DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	ISS Property Services Pty Ltd v Bosevska [2022] NSWPICPD 34	
		
APPELLANT:	ISS Property Services Pty Limited	
		
RESPONDENT:	Slavica Bosevska	
		
INSURER:	Self-insured	
		
FILE NUMBER:	A1-W2200/21	
		
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood	
		
DATE OF APPEAL DECISION:	23 August 2022	
		
ORDERS MADE ON APPEAL:	1.	The Certificate of Determination dated 19 October 2021 is revoked.
2.	The Matter is remitted to a different non-presidential member for re-determination.	
		
CATCHWORDS:	WORKERS COMPENSATION – failure to lodge a Notice of Opposition to the appeal – failure to deal with an issue raised – failure to take into account evidence in determining the nature and date of the injury	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr T Murray, solicitor	
	Integroe Partners	
		
	Respondent:	
	Mr C Chidiac, solicitor	
	Prominent Lawyers	
		
DECISION UNDER APPEAL		
		
MEMBER:	Mr C Burge	
		
DATE OF Member’s DECISION:	19 October 2021	

INTRODUCTION AND BACKGROUND
1.	Ms Slavica Bosevska (the respondent) was employed by ISS Property Services Pty Limited (the appellant) at the University of New South Wales as a cleaner. She commenced that work on 1 February 2014. 
2.	The respondent alleged that she injured her right knee in the course of her employment while pulling bins to the bin area. An Incident Report was completed on 8 December 2014, indicating that the respondent had injured her knee on 3 December 2014 and had reported the incident to Mr Tommy Stefanovski (also referred to as Tome), the workplace supervisor, on 5 December 2014. The injury description was that the respondent was “taking full bins across to the bin area and felt cramp on right knee.” The respondent ceased work on 9 January 2015 and lodged a claim for compensation for weekly payments and treatment expenses on 19 January 2015. The injury claim form did not specify a date of injury, but indicated that the respondent first noticed the injury on 29 November 2014 and reported it to “Tommy” on that day. 
3.	By notice dated 9 February 2015 issued pursuant to the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), liability for the alleged right knee injury was disputed on the basis that:
(a)	the respondent did not suffer an injury to her right knee in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act) on the date alleged or in the circumstances described;
(b)	the respondent’s employment was not a substantial contributing factor to any injury (s 9A of the 1987 Act), or 
(c)	if the injury was alleged to be a disease injury within the meaning of s 4(b) of the 1987 Act, the respondent’s employment was not the main contributing factor to the disease or aggravation of the disease. 
4.	The respondent made a further claim for compensation on 31 March 2021, in which she claimed a lump sum in respect of the whole person impairment of her right lower extremity and scarring resulting from surgery to her right knee in September 2015. She cited the date of injury as 3 December 2014. On 2 June 2021, the appellant disputed that claim on the same basis that the earlier claim was disputed. The appellant also disputed the extent of the permanent impairment claimed. 
5.	The respondent lodged proceedings in the Personal Injury Commission (the Commission), nominating the injury as a “personal” injury and the date of injury as 3 December 2014. The matter proceeded to arbitration before a Member of the Commission. Prior to the commencement of the arbitration, the respondent amended the pleadings to allege the date of injury to be “on or about” 3 December 2014. The Member determined that the respondent suffered an injury to her right lower extremity (knee) in the course of her employment with the appellant on or about 3 December 2014. He referred the claim for lump sum entitlements in respect of the right lower extremity and post operative scarring to the President of the Commission for referral to a medical assessor for assessment of the whole person impairment.
6.	The appellant appeals the decision.
PRELIMINARY MATTERS
The failure to file a Notice of Opposition to the appeal
7.	The appeal was lodged on 15 November 2021. The respondent was directed to file her Notice of Opposition to Appeal Against the Decision of a Member (opposition) by 17 January 2022. An opposition was not filed within that time.
8.	On 18 January 2022, the Commission contacted the respondent’s legal representatives (Prominent Lawyers), who had represented the respondent in the proceedings before the Member, requesting that they indicate by 20 January 2022 whether the respondent intended to file an opposition. No response was received by the Commission. The Commission contacted the respondent’s legal representatives by telephone and by email on 24 January 2022 and again on 27 January 2022. The Commission was advised by Prominent Lawyers on 24 January 2022 that the firm continued to act for the respondent. No response was received by the Commission in relation to the respondent’s attitude to the appeal or to the respondent’s intentions.
9.	On 29 June 2022, the appeal was allocated to me for determination. On 30 June 2022, I issued a Direction, directing the respondent’s legal representatives to confirm by 7 July 2022 whether they did, or did not, act for the respondent in the appeal and whether the appeal was opposed. The legal representatives did not respond to the Direction.
10.	On 12 July 2022, the Commission wrote directly to the respondent, advising her of the above matters. The respondent was requested to advise by 22 July 2022 whether she intended to oppose the appeal and if so, the details of her legal representative. On 18 July 2022, Mr Christopher Chidiac of Prominent Lawyers wrote to the Commission in the following terms:
“We refer to the letter dated 12 July 2022 and confirm we retain instructions to act on behalf of the Claimant in these proceedings. The Claimant has confirmed an intention to provide a Notice of Opposition if permitted.
Accordingly, please confirm if the Claimant is still permitted to serve a Notice of Opposition in the above proceedings, and if so, what [is] the allowed timeframe for the Claimant to serve the notice?”
11.	The legal representative did not give any explanation as to why there was a failure to respond to the Direction issued by me on 30 June 2022 or to the Commission’s repeated enquiries. The Commission responded to Mr Chidiac, advising that the time for lodgment of the opposition expired on 17 January 2022, the matter had been allocated to me for determination, and any application for an extension of time to lodge an opposition would require an explanation for the delay. No further communication from the respondent’s legal was received by the Commission by 9 August 2022. I therefore formed the conclusion that it was appropriate to proceed to determine the matter, noting that the respondent opposed the appeal but made no submissions. 
12.	Section 352(5) of the 1998 Act provides that:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error.”
13.	In circumstances where the appeal is opposed but there is an absence of submissions in opposition to the appeal, I am still required to be satisfied that the decision is affected by error as described, and I am therefore required to assess the appeal on its merits. 
Whether the decision is an interlocutory decision
14.	The appellant submits that, in the event that the decision of the Member is considered to be an interlocutory decision, then, in accordance with Campbelltown Tennis Club Ltd v Lee, leave to appeal should be granted. 
15.	Subsection 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by a Member”. A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
16.	The meaning of “interlocutory” in subs 352(3A) is undefined.
17.	In Licul v Corney, Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” 
18.	The observations of the High Court as to what constitutes an interlocutory order provide some guidance but need to be considered in the context of the legislative and procedural framework of the Commission. In the matter of Edmund Diab v Salem Naji, a matter factually similar to this matter, Roche DP determined:
“The Arbitrator’s order concerning remitter has been made following his determination of a question concerning liability, that is, the occurrence of injury to both the neck and back. The determination of those issues was made as required by the provisions of section 293(3) of the 1998 Act ... 
The Arbitrator’s determination concerning the dispute as to the nature of the injury received by Mr Naji is such that, in the words of Gibbs J, it does ‘... finally dispose of the rights of the parties.’ Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. The Appellant, on this appeal, challenges those findings of fact made by the Arbitrator concerning injury. In the circumstances, I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).”
19.	On the same basis, I consider that the decision made by the Member in this matter that the respondent suffered injury as alleged is a conclusive and binding finding that defines the rights and liabilities of each party. The decision appealed against is therefore not interlocutory in nature and the appellant does not require leave to appeal the decision. 
On the papers
20.	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.”
21.	The appellant indicates that it is content for the appeal to be determined on the papers. 
22.	I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the appellant that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
Threshold matters
23.	The threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. 
THE EVIDENCE
The respondent’s statement evidence
24.	The respondent provided a statement dated 27 January 2015. She stated that she commenced work with the appellant as a cleaner on 1 February 2014. She described her duties, which included pushing 240 litre capacity bins on wheels to the food court, into which she would empty twelve smaller 120 litre capacity bins and then return the large bins to the bin area. She stated that, in an average day, she would empty between 40 to 50 of the smaller bins.
25.	The respondent referred to the alleged injury and said that she could not remember the date of the injury but recalled that it occurred in late November 2014. She added that on the day of the injury she was fit and well and had no symptoms in her right knee. She described the work area where she would have to pull the bins, including a sloping ramp of about 15 metres in length. The respondent stated that on the day of the injury she experienced a sharp pain in her right knee while walking up the ramp. She said that she continued to work that day while experiencing spasmodic sharp pain in the knee. She indicated that she did not report the injury because she thought that it would resolve. 
26.	The respondent advised that on 29 November 2014, she consulted Dr Camille Awada, her treating general practitioner, who arranged x-rays of her knee and administered a cortisone injection, which did not relieve the pain. The respondent said that she continued to work, performing her normal duties, but was experiencing worsening pain. She advised that she took annual leave from 20 December 2014 until 4 January 2015, during which time she rested her knee, but the pain intensified and became more frequent. She returned to work and worked from 5 January 2015 to 9 January 2015.
27.	The respondent referred to her workers compensation claim form, which nominated the date of injury as 29 November 2014. The respondent indicated that the date nominated must have been incorrect because that day was a Saturday and she only worked from Monday to Friday. She added that the date of injury on the Incident Report form (3 December 2014) was also incorrect because she sought treatment on 29 November 2014 and 1 December 2014. She reiterated that she could not recall the date of the injury or the conversation between her and her supervisor when she reported her injury. The respondent stated that on 15 January 2015, Dr Awada certified her as having no work capacity. 
28.	The respondent provided a further statement dated 1 February 2018. She confirmed that she was employed by the appellant in February 2014, on a full-time basis as a cleaner. She indicated that after she commenced, she had three months off work on sick leave, returning to work in October 2014.
29.	The respondent provided a consistent description of her duties. She stated that in late November 2014, she began to experience pain in her knees because of the constant pushing, pulling and bending required in her job. She said she recalled the incident when she was walking up a ramp with the 240 litre bin in order to empty it, and experienced sharp pain in her right knee. She confirmed that she did not report the incident as she thought it was temporary muscular pain. 
30.	The respondent indicated that the pain worsened and she had difficulty sleeping, so that on 29 November 2014 she consulted her general practitioner, Dr Camille Awada. She stated that she developed a limp, which caused symptoms in her left knee and back. 
31.	The respondent said that Dr Awada referred her for scans of her right knee. The respondent said she consulted Dr Awada again on 10 January [2015]. She advised that Dr Awada certified her as unfit for work and referred her to Dr Zoltan Szomor, who performed arthroscopic surgery on the right knee on 10 September 2015, following which there was some improvement in the symptoms. 
32.	The respondent described the ongoing treatment she received for her knee and the difficulties she had experienced since 29 November 2014.
Statement of Mr Mark Germano
33.	Mr Mark Germano was the appellant’s Site Manager from 19 January 2015. Prior to that date, he was the respondent’s Customer Service Manager. He provided a statement dated 28 January 2015.
34.	Mr Germano confirmed that the respondent’s duties included emptying the plastic bags from the 120 litre garbage bins into the larger 240 litre bins. He said that the respondent was not required to constantly bend and lift, the heaviest lifting was 10 kilograms of rubbish, and the large bins had four wheels and were easy to push.
35.	Mr Germano stated:
“My first knowledge of [the respondent] claiming to have been injured was in mid-December 2014 [when] she approached me in the Food Court and she told me that she had a sore knee. I asked her how she injured herself and she said that she did not know how she did it and she did not know if she sustained the injury at work or at home. She said that she needed help to move the bins around as her knee was sore. I organised another cleaner to move the bins around for her. The transportation of the bins was the moving of the 240 litre bins as the other 120 litre bins are only slightly moved in order to empty them. I told her that she needed to see a Doctor and speak to Tome if she needed any further assistance. She was very vague in detail.”
36.	Mr Germano said that the first he heard of the respondent’s claim was on 12 January 2015, when the respondent attended the workplace and handed him a letter from her doctor advising that she was unfit for work and that the injury was work-related. 
The Incident Report form 
37.	An Incident Report – Initial Notification form dated 8 December 2014 was in evidence. The person nominated as reporting the injury was Mr Tommy Stefanovski and the date of injury was entered as 3 December 2014. The description of the injury was recorded as “Cleaner was taking full bins across to the bin area and felt cramp on right knee.”
The Worker’s Injury Claim Form
38.	The Worker’s Injury Claim Form completed on 19 January 2015 and signed by the respondent was also in evidence. The document recorded that the respondent first noticed the right knee condition on 29 November 2014 and that she reported the incident to Mr Stefanovski on that day. The task the respondent was undertaking at the time of the incident was described as “Pulling Full 240 LT Bin to the bin station. (area)”.
Certificates of Capacity
39.	WorkCover Certificates of Capacity issued by Dr Awada were annexed to the ARD. The first certificate, which was dated 15 January 2015, indicated that the respondent first presented for treatment on 29 November 2014. The date of injury was recorded as 3 December 2014 and described as a right knee meniscal injury with chondral degenerative changes. The injury was said to be related to the respondent’s employment because of the “nature of the work which involved prolonged walking, standing, pushing, pulling of bin.” A further certificate issued on 2 February 2020 recorded the same diagnosis, but the date of injury and its relationship to employment were absent.
Dr Camille Awada, General practitioner
40.	Dr Awada’s clinical notes were in evidence. On 29 November 2014, Dr Awada recorded the respondent’s complaints of right knee pain, which was worse with walking, with a notation of “one week” and “no trauma”. The respondent attended Dr Awada again on 3 December 2014 for review of an x-ray that Dr Awada had arranged. The respondent again attended complaining of right knee pain on 9 December 2014 and 30 December 2014. The history recorded on 30 December 2014 was of right knee pain which was worse. Dr Awada noted that the respondent’s employment was physically demanding leading to further trauma.
41.	Dr Awada provided a medical report dated 23 June 2018 at the request of the respondent’s legal representative. She confirmed that the respondent had presented on 29 November 2014 complaining of right knee pain which was worse with walking and climbing stairs, associated with giving way of the knee and nocturnal pain. Dr Awada advised that the respondent reported that her employment was very physically demanding and involved pushing and pulling heavy loads.
42.	Dr Awada advised that the respondent presented again on 30 December 2014 (wrongly recorded as 2018), complaining of worsening right knee pain from pulling a heavy bin up a ramp at work. Dr Awada was of the view that the pathology revealed on the MRI scan indicated that the injury had developed over a period of time and the incident on 30 December 2014 was the “tipping point” that revealed the extent of the damage that had occurred over several months. Dr Awada added that the respondent had no previous history of right knee symptoms so that the condition was not an aggravation of a pre-existing condition. 
Dr Geoffrey Rosenberg, orthopaedic surgeon 
43.	Dr Awada referred the respondent to Dr Geoffrey Rosenberg. Dr Rosenberg reported to Dr Awada on 4 February 2015. He recorded a history of the respondent developing sharp pain in her right knee while carrying heavy bins up a ramp in the course of her employment. He noted that her symptoms had not improved and that she had ceased work three weeks previously. He confirmed that the radiological investigation showed degenerative pathology and recommended an arthroscopy. 
44.	Dr Rosenberg’s patient information sheet was also in evidence. It recorded the date of injury as 3 December 2014.
Dr Zoltan Szomor, orthopaedic surgeon
45.	The respondent was referred by Dr Awada to Dr Zoltan Szomor. Dr Szomor reported to Dr Awada on 13 May 2015. He recorded the history of right knee problems since December 2014 “without an initiating event. Gradual onset of pain in the right knee.” 
Radiology 
46.	Numerous radiological investigations were annexed to the ARD which bore no relevance at all to these proceedings.
47.	An MRI scan of the right knee dated 6 January 2015 reported extensive chondral wear in the medial compartment of the knee and extensive degenerative pathology in the medial meniscus, with meniscal tears, as well as medial cruciate ligament bursitis.
Dr Andrew Porteous, occupational physician
48.	Dr Andrew Porteous was requested by the respondent’s legal representatives to assess the respondent’s right knee condition and provide an opinion. Dr Porteous reported to the respondent’s legal representatives on 16 March 2021. He took the history that the respondent’s duties included lifting garbage bags from smaller bins and placing them into a large 240 litre bin on wheels and then wheeling the large bin to the bin area. He noted that, if the bin on wheels was light, she was able to pull it with one hand but if it was heavy, she required the use of both hands. He added that the respondent was required to perform this work a number of times each day and that it included walking down a slope and up a slight incline. 
49.	Dr Porteous recorded that at the end of November or in early December 2014, the respondent was pulling a moderately sized bin up the ramp with her right hand when she experienced a sharp pain in the right knee and upper foreleg area. He noted that the respondent did not report the injury, continued working, but experienced ongoing pain causing her to limp. 
50.	Dr Porteous referred to the respondent’s attendance on Dr Awada, Dr Rosenberg, and Dr Szomor, as well as the treatment provided, which included an arthroscopy on 10 September 2015 and a total knee replacement performed by Dr Szomor in September 2020.
51.	Dr Porteous reviewed the radiological evidence and acknowledged that the respondent consulted Dr Awada about her right knee on 29 November 2014, which was the date recorded on the Injury Claim Form. He noted that Dr Awada recorded in the clinical notes that the respondent had been experiencing knee pain for about one week prior to the consultation. 
52.	Dr Porteous took a history of the ongoing symptoms and the effect those symptoms had on the respondent’s activities of daily living. He also recorded the history of prior knee symptoms in 2009, which resolved after a short period of time and that the respondent could not recall any symptoms in the right knee immediately before this injury. He performed a physical examination and assessed the respondent’s whole person impairment.
53.	Dr Porteous observed that on 10 September 2015 the respondent underwent a medial meniscectomy in order to address a medial meniscal tear, and a total knee joint replacement in September 2020 because of significant ongoing pain. Dr Porteous diagnosed the injury as an aggravation of pre-existing age-related degenerative change in the right knee and a medial meniscal tear. He said that the respondent very clearly asserted that she experienced an increase in knee pain, described as sharp pain, as a result of the incident pulling a large heavy bin on or about the end of November 2014 and that her knee remained very symptomatic after that incident. Dr Porteous assessed the respondent’s capacity for work and need for future treatment. He concluded that the respondent’s employment was the substantial and the main contributing factor to the aggravation, acceleration, deterioration and exacerbation of the respondent’s right knee osteoarthritis. He opined that the incident caused an acceleration of the condition and brought forward the requirement for a knee replacement. He considered that there should be a one-tenth deduction in respect of the respondent’s whole person impairment to account for the respondent’s pre-existing changes and/or abnormalities in the right knee, resulting in a total 28% whole person impairment.
Dr David Wilcox, consultant surgeon and trauma specialist
54.	Dr David Wilcox was qualified by the appellant’s legal representatives to provide an opinion in respect of the respondent’s right knee condition. Dr Wilcox first reported to the appellant on 28 March 2015. He described the respondent’s duties, which included emptying the garbage bins and required her to pull the bin on wheels up a slight ramp using both hands if the bin was heavy. Dr Wilcox recorded the details of the incident relied upon as being causative of injury, which the respondent said occurred towards the end of November 2014. He noted that the respondent was pulling the bin up a slight ramp using only her right hand, when she felt a sudden sharp pain in the right knee. He added that the respondent said that there was no twisting or slipping involved and that the respondent was unaware of what caused the onset of pain.
55.	Dr Wilcox recorded the history that the respondent continued to work for several days on normal duties before consulting Dr Awada, and continued to perform her normal duties until 9 January 2015, albeit with increasing pain. He said that from that date, the respondent ceased work.
56.	Dr Wilcox noted the respondent’s symptoms and difficulties and performed a detailed physical assessment. He reviewed the radiological evidence. Dr Wilcox observed that the respondent was very specific about the onset of symptoms but there was some confusion as to the date of injury. He said that the clinical notes recorded by Dr Awada on 29 November 2014 suggested that the symptoms arose on about 20 November 2014 and the first time Dr Awada connected the worsening symptoms to the respondent’s work duties was on 30 December 2014, after the respondent had been off work for 11 days.
57.	Dr Wilcox discussed the radiological evidence, which he said showed long-standing, advanced degenerative disease in the right knee. He considered the description of the respondent’s activity at the time of the onset of symptoms and the fact that the respondent continued to perform her usual duties. He said that this evidence strongly suggested that any discomfort experienced by the respondent at that time was minimal. He noted that the respondent’s recollection, the x-ray performed on 29 November 2014 and the clinical notes indicated that there was no swelling in the knee at the time of the first consultation. Dr Wilcox said that a strain sufficient to cause anatomical change such as a meniscal tear would invariably cause swelling, which indicated that the swelling appeared at sometime between the first and second consultation. He indicated that Dr Awada noted medial swelling at the second consultation, yet Dr Rosenberg recorded no swelling of the knee. Dr Wilcox opined that temporary swelling was typical of a symptomatic degenerative knee. 
58.	Dr Wilcox formed the view that the degenerative change in the respondent’s right knee had progressed to the stage that it was going to become symptomatic, and that because the first occurrence of pain was not associated with trauma or unusual strain, the onset was coincidental. He added that the onset could equally have happened at home or some other place and the worsening of symptoms that occurred outside of the workplace indicated that the appellant was not responsible for the further treatment, including the proposed arthroscopy. He thought that the proposed arthroscopic procedure was reasonable treatment. 
59.	Dr Wilcox opined that the respondent suffered from advanced degenerative pathology in her right knee, which was constitutional and not caused by the injury. He concluded that the major contributing factor to her pathology and symptoms was the pre-existing and progressive degenerative disease, and not the respondent’s employment. He said that the onset of symptoms did not constitute an aggravation of the disease and it merely “happened at work.” 
60.	Dr Wilcox re-examined the respondent and provided a further report dated 11 May 2021. He noted that the respondent’s symptoms had increased over the five years since he had last seen her, despite the fact that she had not been working and lived a sedentary lifestyle. He further noted that the respondent felt that the arthroscopy and subsequent total knee replacement proved to be of no benefit and that the respondent’s worsening symptoms included more swelling and occasional giving way of the knee when walking.
61.	Dr Wilcox reviewed the radiology and the findings recorded during the arthroscopy. He further reviewed the clinical history and assessed the respondent’s ongoing symptoms. He reiterated that the sequence of events was not consistent with a specific workplace aggravation of the pre-existing degenerative disease and the respondent’s duties were not a substantial contributing factor to the development of the condition.
62.	Dr Wilcox referred to published research studies in relation to osteoarthritis of the knee which indicated that the work the respondent had been performing over the seven months leading up to the onset of symptoms was not causative of the development of the respondent’s knee disease. Dr Wilcox also referred to the evidence from Dr Awada who, he said, accepted that the onset of symptoms in mid-November 2014 was attributable to the disease and not an injury. He reiterated that the respondent’s employment was not a substantial contributing factor to the development of the advanced osteoarthritic condition in her right knee and that the progression of the symptoms was consistent with the disease process.
63.	Dr Wilcox considered that the nominated date of injury of 3 December 2014 could not be accepted in the face of the contemporaneous records. He opined that, if there was a symptomatic exacerbation, the main contributing factor was the advanced underlying degenerative disease which would have become symptomatic at any time. He added that the total knee replacement did not result from any work-related injury. 
THE MEMBER’S REASONS
64.	The Member described how the injury was said to have occurred and noted that the respondent reported the injury on 8 December 2014, nominating the date of injury as 3 December 2014. The Member referred to there being some confusion as to the precise date of injury. He observed that he did not consider that anything turned on the uncertainty about the precise date of injury. The Member recorded the issues requiring determination, noting that the appellant disputed that:
(a)	the respondent suffered an injury within the meaning of s 4 of the 1987 Act;
(b)	the respondent’s employment was a substantial contributing factor to any injury in accordance with s 9A of the 1987 Act, and
(c)	if the injury was a “disease” or aggravation of a disease within the meaning of s 4(b) of the 1987 Act, the respondent’s employment was the main contributing factor to the disease or the aggravation of the disease.
65.	The Member recorded the respondent’s description of how the injury occurred. The Member noted that the respondent referred to the pain as being “off and on,” and that she thought it would resolve. He further noted that the respondent did not report it that day but consulted her general practitioner because the pain persisted. He further noted that the respondent was given a cortisone injection on 7 December 2014, which was of little benefit.
66.	The Member referred to the submissions made by both parties, including the appellant’s submission that for an event to constitute an injury, it requires both an injurious event and a pathological change. The Member also referred to the clinical notes of the general practitioner, which recorded knee pain on 29 November 2014 and made no reference to any work-related incident on that date. The Member observed that the appellant did not submit or provide evidence that anything of significance turned on the precise date of injury, but also observed that the respondent bore the onus of proving her injury. He referred to various authorities dealing with the requirement that for there to be an injury, there must be a sudden and identifiable pathological change.
67.	The Member noted the appellant’s submission that the history recorded by Dr Porteous about there being a frank incident was not evident from the radiological investigations. The Member quoted from the history recorded by Dr Porteous. He said that “[t]he radiological reports in the matter confirm the findings as recorded by Dr Porteous.”
68.	The Member further noted the appellant’s submission that there was little to indicate that a traumatic injury had occurred and, if there was any injury, it would be more akin to an aggravation of an underlying degenerative process, which was not pleaded. The Member said that the Commission is not a court of strict pleading. Further, the appellant had been served with the report of Dr Porteous so that the appellant was well aware of the medical basis of the respondent’s claim. The Member added that Dr Wilcox was also provided with a copy of Dr Porteous’s report. The Member quoted from Dr Wilcox’s conclusions that the sequence of events did not point to any specific work-related aggravation of a pre-existing disease in the right knee and that the respondent’s work duties would not have been a substantial contributing factor to the development of the disease process. 
69.	The Member considered that the evidence from the respondent’s statements as to how the injury occurred was not contradicted by any eye-witness account showing that the injury did not occur, apart from Mr Germano’s statement. The Member said that he rejected the evidence of Mr Germano because it contradicted the appellant’s Incident Report form dated 8 December 2014, was inaccurate and was not consistent with the manner in which the injury occurred, as described in that report. The Member added that the claim form dated 19 January 2015 also provided a consistent description of injury, despite nominating a date of injury as 29 November 2014.
70.	The Member referred to the entry in the general practitioner’s notes recorded on 30 December 2014, which referred to a meniscal lesion, physically demanding work, and a further trauma at work. The Member said that the entry explained the trauma to the respondent’s knee.
71.	The Member turned to the evidence of Dr Wilcox and the findings recorded on the MRI scan undertaken in January 2015, which showed significant degenerative change in the medial meniscal compartment of the right knee. He noted that Dr Wilcox was of the opinion that the pre-existing degenerative disease was the main contributing factor to the right knee pathology and the respondent’s complaints. The Member reasoned that the opinion was difficult to accept because the “medical and lay evidence establishes on balance the [respondent’s] right knee was asymptomatic before the incident at work involving the bins.” He maintained that there was no evidence that the knee was symptomatic before the described incident and commented that a specific incident may cause an aggravation to an underlying condition. The Member pointed to the absence of evidence of any right knee symptoms between 2009 and November 2014. He concluded that he accepted that the respondent’s right knee condition was asymptomatic up until the injury described.
72.	The Member referred to the appellant’s submission that Dr Wilcox’s evidence should be preferred because Dr Wilcox had examined the respondent on two occasions, the first of which was shortly after the incident. The Member said that the first report mainly dealt with the cause of the degenerative changes and not the reason for the aggravation. The Member observed that, consistent with authority, it was necessary to consider the cause of the aggravation, rather than the underlying pathology.
73.	The Member considered that the facts of this case were consistent with those in Gibson v Royal Life Saving Society of Australia. He noted that the appellant’s case was that the respondent did not suffer a pathological change in the event described. He said, however, that soft tissue strains are sufficient evidence of a pathological strain consistent with a finding of injury and an injury may result from an aggravation of a disease process pursuant to s 4(a) of the 1987 Act. The Member referred to the Court of Appeal decision of Rail Services Australia v Dimovski and Anor and the High Court decision in Zickar v MGH Plastic Industries Pty Ltd as authorities for that proposition.
74.	The Member formed the view that the appellant’s case was unsustainable in the light of the decisions in Dimovski and Gibson. The Member referred to his earlier observation that there was no adequate challenge to the respondent’s version of events. He pointed to the evidence of Dr Awada that the injury occurred over a period of time, and the “tipping point” was the incident described. The Member considered that the history recorded was consistent with other medical practitioners, including Dr Rosenberg in his report dated 4 February 2015.
75.	The Member concluded that the medical evidence supported a finding that the respondent suffered a frank injury in the course of her employment on or about 3 December 2014, which aggravated and rendered symptomatic the pre-existing degenerative changes in the respondent’s right knee. The Member described the injury as “a symptomatic aggravation of an asymptomatic knee.”
76.	The Member reiterated that the respondent’s right knee was asymptomatic prior to the incident described. He referred to the clinical entry recorded in November 2014 but said that it was unquestionable that the precise date of injury in this matter was unknown and was pleaded as “on or about” the specified date. He observed that the respondent’s evidence was consistent and predominantly uncontested, and so on the balance of probabilities, he was satisfied that the evidence established that the respondent suffered an injury to her right knee in the course of her employment on or about 3 December 2014. 
77.	The Certificate of Determination issued on 19 October 2021 records:
“The Commission determines:
1.	The [respondent] suffered an injury to her right lower extremity (knee) and scarring (TEMSKI) in the course of her employment with the [appellant] on or about 3 December 2014.
2.	The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:
Date of injury:	on or about 3 December 2014 
Body systems referred: 	right lower extremity (knee)
Method of Assessment: 	whole person impairment”.
GROUNDS OF APPEAL
78.	The appellant brings two grounds of appeal from the Member’s determination, as follows:
(a)	Ground One: error of law in failing to make any finding that employment was a substantial contributing factor or the main contributing factor to the injury;
(b)	Ground Two: error of fact and law in finding that the respondent sustained an injury by way of a symptomatic aggravation of an asymptomatic knee “on or about 3 December 2014.” 
LEGISLATION 
79.	Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act: 
injury
(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
…”.
80.	Section 9A of the 1987 Act provides:
“No compensation payable unless employment substantial contributing factor to injury 
(1) 	No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. 
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: 
(a) 	the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment, 
(b) 	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.”
SUBMISSIONS
81.	As discussed above, while the respondent has indicated to the Commission that she opposes the appeal, she has not filed any submissions in response to the appellant’s grounds of appeal or in response to the appellant’s submissions in support of those grounds. The following is a summary of the submissions made by the appellant.
Ground One
82.	The appellant submits that the Member correctly identified the issues for determination including whether the respondent suffered an injury in the course of her employment, and whether the respondent’s employment was either the main contributing factor or a substantial contributing factor to the injury. The appellant points out that the issues as to whether the respondent’s employment was either the main contributing factor or a substantial contributing factor to the injury were clearly raised in the s 78 notice issued by it and the parties directed their submissions to those matters.
83.	The appellant refers to the Member’s ultimate finding that the respondent suffered a frank injury in an incident on or about 3 December 2014 in the nature of a symptomatic aggravation of an asymptomatic knee. The appellant asserts that the Member fell into error by failing to make any specific finding that the respondent’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the 1987 Act, or, if the injury was an injury within the meaning of s 4(b) of the 1987 Act, whether the employment was the main contributing factor to the injury. The appellant says that, if the Member did make those findings, then no sufficient reasons were provided. The appellant points out that the requirement under s 9A is independent of a determination of whether there was an injury pursuant to s 4 of the 1987 Act. The appellant says that the same applies in respect of whether the employment was the main contributing factor to an injury within the meaning of s 4(b) of the 1987 Act and the mere finding that the respondent suffered a symptomatic aggravation of an asymptomatic knee was not sufficient. The appellant refers to Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart and submits that, in this case, the issue of whether the employment was the main contributing factor to the injury was not a mere formality. 
84.	The appellant contends that it was not explicitly stated in the Member’s ultimate finding as to whether the injury fell within s 4(a) or s 4(b) of the 1987 Act. The appellant concedes that the Member “obliquely” referred to the issue of ‘contributing factor’ in his summary of the medical evidence. The appellant submits, however, that the Member’s evaluation of the evidence of Dr Porteous and Dr Wilcox was limited to the assessment of whether the respondent did or did not suffer an injury on or about 3 December 2014 and if so, the nature of the injury. The appellant submits that those matters are distinct from a consideration of the ‘main contributing factor’ and a ‘substantial contributing factor.’
85.	The appellant refers to the Member’s reference in his reasons to s 4(b) of the 1987 Act. It submits that it is apparent that this was in the context of determining whether the injury was a personal injury or a disease injury, and not in relation to a consideration of the concept of ‘main contributing factor.’ The appellant asserts that the Member made no specific finding of which test applied, and his reasons and determination did not disclose that the Member turned his mind to the critical issue or made the requisite findings. The appellant submits that this constitutes an error of law.
86.	In summary, the appellant submits that the Member erred in law in that:
(a)	he did not determine whether s 9A applied (as required for an injury under s 4(a)) or whether the test of ‘main contributing factor” in accordance with s 4(b) applied;
(b)	he did not turn his mind to those tests or make any determination as to whether those tests were satisfied, and
(c)	if he did make such findings, the Member did not provide sufficient reasons in support of those findings. 
Ground Two
87.	The appellant refers to the Member’s finding that the injury was a frank injury which occurred on or about 3 December 2014, and the nature of the injury was a “symptomatic aggravation of an asymptomatic knee.” The appellant says that it is implicit in that finding that the Member considered that the respondent was not suffering any symptoms in her knee prior to the injurious event. The appellant points out that that was consistent with the manner in which the respondent presented her case.
88.	The appellant contends that the Member erred by finding that there was evidence that supported that conclusion. The appellant concedes that:
(a)	the precise date of injury was unclear; 
(b)	in her statement dated 27 January 2015, the respondent referred to the injury occurring in late November 2014;
(c)	the precise date of injury may not always be established with certainty, and
(d)	in some cases, nothing will turn on the lack of a precise date of injury.
89.	The appellant asserts that this case was not a case where nothing would turn on the lack of a precise date of injury. The appellant refers to the Member’s assertion that the appellant provided no evidence or any submission about any significance that turns upon there being a precise date of injury. The appellant submits that that statement is incorrect. It says that it submitted to the Member that the date of injury was critical in respect of the question of injury and causation. The appellant says that it referred the Member to the general practitioner’s clinical notes, which disclosed an entry on 29 November 2014 that recorded one week of knee pain which was worse with walking and climbing stairs, the knee could give way and recorded “no trauma”. The appellant says that it submitted that, on that evidence, the date of onset of symptoms must have been 22 November 2014 and an allegation of injury on or about 3 December 2014 could not encompass the date of 22 November 2014. The appellant submits that the Member did not address that submission and did not make a finding as to when the injury occurred.
90.	The appellant refers to the Member’s observation that caution should be adopted when assessing the histories recorded in the clinical notes of treating doctors and accepts that notion to be consistent with the relevant authorities. The appellant submits, however, that the Member failed to find whether he accepted that the entry was an accurate reflection of what the respondent told the doctor, or, if it was accurate, what effect that evidence had on the respondent’s allegation that the injury occurred on or about 3 December 2014. 
91.	The appellant asserts that the Member afforded significance to the lay evidence (which the Member described as unchallenged) about the occurrence of injury and to the Incident Report form lodged within days of the alleged event. The appellant submits that that evidence went to the question of the injury occurring and failed to address the question of whether the respondent was already suffering symptoms in the knee prior to the event occurring. The appellant further asserts that the Member misconstrued the clinical entry when he observed that there was no reference to a work-related event. The appellant says that that observation is correct, however, the entry also specifically referred to there being “no trauma,” which is inconsistent with a frank injury having occurred. The appellant submits that the Member failed to address the reference to there being “no trauma,” as well as the symptoms being present for one week. The appellant says that the Member failed to make any finding as to the correctness of that entry, that is, that the pain had been present for a week, and whether that history puts the date of injury as before the onset of those symptoms.
92.	The appellant contends that the Member’s statement that there was no evidence to suggest that the knee was symptomatic before the incident could only be correct once the date of injury had been identified. The appellant says that the Member’s statement was made before the Member determined the date of injury. The appellant contends that there was evidence of symptoms in the knee well prior to the date of “on or about 3 December 2014” and in those circumstances a finding of when the injury occurred was required. 
93.	The appellant submits that the Member’s ultimate determination that the respondent suffered a right knee injury on or about 3 December 2014 which rendered symptomatic a previously asymptomatic knee was contrary to the evidence, erroneous, and ought to be revoked. 
THE RELIEF SOUGHT
94.	The appellant submits that if Ground Two of the appeal succeeds, the Member’s determination should be revoked and an award entered in the appellant’s favour. The appellant submits that if only Ground One is made out, the determination should be revoked and the matter should be remitted to a different member for re-determination.
CONSIDERATION 
Ground One: error of law in failing to make any finding that employment was a substantial contributing factor or the main contributing factor to the injury 
95.	The appellant submits that the Member failed to determine whether s 9A applied, as is required if an injury is found to be a personal injury under s 4(a) of the 1987 Act, or whether the test of ‘main contributing factor’ in accordance with s 4(b) of the 1987 Act applied if the injury was a disease or aggravation of a disease. The appellant says that the Member did not turn his mind to whether either the test in s 9A or s 4(b) was satisfied.
96.	The respondent’s case was that she suffered a frank injury when she was pulling the bin up the incline of the ramp, and that the injury was a personal injury within the meaning of s 4(a). The Member noted but rejected the appellant’s submissions that the onset of symptoms was more akin to an aggravation of a pre-existing condition within the meaning of s 4(b) than to the pleaded s 4(a) injury.
97.	The Member proceeded to make the following observations and conclusions:
“Although the [appellant] in this matter argues that the [respondent] did not suffer an injury to her right knee because she has not demonstrated a pathological change in those parts of her body, I note that soft tissue strains are themselves pathological conditions capable of sustaining a finding of injury. Moreover, an injury may result from an aggravation of a disease process, such as degenerative changes in the right knee and is capable of sustaining a [sic] finding of injury under section 4(a).”
“… The terms ‘personal injury’ and ‘disease’ are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury. 
In this matter, the medical evidence is sufficient on balance to establish the presence of an injury as that term is defined in section 4 of the 1987 Act. Whilst the radiological studies also demonstrate what appear to be longstanding degenerative changes, the clinical records make it clear the [respondent] had not complained of right knee changes before the incident at issue since approximately 2009.”
“For these reasons, the Commission finds that the [respondent] suffered an injury to her right lower extremity (knee) in the course of employment with the [appellant] on or about 3 December 2014 and will order that the matter be remitted to the President for referral to a Medical Assessor to determine any whole person impairment arising from that injury.”
98.	It is apparent from those reasons that the Member concluded that the respondent suffered a frank injury within the meaning of s 4(a) of the 1987 Act. On the basis of that conclusion, the relevant test is that prescribed in s 9A. It is not necessary to consider whether the Member turned his mind to the issue of whether the respondent’s employment was the main contributing factor to any injury as required by s 4(b) of the 1987 Act or to make any determination of that issue.
99.	The Member acknowledged that if the injury consisted of a personal injury within the meaning of s 4(a) of the 1987 Act, then he was required to determine whether the respondent’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the 1987 Act. The Member referred to the opinion of Dr Wilcox that the respondent’s employment duties would not have been a substantial contributing factor to the development of the degenerative knee condition. The Member thereafter made no reference to the issue of whether the respondent’s employment was a substantial contributing factor or to the requirement to satisfy s 9A of the 1987 Act. 
100.	Both the appellant and the respondent made submissions that if the injury was an injury pursuant to s 4(a), then s 9A applied. 
101.	Section 9A imposes a constraint on the payment of compensation. The test is a different test to that which arises in a consideration of whether the injury occurred in the course of or arising out of the employment concerned. It is a causal test and is a more stringent test than that imposed by s 4. The purpose of s 9A is to remove the possibility of payment of compensation where the connection between the injury and the employment was “remote or tenuous.” 
102.	The Member was required to determine whether the respondent’s employment was a substantial contributing factor to the injury and, in doing so, he was required to take into account the factors referred to in s 9A(2), where they were relevant. The Member failed to determine a substantive issue raised in the proceedings and in doing so fell into error.
103.	Ground One of the appeal succeeds. 
Ground Two: error of fact and law in finding that the respondent sustained an injury by way of a symptomatic aggravation of an asymptomatic knee “on or about 3 December 2014” 
104.	The appellant submits that, while in some cases the precise date of injury need not be identified, this matter was not such a case. The appellant says that the date of the injury was critical to the question of injury and to the question of causation, and submissions were made to the Member on that point. Further, the appellant submits that it made extensive submissions to the Member in relation to the clinical notes and other evidence, which it maintains were inconsistent with the respondent’s statement evidence and with the assertion that at the time the injury occurred, the right knee was asymptomatic. The appellant submits that the Member did not address those submissions. The appellant points out that there was evidence of right knee symptoms well before 3 December 2014, so that it was necessary to fix a date of the injury in order to ascertain whether or not it was asymptomatic. 
105.	 The appellant refers to the Member’s reasons wherein he observed that:
 “The respondent provides no evidence or submission to the effect that anything of significance turns upon the precise date of injury.”
106.	 The Member also reasoned as follows:
“I note, however, that there is very little evidence which in anyway contradicts the [respondent’s] statements concerning the mode of her injury. The [appellant] offers no eyewitness evidence to contradict the [respondent’s] version of events, save for the statement of Mr Germano, the [respondent’s] supervisor dated 28 January 2015”
…
“The difficulty with Dr Wilcox's opinion is that the medical and lay evidence establishes on balance that the [respondent’s] right knee was asymptomatic before the incident at work involving the bins. There is no evidence to suggest her knee was symptomatic before the incident where she was moving the bins, and it is trite to say a specific incident may cause an aggravation to an underlying condition. While there is reference to [degenerative] changes present in a right knee X ray from 2009 against a background of nocturnal pain, there is no evidence of ongoing symptoms in any of the clinical records between that time and November 2014. I have no difficulty accepting the [respondent’s] right knee was asymptomatic up to the injury at issue.”
…
“On balance, I am of the view that the medical evidence in this matter supports a finding that the frank incident suffered by the [respondent] on or around 3 December 2014 in the course of her employment rendered symptomatic the underlying conditions of her knee, and as such, that she suffered an injury in the course of her employment to the body part on that day. That is, there was a symptomatic aggravation of an asymptomatic knee.”
107.	The appellant asserts that the Member’s observations and conclusions are erroneous, in that they are contrary to the evidence.
108.	In her statement dated 27 January 2015, the respondent described the incident relied upon and indicated that she thought the injury, which triggered an onset of symptoms, occurred in late November 2014. She said she first sought treatment for her symptoms on 29 November 2014, which could not have been the date of injury, and neither could 3 December 2014. In her subsequent statement dated 1 February 2018, the respondent indicated that she first began to experience symptoms in late November 2014 as a result of her duties that consisted of constant pushing, pulling and bending. She also said that she recalled experiencing a sharp pain while pulling the bin on wheels up the ramp.
109.	On one assessment of that evidence, it might be said that, in her second statement, the respondent was referring to two causes of her knee pain. The Member did not analyse the potential discrepancy in that evidence.
110.	The first relevant entry in Dr Awada’s clinical notes on 29 November 2014 specifically referred to the onset of symptoms one week earlier and the absence of any trauma. The respondent consulted Dr Awada for treatment on two further occasions, and on 30 December 2014 recorded that the respondent was performing physically demanding work, leading to further trauma to her knee. In her report dated 23 June 2018, Dr Awada indicated that it was on 30 December 2014 that the respondent complained of worsening knee pain from pulling the heavy bin up a ramp. She was of the view that the condition had developed over several months and that the incident on 30 December 2014 was the “tipping point”. The certificate of capacity issued by Dr Awada dated 15 January 2015 also indicated that the injury related to the respondent’s employment because of the “nature of the work which involved prolonged walking, standing, pushing, pulling of bin.”
111.	The Member concluded from that evidence that, because the incident was a “tipping point,” the injury was a frank or personal injury within the meaning of s 4(a) of the 1987 Act. The Member determined that the injury was an aggravation of a pre-existing asymptomatic knee. The difficulty with the Member’s conclusion was that he did not reconcile the occasion of the frank injury in the context of the respondent’s complaints noted by the doctor that pre-dated the complaint made on 30 December 2014. Nor did he reconcile what he considered to be evidence of a frank injury with the doctor’s note made on that day that the incident was a “further trauma” to the knee which had been damaged over the previous months.
112.	The appellant contends that the Member’s statement that there was no evidence to suggest that the knee was symptomatic before the incident could only be correct once the date of injury had been identified. I accept that submission to the extent that before the Member could conclude that the right knee condition was asymptomatic prior to the injury, it was incumbent upon him to determine when in the clinical picture the condition in fact became symptomatic. That is, whether it was before or after the incident relied upon. It was also incumbent upon the Member to determine, on the basis of the evidence before him, whether the incident relied upon by the respondent initiated the symptoms, or was a “further trauma”, as described by Dr Awada.
113.	The appellant has established error on the part of the Member and this ground of appeal also succeeds.
CONCLUSION
114.	Both grounds of appeal brought by the appellant disclose error on the part of the Member and the appeal succeeds. The Certificate of Determination dated 19 October 2021 is therefore revoked. The appellant seeks to either have the Certificate of Determination revoked and an award entered in its favour or have the matter remitted to a different non-presidential member for re-determination. Subsection 352(6A) of the 1998 Act provides that, on an appeal, the Member’s decision may be confirmed or may be revoked, and a new decision made in its place. Subsection 352(7) permits the matter to be remitted to a different non-presidential member for re-determination.
115.	In the circumstances of this case, where the respondent indicated that it opposed the appeal but failed to participate in the appeal proceedings, I do not consider it appropriate to re-determine the matter at the presidential level. The matter is therefore remitted to a different non-presidential member for re-determination. 
DECISION
116.	The Certificate of Determination dated 19 October 2021 is revoked.
117.	The matter is remitted to a different non-presidential member for re-determination.

Elizabeth Wood
Deputy President
23 August 2022