.
2. The appellant seeks to rely upon the appellant's poor English skills and lack of knowledge of workers compensation as a sufficient defence to any criticism that there was a lack of complaint to a medical practitioner. The Member was required to determine whether the left shoulder symptoms were referrable to the injury. In that quest, he was entitled to examine the medical records for any supportive clinical note as to when the symptoms arose and in what circumstance, particularly in the light of the appellant's inadequate statement evidence as to the question of whether the symptoms were as a consequence of the right shoulder symptoms. It is difficult to see how the appellant's lack of skills in English or his ignorance of workers compensation would impact on his ability to attend a medical practitioner about his injury, which he clearly did, at a time more temporally connected with the date of injury.
3. The appellant submits that there was no basis for the Member to draw the inference that the earlier evidence would not have assisted the appellant. For the above reasons, the submission is rejected.
4. The appellant refers to the Member's reasoning that there was no clinical record of the left shoulder symptoms arising from overuse. The appellant points to the entry in Dr Zaki's notes recorded on 27 November 2017.
5. The clinical note of that consultation was extensive.[42] Dr Zaki noted that the appellant had returned for a further check-up in relation to his upper and lower back and neck work-related injury. He recorded spasm of the upper trapezius and of the "verteb. m.s". Symptoms relating to lower back pain were also recorded. He noted that the appellant was experiencing "upper back and neck pain on any freq[uent] use of his shoulder or unexpected sudden neck movements." That was the only reference in the clinical note of any shoulder condition. If taken in the context of the notes of the prior consultation on 10 November 2017, in which the appellant complained of left shoulder symptoms over the "last several days worse a bit [lately]" and the appellant was "feeling increased left shoulder pain lately,[43] it can reasonably be assumed that the reference to shoulder pain in the notes recorded on 27 November 2017 was probably a reference to "left" shoulder symptoms. Even then, it is difficult to see how the clinical note is probative evidence of the appellant having suffered an injury to his left shoulder in the 2015 incident or developed symptoms in the left shoulder as a consequence of the right shoulder condition. The submission does not support the assertion that the Member erred either in fact or law by misdirecting himself in relation to the medical evidence.
6. I reject the notion put forward by the appellant that the reference to symptoms in the left shoulder at consultations on 29 September 2017, 10 November 2017 and 27 November 2017 was sufficient to establish that the "path of caution [sic, causation], with respect to the consequential injury, is sufficiently clear."[44] Those entries do not provide any evidence of a causal connection between the right shoulder injury and the left shoulder condition and do not disclose that the Member's reasoning was flawed.
7. The appellant challenges the Member's reasoning that the appellant's statement did not provide support for "an overuse injury". The appellant refers to various paragraphs from the appellant's statement (summarised at [72] above) and submits that the appellant was not required to use the "legal definition" of the terms 'overuse' or 'consequential condition.' The appellant asserts that those paragraphs were unchallenged, they demonstrate that the appellant suffered overuse as a result of the right shoulder condition, and that the Member ignored that evidence.
8. While the evidence of the appellant was "unchallenged," the Member gave reasons as to why he considered that the appellant's evidence was unreliable. The evidence was limited to that of the appellant's left arm symptoms and did not go so far as to mention that the appellant was performing more activities with his left arm because of his right arm injury. The only reference to the right shoulder was the appellant's statement that he attributed his left shoulder symptoms to radiating pain from his right shoulder. That evidence is suggestive of another cause of the left arm symptoms, that is that it was referred pain from the right shoulder, not pleaded or addressed by medical evidence and not sufficient to establish any connection between the left shoulder condition because of favouring the right arm.
9. The assertion that the Member ignored the appellant's evidence has no basis. The Member evaluated the appellant's statement evidence at [113] of his reasons, explaining why he did not find the evidence reliable. In any event, the paragraphs relied upon by the appellant are not probative evidence of the appellant favouring his right shoulder, causing left shoulder symptoms.
10. The appellant asserts further error on the part of the Member by the Member failing to afford sufficient weight to the evidence of Dr Herald when Dr Herald used the phrase "over the years." The Member dealt with the evidence from Dr Herald at [99]-[100] of his reasons. He reasoned that:

(a) Dr Herald was not consulted until 25 June 2018 (about three years after the accident) and at that time there was no mention of left shoulder symptoms;

(b) the first history of left shoulder symptoms recorded by Dr Herald was on 25 May 2022, and the history was that the appellant's left shoulder symptoms were getting worse over the last few years;

(c) Dr Herald did not identify when he was first made aware of the left shoulder symptoms;

(d) the reference to the symptoms worsening "over the last few years" was unhelpful, and

(e) the first investigations of the left shoulder were not conducted until 2 June 2022, a significant time after the injury and the right shoulder surgery.

1. The appellant's only complaint about the Member's treatment of Dr Herald's evidence was that the Member found the phrase "over the years" unhelpful. Even if the use of that phrase somehow led the Member from the path of reason, the appellant does not criticise the additional reasons the Member gave for placing little weight on the evidence of Dr Herald. The Member's assessment of Dr Herald's opinion on the basis of those reasons was open to him and the appellant's assertion that the Member erred in the manner described is not made out.
2. The appellant submits that the Member erred by considering that the only support for Dr Herald's view that the left shoulder symptoms arose as a consequence of overuse came from Dr Conrad. The appellant maintains that the clinical notes were supportive of the notion. As discussed, the clinical notes did not go so far as to record favouring of the right shoulder or overuse of the left shoulder before and after the right shoulder surgery. They simply recorded symptoms commencing in 2017, with no potential cause identified. The Member did not ignore the clinical records in coming to his conclusion that Dr Conrad's evidence was the only medical support for Dr Herald's opinion on causation.
3. The appellant raises no challenge against the Member's treatment of the evidence of Dr Conrad or Dr Bodel.
4. The appellant's assertion that the Member erred in fact or law by misapprehending the medical evidence, ignoring Dr Herald's opinion and ignoring the references to symptoms in the left shoulder recorded in the clinical notes is not made out.

Ground Two: The Member erred in fact and law by misdirecting himself by incorrectly applying s 9A of the 1987 Act

1. A significant part of the appellant's submissions made under this ground of appeal raise matters that do not fall within the ambit of the application, or misapplication of s 9A of the 1987 Act. Those submissions are discussed below.
2. Relevant to this ground of appeal, the appellant submits that in the arbitration, he made submissions to the Member in relation to the factors that were relevant to a determination that the employment was a substantial contributing factor to the injury. The appellant criticises the Member for taking a "strict approach" to Dr Machart's opinion, which he says is not appropriate when dealing with s 9A. The appellant further complains that the Member failed to address the factors set out in s 9A, and took s 9A into account when it was not necessarily relevant to determining whether the treatment is necessary.
3. Firstly, s 9A is only relevant to an injury and not to a consequential condition. Secondly, the Member determined that the appellant had failed to establish that he suffered an injury to his left shoulder on 11 November 2015. In the absence of an injury, s 9A does not require consideration. It is therefore immaterial that the Member paid little attention to s 9A and did not consider the factors that are relevant. Any consideration of s 9A in those circumstances, even if erroneous, could not have affected the outcome. Section 352(5) requires that an appeal is limited to a determination of whether the decision appealed against "was or was not affected by any error". Because the Member did not find in favour of the appellant in respect of the question of injury there was no error on the part of the Member in relation to s 9A of the 1987 Act.
4. The appellant's remaining submissions do not fall within either Ground One or Ground Two of the identified appeal grounds, which is totally unsatisfactory. In any event I will address those submissions.
5. The appellant also asserts that the Member erred in:

(a) failing to consider Kooragang;

(b) failing to apply Murphy, and

(c) misconstruing the delay in making the claim by treating it as indicative of the appellant having not suffered an injury to his left side in the incident in 2015.

1. Paragraph [120(c)] is dealt with under Ground One. The Member did not find against the appellant because of the delay in reporting his symptoms. He determined the matter on the absence of evidence to support the connection between the left shoulder symptoms and the appellant's employment and that there was no contemporaneous medical evidence which might have clarified the onset of symptoms.
2. The appellant asserts that the Member failed to take into account Kooragang. In this case, Kooragang does not assist the appellant. Each case must be determined on its own facts. As Kirby P explained, "[i]f the chain is unbroken and provides the relevant causative explanation ..." it will be open to the Court to find in the worker's favour. His Honour added that the question to be answered is a question of fact and:

"... to be determined on the basis of the evidence, including, where applicable, expert opinions. ... a point will sometimes be reached where the link in the chain of causation becomes so attenuated that ... it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection."[45]

1. In this case, the Member was not satisfied that there was sufficient medical and factual evidence to explain the causal connection. There was thus a want of sufficient connection between the injury and the left shoulder injury or condition. The Member did not err in so concluding.
2. Lastly, the appellant asserts that, applying Murphy, an injury can have multiple causes, and the Member failed to grapple with that fact. The appellant says that there was no other competing cause for the left shoulder symptoms.
3. It is true that an injury can have competing causes, but in this case, there was insufficient probative evidence to establish any particular cause. The appellant's submission that the Member erred by failing to consider Murphy is rejected.

1. The appellant's allegations of error pertain solely to the Member's factual findings. Applying the principles set out in Lee, for the appellant to succeed in establishing that the Member erred in law he must establish that there was no evidence which, if believed, would support the Member's finding. As discussed above, there was evidence upon which the Member's findings were based. The appellant cannot succeed in establishing an error of law.
2. In order to establish factual error on the part of the Member, the appellant must show that the Member overlooked or gave undue or too little weight to the evidence in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the Member was in my view so preponderant that the decision was wrong.[46] The conflict in the evidence relied upon by the Member provided a sound basis for his conclusion that the appellant had not made out his case. The appellant has failed to establish that the Member overlooked or afforded too little weight to material evidence and there was no preponderance of contrary evidence that discloses that the Member was wrong. Grounds One and Two of the appeal fail.
3. The Member's Certificate of Determination is therefore confirmed.

1. The Member's Certificate of Determination dated 30 July 2024 is confirmed.

[1] Application to Resolve a Dispute (ARD), pp 1-4.

[14] Zahrouni v BSV Tyre Recycling Australia Pty Ltd [2024] NSWPIC 409 (reasons), [96].

[19] Appellant's statement, [13]-[14].

[21] [2011] NSWWCCPD 25 (Raulston).

[28] [2015] NSWWCCPD 49 (Murphy).

[29] [2012] NSWWCCPD 8.

[30] (1994) 35 NSWLR 452 (Kooragang).

[31] [2018] NTCA 7 (Lee), [15].

[33] [2008] NSWCA 175 (Najdovski).

[35] [2001] FCA 1833 (Branir).

[38] (1966) 39 ALJR 505 (Whitely Muir).

[39] [2013] NSWWCCPD 64, [145]-[148].

[40] [2007] NSWCA 126 (Vines).