Attard v Toll Transport Pty Ltd t/as Global Express Palletised Express

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Attard v Toll Transport Pty Ltd t/as Global Express Palletised Express [2023] NSWPIC 42
APPLICANT:	Gary Attard
RESPONDENT:	Toll Transport Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	6 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly benefits payable under section 38 resulting from injury sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent, which is disputed by the respondent; while liability is accepted for this injury the applicant sustained to his right shoulder, the applicant alleges he has sustained consequential condition in his left shoulder and he has sustained secondary psychological injury, both of which are also disputed by the respondent; Held – the applicant has sustained consequential condition in his left shoulder and secondary psychological injury resulting from the injury the applicant sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent; the applicant has had no current work capacity since 24 May 2021 resulting from injury he sustained to his rights shoulder on 29 November 2017 and is likely to continue to indefinitely have no current work capacity resulting from that injury; the applicant has entitlement to weekly compensation payable under section 38(2) from 24 May 2021 to date and continuing.
determinations made:	1. The applicant has sustained consequential condition in his left shoulder resulting from injury sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent. 2. The applicant has sustained secondary psychological injury resulting from injury sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent. 3. The applicant has had no current work capacity since 24 May 2021 resulting from the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with the respondent and is likely to continue to indefinitely have no current work capacity resulting from that injury. The applicant has entitlement to weekly compensation payable under s 38(2) of the Workers Compensation Act 1987 from 24 May 2021 to date and continuing in the accordance with the Workers Compensation Act 1987 at the rate of $869.67 per week, as indexed.

STATEMENT OF REASONS

BACKGROUND

At the time the applicant Gary Attard (Mr Attard) sustained injury the subject of these proceedings he worked with Toll Transport Pty Ltd (Toll) in the role of forklift operator. Mr Attard had worked in this role since 2016. Mr Attard sustained injury to his right shoulder on 29 November 2017 in the course of his employment with Toll and came to surgical treatment under the care of his initial treating orthopaedic surgeon, Dr Gupta, on 28 February 2018 and the care of his subsequent treating orthopaedic surgeon, Dr Trantalis, on 19 March 2020. Mr Attard is currently 46 years of age. Mr Attard is left hand dominant.
In these proceedings Mr Attard claims weekly compensation payable under s 38 of the Workers Compensation Act 1987 (1987 Act) from 24 May 2021 ongoing. Mr Attard’s
pre-injury average weekly earnings (PIAWE) are agreed at $1,087.09.
The circumstances of Mr Attard’s injury the subject of these proceedings are described in the following terms:
“At the time of injury, the Applicant was employed by the Respondent as a forklift driver. On 29 November 2017, during the course of his employment, the Applicant was pulling the curtain of a truck when he felt a sharp and immediate onset of pain throughout his right shoulder, thus sustaining injury (‘the incident’).
In addition, the Applicant developed a consequential condition to his left shoulder, due to over reliance, and a secondary psychological injury as a result of the applicant’s above mentioned physical injuries and drawn-out rehabilitation process.
In the alternative, due to the incident, the applicant sustained an injury to his right shoulder, a consequential injury to his left shoulder due to over reliance and a secondary psychological condition by way of aggravation, exacerbation and/or deterioration as a result of the applicant’s above mentioned physical injuries and drawn-out rehabilitation process.
The respondent disputes the injury to the consequential left shoulder condition and secondary psychological condition”
Mr Attard’s claim for weekly compensation is declined, and he has been issued with notice in which he has been advised of the decision to decline his claim.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a)    whether Mr Attard has suffered consequential condition to his left shoulder;
(b)    whether Mr Attard has suffered secondary psychological injury, and
(c)    whether Mr Attard has suffered an incapacity for work resulting from injury sustained in the course of his employment with Toll since 24 May 2021, as alleged.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

These proceedings came before me for preliminary conference on 23 August 2022. Ms Basal appeared for Mr Attard and Ms Bauer appeared for Toll. With Mr Attard’s claim unresolved, these proceedings came before me for conciliation conference and arbitration hearing on 23 September 2022. Mr McEnaney of counsel appeared for Mr Attard and Mr Doak of counsel appeared for Toll. Mr Attard was present.
I am satisfied after my discussion with counsel that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. When it became evident the arbitration hearing would not conclude during the day of 23 September 2022, I issued directions for the lodgement and service of written submissions by both parties. This has now occurred.

EVIDENCE

Documentary evidence

Toll objected to Mr Attard relying on paragraph 75 of his statement dated 22 June 2022, being a paragraph in which Mr Attard canvasses discussion between an unnamed rehabilitation provider and his then treating general practitioner Dr Islam. Paragraph 75 of Mr Attard’s statement referred reads:
“Following this conversation, the rehabilitation provider contacted Dr Islam, and pressured him into changing their decision regarding my capacity. However, Dr Islam explained to them that I was not able to return to work in any capacity due to my injuries”.
Mr Doak submitted there is no evidence to support the fact Mr Attard was present when such discussion between the rehabilitation provider and Dr Islam occurred, and the paragraph is contrary to requirement of rule 73 of the Personal Injury Commission Rules 2021 (the Rules) in that the paragraph is speculative and unsubstantiated.
Rule 73 of the Rules provides:
“The appropriate decision-maker for applicable proceedings must, when informing itself or themselves of any matter in the proceedings, have regard to the following principles –
(a)evidence should be logical and probative,
(b)evidence should by relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.”.
In response to Mr Doak’s objection to Mr Attard relying on paragraph 75 of his statement dated 22 June 2022, Mr McEnaney submitted “… the Commission should read the evidence and have regard to its weight in the same manner the Commission regularly does where imperfect evidence is given in written statements”. Mr McEnaney’s submission was countered by Mr Doak with submission “if admitted the evidence should be given no weight”.
Following careful consideration of counsels’ submissions and the guiding principles propounded in rule 73 of the Rules I am of the view that relative to these proceedings paragraph 75 of Mr Attard’s statement dated 22 June 2022 is not probative in nature and is not to be admitted into evidence in these proceedings.
Accordingly, the following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents, save for paragraph 75 of Mr Attard’s statement dated 22 June 2022 (at page 25);
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 16 August 2022 and attached documents lodged on behalf of Mr Attard.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Attard

Mr Attard relied on two statements. His initial statement is dated 1 November 2021 and his subsequent statement is dated 12 June 2022. In his initial statement Mr Attard relevantly said he sustained injury to his right shoulder in or about 1994 while water skiing and came to surgical treatment. Mr Attard said that this right shoulder injury “fully resolved” and “does not have any bearing on the subject workplace injury, nor has it had an ongoing impact upon my capacity to work.” Mr Attard said that immediately prior to sustaining injury to his right shoulder on 29 November 2017 he did not suffer any significant medical conditions or injuries that impacted his ability to undertake his work duties with Toll. This said, Mr Attard acknowledged in his later statement that he had previously suffered anxiety and depression consequent on his mother’s illness and subsequent death in July 2015 for which he sought medical treatment and trialled anti-depressant medication, and that in or around August 2015 he had been diagnosed with Graves’ Disease.
Mr Attard relevantly explained:
“On 29 November 2017, whilst in the course of my duties, I sustained an injury to my right shoulder. Throughout my recovery period, I developed a consequential injury to my left shoulder due to overreliance. Further, due to the drawn out and largely unsuccessful rehabilitation process, I also developed secondary psychological injuries diagnosed as anxiety and depression.”
Mr Attard said he came to right shoulder rotator cuff repair and bicep tenodesis under the care of Dr Gupta on 28 February 2018, following which the pain in his right shoulder was debilitating. Mr Attard said:
“I did not feel the surgery offered any relief to my pain symptoms or stiffness in my right shoulder. My right arm was confined to a sling for approximately six weeks, and I took around seven weeks off work. During this time, I relied heavily on my left shoulder and left arm for daily duties and tasks, so as to protect my right shoulder from further injury. When I was cooking, cleaning and showering, I was only able to use my left arm to avoid aggravating the pain and discomfort in my right shoulder.”
Mr Attard explained he returned to work in or around April 2018 although he did not feel his right shoulder had fully recovered. Mr Attard explained that while driving about four days after he had returned to work he experienced “excruciating pain” in his right shoulder, which he reported to his supervisor. Mr Attard said that following this particular episode, the pain in his right shoulder intensified. He said:
“I found myself relying heavily on my left shoulder on a daily basis as any use of my right arm inflicted unbearable pain. When I slept at night, I could only sleep on my left side and found myself waking up throughout the night in pain.”
With Mr Attard’s right shoulder remaining significantly symptomatic, Mr Attard was referred to Dr Trantalis for orthopaedic review, coming to ultrasound scan of his right shoulder on 18 August 2019. Mr Attard said:
“Around this time, I started feeling very down, depressed and anxious. It felt that no matter what treatments I tried, the pain in my right shoulder persisted. I became frustrated, agitated and annoyed that my pain and injury was not improving. Being unable to return to my preinjury duties started to take a toll on me, as I felt increasingly unmotivated, depressed and worthless.”
Mr Attard explained he came to right shoulder arthroscopy, acromioplasty, excision of his AC joint, removal of a screw and rotator cuff repair under the care of Dr Trantalis on 19 March 2020. Mr Attard said:
“I was again required to wear a sling over my right shoulder for around six weeks. This resulted in my heavily relying on my left shoulder for all daily and self-care activities, including washing, vacuuming, cleaning and cooking. Around this time, I started suffering from pain and restrictions in my left shoulder. The pain and stiffness in my left shoulder would be particularly severe after a full day of physical exerting myself and having to overcompensate on my left shoulder.”
While Mr Attard said that following his second surgical treatment he felt some improvement in his right shoulder pain, he said “the discomfort in my right shoulder persisted and my movement and mobility in my right shoulder was nothing like it was prior to the workplace injury”.
With Mr Attard’s right shoulder remaining symptomatic despite physiotherapy and physiology treatment, Mr Attard said his left shoulder became “progressively worse” and he was ultimately referred for X-ray of his left shoulder on 23 April 2021 and MRI of his left shoulder on 27 April 2021, which he said demonstrated “partial tear and tendonitis and bursitis”.
At the time of making his initial statement Mr Attard said:
“… I have continued to suffer ongoing pain and restrictions in my bilateral shoulders. My right shoulder pain is constant and severe, causing me to completely avoid using my right arm and shoulder on a daily basis. Due to this overreliance, the pain and stiffness in my left shoulder has become progressively worse. My left shoulder symptoms aggravate when I am required to lift heavy items such as grocery shopping bags or drive for prolonged periods. I often wake up during the night due to the pain in my bilateral shoulders and I struggle to get back to sleep. While I have tried to remain positive, my mental health has completely deteriorated. I suffer from constant feelings of depression, stress, frustration and worthlessness. My mood is always low, and I have no motivation to do anything anymore. Due to my declining mental state, I have recently had to go on anti-depressants”.
At the time of making his subsequent statement Mr Attard said:
“…I continue to suffer from symptoms of severe anxiety, depression, and panic attacks. I struggle to catch my breath and often feel like I’m going to pass out. I struggle constantly with suicidal thoughts and really try to keep it together, but I feel broken inside.
…
Between April 2021 and the present, I have continued to suffer from pain and restrictions in my left shoulder. I constantly experience stiffness in my left shoulder, which radiates into my neck. I lack strength in my left shoulder, and struggle to lift heavy objects such as grocery bags, due to the weakness in my left shoulder. Due to my right shoulder injury, I continue to rely heavily on my left arm, which in turn, continues to aggravate my left shoulder.”
Relevant to Mr Attard’s current work capacity, Mr Attard said of the three employment options identified as suitable for him in the Vocational Assessment Report dated 18 September 2020 (being warehouse administrator, carpark attendant and product assembler) that his physical disabilities, work experience and skills restricted him from carrying out the duties required of these roles. Mr Attard pointed out he is illiterate. Mr Attard said he only completed his schooling up until half way through year 9 and had always worked in physically oriented roles like manufacturing, furniture removal and forklift driving. Mr Attard said he had never worked in an office or in an administrative role. Mr Attard said he had very limited computer skills.

Treating medical evidence

Campbelltown Medical Centre

Mr Attard initially came under the general medical care of Dr Islam. While Dr Islam has provided Mr Attard with a number of certificates of capacity in which he makes no mention of a consequential condition in Mr Attard’s left shoulder, it is evident Mr Attard suffered significant pain in his right shoulder with which he “struggled”. Furthermore, as early as 14 November 2019, Dr Islam noted “Garry has been having worsening symptoms of anxiety and depression due to his physical injury and complicated management – he needs psychotherapy, antidepressant medication”.

Myhealth Oran Park

Mr Attard subsequently came under the general medical care of Dr Samaranayake. The medical centre’s clinical records are in evidence.
On 2 September 2021 Dr Samaranayake issued Mr Attard with a certificate of capacity in which he provided diagnosis, which included “major depressive disorder and generalised anxiety disorder.” Dr Samaranayake noted at the time “Chronic pain and R shoulder disability has affected his mental health significantly since 2018, low mood, energy, increased anxious, insomnia, some panic at times”. In an email written by Jenni Duong, senior rehabilitation consultant with Platinum Rehabilitation Group, dated and consequent on a medical case conference that same day (reportedly attached to which was “psychologist referral”), Mr Duong wrote in part:
“Dr Samaranayake noted Mr Attard had reported a history of suicidal ideation during the preceding months likely due to the stress, depression and anxiety associated with the return to work outcome and lack of support previously.
…
Dr Samaranayake recommended some restrictions of the left shoulder region to avoid overcompensation and as such, future complications in the left shoulder region.
Dr Samaranayake advised he has noted some minor signs of left shoulder overuse and as such, would like to avoid overusing the left shoulder where applicable.”
On 30 September 2021, in response to a questionnaire forwarded to him by the Platinum Rehabilitation Group, Dr Samaranayake provided opinion that while Mr Attard would be fit to perform the duties of a warehouse administrator or car park attendant “as long as minimal literacy required” Mr Attard would not be fit to perform duties of a product assembler.
On 24 October 2021 Dr Samaranayake provided Mr Attard’s solicitors with a report in which Dr Samaranayake confirmed he had only recently taken over Mr Attard’s general medical care. In response to specific questioning, Dr Samaranayake provided a consistent history of injury and consequent treatment under the specialist care of Dr Gupta and Dr Trantalis and provided diagnosis which included injury to the right shoulder, possible injury to the left shoulder and major depressive disorder secondary to the injury Mr Attard sustained to his right shoulder, chronic pain and disability. In providing diagnosis of major depressive disorder Dr Samaranayake noted Mr Attard had suffered with low mood, reduced energy, increased anxiety, insomnia and infrequent panic attacks since 2018. Insofar as Mr Attard’s current work capacity was concerned, at the time of reporting, Dr Samaranayake considered Mr Attard fit for suitable duties four hours each day for four days each week. Having said that, Dr Samaranayake considered Mr Attard’s current work capacity was affected by Mr Attard’s poor literacy and limited education. Dr Samaranayake expressed concern that more challenging roles, especially those requiring Mr Attard to be outwardly communicative, may exacerbate Mr Attard’s anxiety and worsen his self-confidence. Dr Samaranayake cautioned Mr Attard’s mental health had recently declined and could pose a very relevant barrier to him finding work or maintaining work should he secure it. Dr Samaranayake also described Mr Attard as having developed a left shoulder problem over the last year. Dr Samaranayake noted Mr Attard is left hand dominant and reported Mr Attard was overusing his left shoulder due to the disability and chronic pain he encountered using his right shoulder.

Under cover of letter dated 4 November 2021, Dr Samaranayake referred Mr Attard for psychiatric review due to active suicidal ideation. Under cover of letter dated 11 November 2021 Dr Samaranayake sought opinion and need for inpatient admission of Mr Attard for psychiatric management for “stabilisation of high risk suicide”.

Dr Trantalis

As noted Mr Attard came under the orthopaedic care of Dr Trantalis. Limited clinical records of Dr Trantalis are in evidence. Dr Trantalis reported Mr Attard first consulted with him on 7 November 2019 and came to surgical treatment on 19 March 2020.
On 27 October 2020 Dr Trantalis certified Mr Attard fit for clerical work only, with no lifting and/or overhead activities. When reviewed by telehealth on 30 June 2021, Dr Trantalis reported Mr Attard’s right shoulder remained symptomatic.

Headstart Psychological Services

Mr Attard came under the care of Thawhida Rangiah for psychological assessment and treatment on 14 November 2019, following referral by his general practitioner. Ms Rangiah provided a report dated 31 January 2021. Ms Rangiah confirmed Mr Attard was first referred to her in 2016 by his general practitioner for grief and loss counselling following the death of his mother. Ms Rangiah confirmed intervention at that time occurred over a few months and with Mr Attard’s commitment to therapy and antidepressant medication, he recovered well. Ms Rangiah said Mr Attard subsequently ceased medication and therapy. Ms Rangiah pointed out there was no re-referral to her until that occurring in November 2019, with such re-referral pertaining to Mr Attard’s psychological fragility resulting from the injury Mr Attard sustained in the course of his employment with Toll.
Ms Rangiah explained:
“Gary had a relapse of right shoulder pain following a rotator cuff repair and bicep tenodesis on 28 February 2018. He began to struggle with pain which worsened at work. Due to surgeries and return to work and ongoing pain, he was not coping psychologically. Hence his referral to me by his GP.”
Ms Rangiah reported:
“Gary’s initial assessment indicated that he was struggling with pain and hence low mood. He was unable to function like he knows himself to. He has limited capacity to use his right shoulder and this ongoing struggle was lowering his energy levels and therefore motivation. He was also presenting with sleep struggles and his general daily function. He is by nature an active person and has always loved to work but unfortunately due to this injury, his capacity to engage in his work, like he knows and likes to, shifted dramatically. He also struggled with how his colleagues were perceiving him. He knew his pain and therefore his limitations and understood that he needed to look after himself. Unfortunately, when Gary could not execute duties that were going to jeopardise his physical condition and therefore his pain, he was perceived as lazy and uncooperative. This then had ramifications for him as far as independent interpersonal relationships in the workplace went. He felt very scrutinised and harassed. This grieved him greatly and was a great contributor to his psychological decline. He discussed his struggles in the workplace with me at length and the impact on his self-esteem and self-image.”
Ms Rangiah provided diagnosis of acute stress disorder, adjustment disorder with low mood and high anxiety. As for Mr Attard’s current functioning, Ms Rangiah reported:
“He has been working at Toll over many years and was good and confident about what he could do and what the expectations were. Unfortunately, Toll have changed their roles and his return to work same job, same place, is not an option any longer. What as an alternative that was offered to him are administrative duties but due to his poor literary skills he feels overwhelmed at the thought of those kind of duties, as he knows he does not have the skills set to do them. This has been causing him great anxiety as well. His future as far as his employment goes, feels overwhelmingly unattainable.”

JT Physio

Mr Attard came under the care of JT Physio on 3 September 2020 following referral by Dr Islam for physiotherapy treatment of his right shoulder injury. The clinical records relevant to Mr Attard’s physiotherapy treatment are in evidence. It is evident Mr Attard’s right shoulder has remained problematic despite treatment.
When reviewed on 11 May 2021, it was noted Mr Attard had no current work capacity, and in the discharge summary dated 21 March 2022, it was noted that despite Mr Attard’s compliance with treatment he had made minimal improvement. Symptoms noted at this last session were described in the following terms:
“Gary continues to report constant pain and soreness in the right shoulder (6-8/10 VAS), which resultantly affects his sleep.
In addition to Gary’s lack of sleep, Gary also states that he is under more stress due to factors such as his mental health and pain symptoms, which subsequently affects his motivation and mood.
Gary has reported having a recent flare-up, where he states experiencing a pinching and sharp pain in the right shoulder.”

Mind Lounge

Mr Attard came under the care of Keisha Yu for psychological treatment. Ms Yu provided a report dated 17 February 2022. Ms Yu provided psychological treatment to Mr Attard through an allied service of JT Physio. Ms Yu’s clinical notes are in evidence.
Ms Yu explained that as a consequence of the injury Mr Attard had sustained to his right shoulder in the course of his employment with Toll, Mr Attard started experiencing depressive and anxiety symptoms. While Ms Yu accepted Mr Attard had experienced depression during his grieving period following the death of his mother, she said this earlier depression had resolved with therapy and there was no suggestion Mr Attard now had a psychological condition unrelated to the right shoulder injury he had sustained in the course of his employment with Toll.
With reference to Dr Thomas’ report in which Dr Thomas suggested Mr Attard may be suffering from a personality disorder with low motivation to return to the workplace Ms Yu said:
“… I would like to note, Mr Attard briefly returned to work in July 2020 under reduced capacity as he was not physically able to fulfil his preinjury role. Due to his limitations with computers, he was unable to complete administrative tasks. He was assigned to be alone in the kitchen with no meaningful job to complete, apart from cutting some logos from old uniforms. He described feeling ostracised from his colleagues and managers. In regard to his motivation to return to employment, Mr Attard has expressed his desire to return to work with a new employer as being unemployed is negatively impacting his self-confidence. Mr Attard has reported that work forms a large sense of his identity and the longer he is unable to work, the more this impacts his mental health. Currently I do not believe he has capacity to undertake any form of employment.”
Ms Yu went on to say:
“I believe Mr Attard may be suitable for a gradual return to work plan with a new employer in the future. Mr Attard has poor written ability and minimal knowledge with technology. He may benefit from undergoing further up skilling or undertaking to increase his chances of employability.”

Dr Lieu

Mr Attard was orthopaedically reviewed by Dr Lieu. Dr Lieu provided a report dated 28 March 2022. Dr Lieu reported a consistent history of Mr Attard sustaining injury to his right shoulder in November 2017 in the course of his employment with Toll and coming to surgical treatment under the care of Dr Gupta initially and Dr Trantalis subsequently. Dr Lieu noted Mr Attard continued to suffer significant pain and stiffness despite physiotherapy treatment. Dr Lieu noted Mr Attard continued to take significant opiate based pain relief.
Dr Lieu noted Mr Attard had not returned to work following his surgical treatment under the care of Dr Trantalis. Dr Lieu reported Mr Attard was “looking to reskill” and had been certified fit for “office-based duties.” Dr Lieu acknowledged “this however has been difficult given that he is also dyslexic.”
Dr Lieu concluded:
“Mr Attard has a very irritable shoulder. His tendon has healed and there is no further surgery that would be of any assistance. He most likely developed a degree of post surgical adhesive capsulitis. At this stage, I do not expect any significant improvement. Unfortunately, he will be left with a very irritable shoulder that will not be suitable for any manual work in the future. At most I would recommend light process work with a 2 to 5kg lifting restriction, and with no overhead activity. Although I do not expect any significant improvement in the future, there is also no suggestion that he will deteriorate either.”
Dr Lieu returned Mr Attard into the orthopaedic care of Dr Trantalis.

Independent medical evidence
Dr Derek Lee

Mr Attard was assessed by Dr Lee in his capacity as independent medical consultant on 26 August 2020. Dr Lee is an Occupational Physician. Dr Lee provided a report dated 18 September 2020.
Dr Lee reported a medical history which included the development of some anxiety symptoms by Mr Attard resulting from his claim for workers compensation. Dr Lee noted Mr Attard had commenced attending psychological sessions in or about mid 2020 on a monthly basis. Dr Lee noted Mr Attard was prescribed antidepressant medication.
Mr Attard presented with complaint of a symptomatic right shoulder (including complaint his symptoms had increased following his functional assessment on 20 August 2020 with the Trinitis Group (Trinitis). Mr Attard provided a consistent history of injury occurring on 29 November 2017, surgical treatment under the care of Dr Gupta, a return to work and subsequent aggravating injury in February 2019, and further surgery under the care of Dr Trantalis. Dr Lee reported Mr Attard did not return to work following his surgical treatment under the care of Dr Trantalis.
Following his discussion with Mr Attard, clinical examination and review of the diagnostic imaging made available to him, Dr Lee provided opinion Mr Attard was capable of working four hours a day, four days each week in suitable duties. Dr Lee considered Mr Attard was fit to work in identified roles of warehouse administration, carpark attendant and product assembler (light items) for 16 hours each week.
Dr Lee made no mention in his report of complaint by Mr Attard of left shoulder symptoms, which is perhaps unsurprising in that Dr Lee’s assessment of Mr Attard occurred only some five months after Mr Attard’s surgical treatment under the care of Dr Trantalis.

Work Capacity Assessment

Trinitis provided a work capacity assessment dated 18 September 2020 following functional and vocational assessment of Mr Attard on 20 August 2020, which is just prior to Mr Attard’s assessment with Dr Lee.
Mr Moore, exercise physiologist, conducted the functional assessment and concluded Mr Attard may be capable of performing sedentary work or some aspects of light work immediately but was unable to lift or sustain overhead movements with his right arm. Ms Zengovaska, psychologist, identified employment opportunities for Mr Attard which she considered were consistent with Mr Attard’s skills and aptitude, being warehouse administrator, car park attendant, and product assembler. Mr Moore provided comment that from a physical perspective Mr Attard had adequate functional capacity to perform those identified roles.

Vocational Assessment Report

Recare Services (Recare) provided a vocational assessment report dated 23 September 2021 following assessment of Mr Attard on 21 September 2021. Recare also provided a supplementary report dated 4 February 2022. The authors of the reports are Mr Ratanasirilak, rehabilitation consultant and Mr Hollings, principal psychologist.
In their initial report, Mr Ratanasirilak and Mr Hollings provide the following summary:
“Mr Attard reported he sustained workplace injury on 29 November 2017 while undertaking his regular duties as a forklift driver for Toll Transport Pty Limited. He is currently unemployed and has capacity for some type of employment for four hours per day, four days per week. Mr Attard reported to have returned to work on light duties, however, was unable to continue working due to re-aggravation of his injuries and persistent pain symptoms related to his right shoulder injury. To date, Mr Attard has been unsuccessful in securing paid employment in the vocational roles identified by Trinitas Group (warehouse administrator, product assembler, and car park attendant). Additionally, Mr Attard reported ongoing pain symptoms in his right shoulder.”
Following a review of the vocational options identified by Trinitas in the vocational assessment dated 18 September 2020, Recare said the vocational options identified did not meet the definition of “suitable employment”. While Trinitis asserted Mr Attard had capacity for and could secure paid employment as warehouse administrator, product assembler and car park attendant, Recare argued that given Mr Attard’s skill set and ongoing impairment with his shoulder, these roles would not be suitable. Recare noted Mr Attard had been unsuccessful in obtaining employment in these types of roles through independent job seeking, which suggested Mr Attard would not be competitive in the open market.
In essence, Recare said the roles of warehouse administrator, product assembler, and car park attendant could not be considered suitable employment roles for Mr Attard as all roles involved repetitive movements and required the use of both arms. Recare said Mr Attard’s injuries and subsequent disabilities restricted him from being able to successfully complete the duties of any of the identified roles. While Recare suggested Mr Attard would be better suited for retail assistant type roles, Recare cautioned that prior to Mr Attard applying for roles of this type, a work trial should be implemented to both improve his work fitness and test his tolerance to standing.
In their supplementary report, while Mr Ratanasirilak and Mr Hollings maintained their previously expressed suggestion Mr Attard could be suited for a retail assistant type role, they noted new evidence had been made available to them in that (a) Dr Samaranayake had downgraded Mr Attard’s capacity for work to no current work capacity, (b) Dr Samaranayake had reported on 24 October 2021 that Mr Attard was suffering from passive suicidal thoughts and had not taken his prescribed medication due to adverse side effects, and (c) Dr Sikhander Khan had reported on 12 October 2021 that Mr Attard was unlikely to ever engage in gainful employment on a sustainable basis in any occupation for which he is reasonably qualified by education, training or experience. With this in mind, Mr Ratanasirilak and Mr Hollings conceded such medical information “would certainly bring into question any form of return to work, including retail assistant at this time”.

Dr Sikhander Khan

Mr Attard was assessed by Dr Sikhander Khan in his capacity as independent medical examiner. Dr Khan provided two reports. Dr Khan’s initial report is dated 12 October 2021 and his subsequent report is dated 15 March 2022.
In his initial report Dr Khan reported a consisted history of Mr Attard sustaining injury to his right shoulder on 29 November 2017 in the course of his employment with Toll, for which he ultimately came to surgical treatment under the care of Dr Gupta on 28 February 2018 and Dr Trantalis on 19 March 2020. Dr Khan noted that following post-surgical physiotherapy and rehabilitation, Mr Attard returned to suitable duties, which were withdrawn, with Mr Attard then not returning to work despite being certified with current work capacity for four hours each day, four days each week.
Dr Khan described Mr Khan’s “present situation”:
“The right shoulder feels very weak. He is only able to lift about 3kg. The right shoulder flares up if he uses the right arm. He has difficulty sleeping.
…
Using the left shoulder to protect the injured right shoulder has caused a consequential injury to the left shoulder which has been found to have bursitis on MRI scan.”
Following clinical examination and review of the diagnostic imaging made available to him, which included the MRI left shoulder report dated 27 April 2021, Dr Khan provided diagnosis of injury to the right shoulder “causing recurrent tears of the rotator cuff requiring two surgical procedures” and consequential condition in the left shoulder “causing subacromial and subdeltoid bursitis and partial rear of the rotator cuff”.
In response to specific questioning, Dr Khan said Mr Attard sustained consequential condition in his left shoulder “as a result of over reliance on the left shoulder to protect the injured right shoulder sustained in the course of his employment”.
Dr Khan also said that since Mr Attard sustained injury on 29 November 2017, Mr Attard had suffered an incapacity for work “of different gradation”. Relevant to the three employment options identified in the Vocational Assessment report dated 18 September 2020 and the observations made in the Vocational Assessment report dated 23 September 2021, Dr Khan said of the latter:
“I do agree that Mr Attard would benefit from retraining to return to any form of sustained suitable employment as he has previously carried out mainly physical types of work and has limited transferrable skills or computer skills to carry out office type or administrative work”.
Dr Khan also said that given Mr Attard’s medical condition:
“… it is unlikely that he will ever again engage in gainful employment on a sustainable basis in any occupation for which he is reasonably qualified by education, training or experience.”
When preparing his subsequent report, it is evident Dr Khan had available to him the report of Dr Machart dated 18 November 2021 (discussed below). At assessment Dr Khan confirmed with Mr Attard he had not returned to any employment, and said of Mr Attard’s presentation:
“He has constant soreness in the right shoulder which gets very tired. Movements of the right shoulder are restricted. Lifting tolerance is between 3kg to 5kg.
…
He finds that he has pains in the left shoulder and these symptoms get worse if he tries to use the left arm to protect the right shoulder such as hanging up washing and use of the left arm to do household chores such a cleaning, vacuuming, or cutting the grass and driving. Mr Attard does not play any sport.”
Following clinical examination, which was limited as the assessment was by way of video, Dr Khan confirmed his previous diagnosis and said:
“Since last seen on 12 October 2021, his condition has continued to cause symptoms and disabilities affecting both shoulders, which is interfering with his activities of daily living and ability to return to work”.
In response to specific questioning Dr Khan confirmed his previously expressed opinion that Mr Attard had sustained a consequential condition in his left shoulder. Dr Khan explained this consequential condition was due:
“to overuse of his left shoulder to protect his right shoulder and this has caused excessive stress and strain on the left shoulder, carrying out aspects of his household chores and home maintenance activities as noted above”.
In response to specific questioning about Dr Machart’s report, Dr Khan said he disagreed with Dr Machart’s opinion that Mr Attard had not sustained consequential condition in his left shoulder. Dr Khan explained:
“Dr Machart noted that Mr Attard did not have any symptoms in his left shoulder and the symptoms started only ‘about one year ago’ which means sometime in late 2020 which is after Mr Attard underwent his second operation for his right shoulder. This is contemporaneous during the period of recovery from his right shoulder operation and postoperative recovery period.
He also noted on physical examination that there was evidence of impingement in the left shoulder.
Dr Machart however did not have the reports of the MRI scan of the left shoulder which also confirmed subacromial bursitis and other pathology in the left shoulder confirming the consequential injury to his left shoulder.
It is therefore my opinion that Mr Attard did sustain a consequential injury to his left shoulder which was asymptomatic prior to his injury to the right shoulder and was even asymptomatic following the first operation but became symptomatic after his second operation in 2020 and there is evidence which confirms that this injury was caused as a consequence of overuse of the left arm to protect the injured right arm.
This is confirmed in physical examination showing impingement and mild restriction of movements at my examination and also confirmed on MRI scan of the left shoulder subsequently carried out”.

Dr Abdul Khan

Mr Attard was psychiatrically assessed by Dr Abdul Khan in his capacity as independent medical examiner. Dr Khan provided two reports. His initial report is dated 18 October 2021 and his subsequent report is dated 2 July 2022.
In his initial report Dr Khan described Mr Attard as first experiencing mental health fragility in 2015 in the context of his mother’s death. Dr Khan reported Mr Attard was referred for psychological treatment, which resulted in stabilisation of his mental health.
Dr Khan provided a detailed history relevant to Mr Attard’s presentation at assessment on 18 October 2021:
“Mr Attard reported how on 29 November 2017, he was pulling the curtain of a truck when he developed acute right shoulder pain. He informed his manager about his pain but was told to return to work. When he struggled to continue working, he informed his manager again about his pain and was told to return home. Mr Attard followed up with his general practitioner on or about 30 November 2017. He was referred for an MRI scan of his right shoulder and took one day off work before returning to work on light duties where he continued to drive forklifts with no heavy lifting.
Mr Attard said that he continued to work but there were periods where he struggled with right shoulder pain. He eventually underwent a right rotator cuff repair on 28 February 2018 and was required to take seven weeks off work to physically recover. Mr Attard recalled how at the end of the last week of work, the safety officer from work contacted him and told him that he had to return to work. He reportedly told the safety officer how he felt his right shoulder had not fully recovered after surgery, but the safety officer said that he would not be getting paid if he did not return to work. Mr Attard also expressed his concerns about driving to work and its impact on his right shoulder recovery and asked the safety officer if they could arrange for transportation to and from work, but this was denied despite other employees with physical injuries having access to such resources. He felt unsupported, ignored and dismissed by his employer and his mental state started to deteriorate around this time.
Mr Attard recalled how on the fourth day of returning to work, he reinjured his right shoulder while driving a forklift. He said that he needed to swerve as the driver of a car was approaching his forklift and was not paying attention. Mr Attard was totally incapacitated for work from around late April 2018 to July 2021. He required further right shoulder corrective surgery on 1 April 2020 (sic). He later developed consequential injuries to his left shoulder and neck.
Mr Attard described how on 27 July 2021, he engaged in a return to work with Toll Group. He was either required to cut the old Toll Group logo from old uniforms or was not provided any suitable duties and was left sitting in the lunch room with no work duties. Mr Attard was not trained in computers so was unable to perform any administrative duties. He was later advised by his employer to contact customers and asked them to return their outstanding pallets. Mr Attard reflected on how he was not provided any training or support with regard to performing these duties and he started to experience significant anxiety and panic in relation to needing to contact customers. He performed one day of work duties in this role but could not continue due to his deteriorating mental state. Mr Attard followed up with his general practitioner and was referred for further psychological treatment. He has not been able to return to work since August 2021.”
Dr Khan said:
“As a result of the subject injury, Mr Attard experienced gradual deterioration in his mental state characterised by low mood, anxious ruminations, panic, irritability, agitation, reduced energy, reduced motivation, reduced enjoyment and activities, social withdrawal, sleep disturbance with poor sleep maintenance, reduced appetite with weight loss exceeding 20 kg, impaired attention, impaired concentration, impaired memory, feelings of hopelessness and worthlessness, passive suicidal ideation, loss of self-confidence, self-doubt, loss of self- identity and difficulties with trust in interpersonal relationships.”
Dr Khan noted Mr Attard attended on his general practitioner on average every two weeks and had been referred for psychological treatment. Dr Khan noted Mr Attard followed up with his psychologist on average on a weekly basis. Mr Attard had been prescribed antidepressant medication and had recently required a presentation to hospital with symptoms of anxiety and panic.
Following mental state examination Dr Khan provided diagnosis of persistent depressive disorder with anxious distress which Dr Khan said was caused by the work-related injury Mr Attard sustained in the course of his employment with Toll. Dr Khan explained Mr Attard suffered physical injuries during his employment with Toll and the subsequent chronic pain and impact on Mr Attard’s day-to-day functioning had caused a gradual deterioration in Mr Attard’s mental state. Dr Khan said Mr Attard’s mental state was then further aggravated by the lack of care and support he received from Toll in his attempts to return to work.
Dr Khan considered Mr Attard suffered an incapacity for work resulting from his psychological injury and said it was unlikely Mr Attard would have any future capacity for work in his preinjury occupation. Dr Khan considered prognosis remained guarded.
In his subsequent report Dr Khan said there had been limited change in Mr Attard’s mental state since his previous assessment. Dr Khan noted Mr Attard continued to follow up with his general practitioner on average every four weeks. Dr Khan noted Mr Attard continued to follow up with his psychologist on average every week until his claim had been declined. Although Mr Attard had been referred for psychiatric treatment Dr Khan reported Mr Attard he had not been able to attend any psychiatric consultations as the cost of the consultations had not been approved. Dr Khan noted Mr Attard continued with his antidepressant medication.
Following mental state examination Dr Khan provided diagnosis of persistent depressive disorder with anxious distress.
In response to specific questioning Dr Khan confirmed Mr Attard’s persistent depressive disorder with anxious distress developed as a result of the physical injuries he sustained in the course of his employment with Toll. Dr Khan also confirmed Mr Attard had no current work capacity as a result of his psychological injury.

Dr Machart

Mr Attard was assessed by Dr Machart on 28 October 2021 in his capacity as independent medical examiner. Dr Machart is an orthopaedic surgeon. Dr Machart provided a report dated 18 November 2021. Dr Machart provided a consistent history of Mr Attard sustaining injury to his right shoulder on 29 November 2017, coming to surgical treatment on 28 October 2018 under the care of Dr Gupta with a return to work, reaggravation and further surgical treatment on 19 March 2020 under the care of Dr Trantalis.
Dr Machart reported:
“… the pain has not resolved completely. He had physiotherapy and more recently a cortisone injection with temporary benefit. He is seeing the doctor again next month.”
On enquiry of Mr Attard as to whether there was an issue with his left shoulder, Dr Machart reported:
“He told me about the left shoulder pain, which started about 12 months ago, on and off, and was reported to be due to ‘overcompensation’. I asked him to define this term in setting examples. He said that he experienced difficulties putting washing on the line, used the left hand more selectively, as well as ‘all activities’ without specifying”.
Dr Machart described Mr Attard’s current symptoms:
“… constant pain in the right shoulder of variable intensity, evident when reaching up and at night-time. Lesser and intermittent pain in the left shoulder, dominant arm”.
Following clinical examination and review of diagnostic imaging reports, Dr Machart provided opinion he did not see evidence of overuse in Mr Attard’s uninjured left shoulder. Relevant to Dr Khan’s opinion in his report dated 12 October 2021, Dr Machart said Dr Khan had provided insufficient information on the subject of left shoulder pathology as a consequential condition. Dr Machart said Dr Khan’s opinion is labelled generically without explanation or detail. Dr Machart went on to say that the notion of contralateral injury in shoulders is not supported by evidence based medicine. Dr Machart did not identify the “evidence based medicine” to which he referred.
Relevant to Mr Attard’s current work capacity, Dr Machart said Mr Attard is not totally disabled. Dr Machart noted Mr Attard undertook suitable duties in the middle of the year but ceased because he found the work too much. Dr Machart admitted there were psychological stresses suffered by Mr Attard in addition to the pain in the right shoulder. Although Dr Machart accepted Mr Attard should avoid using his right arm in overhead activities, he said there was no reason why Mr Attard’s work hours should be limited.

Dr Linda Thomas

Mr Attard was assessed on 12 November 2021 by Dr Thomas in her capacity as independent medical examiner. Dr Thomas is a clinical psychologist. Dr Thomas provided a report dated 18 November 2021. Dr Thomas talked of Mr Attard being depressed when his mother died. She described Mr Attard as attending on a psychologist for “about six months” and “she got him through”. She said once Mr Attard “got back to work he was instantly in a happy place”.
Dr Thomas reported a consistent history of Mr Attard sustaining injury to his right shoulder in the course of his employment with Toll, coming to surgical treatment under the care of Dr Gunpta, returning to work and suffering further injury to his right shoulder, and subsequently coming to surgical treatment under the care of Dr Trantalis.
Mr Attard reportedly explained to Dr Thomas that his return to work after his first surgical treatment was complicated in that he had been told by the safety officer that he needed to return to work in order to receive remuneration. Mr Attard said it was after his return to work on suitable duties “when the mental stuff started happening.” Mr Attard said he had not returned to work since he came to his second surgical treatment.
Dr Thomas reported Mr Attard took medication for his psychological injury and he was also under the care of psychologist. While Mr Attard had been referred to a psychiatrist, Mr Attard could not afford the psychiatric consultation fee. Mr Attard remained under the care of his general practitioner. Relevant to his symptomology, Dr Thomas reported:
“He feels rejected from work. He feels he has been discriminated against because he is unfit. He states he ‘didn’t ask for this’. He states they ‘tried to stick him in admin (administration) and his ‘stress levels went through the roof’. He got ‘stress in his shoulders’ and that increased his pain. He is ‘not good at talking on the phone’, he ‘would probably abuse someone’.”
Following psychological testing, the nature of which Dr Thomas did not identify, Dr Thomas provided diagnosis of dysthymia and said she did not find Mr Attard to be suffering from anxiety, pain disorder or a major depressive disorder. In response to specific questioning, Dr Thomas said the testing which Mr Attard had undertaken suggested a likelihood of feigning and exaggeration of various conditions. Dr Thomas said the testing which Mr Attard had undertaken supported a diagnosis of personality disorder, which was constitutionally derived. Dr Thomas concluded Mr Attard was not currently suffering from a psychological disorder, but rather he had low motivation for the task of re-entering the workforce.
Relevant to Mr Attard’s current work capacity, Dr Thomas concluded Mr Attard had capacity for suitable duties. She described Mr Attard as being able to withstand an extended interview with her, during which he demonstrated attention and concentration that were within normal limits.

Dr Jane Lonie

Mr Attard was assessed by Dr Lonie in her capacity as independent medical examiner. Dr Lonie is a neuropsychologist. Dr Lonie provided a report dated 26 April 2022. Dr Lonie reported a consistent history of Mr Attard sustaining injury to his right shoulder on 29 November 2017 in the course of his employment with Toll, coming to initial surgical treatment on 28 December 2018, and further surgical treatment on 19 March 2020, following which he did not return to work. Dr Lonie noted Mr Attard had developed symptoms of depression in the context of his mother’s death in 2015. Dr Lonie noted Mr Attard was prescribed antidepressant medication and attended psychological review on a weekly basis and general practitioner review on a monthly basis. Dr Lonie provided a summary of her neuropsychological findings relevant to Mr Attard, with comment that Mr Attard endorsed extremely severe levels of depression, severe levels of anxiety, and moderate levels of stress on a self-reported mood questionnaire. Dr Lonie expressed opinion Mr Attard’s reading abilities were commensurate with that of a nine-year-old and his spelling abilities were commensurate with that of an eight-year-old.
In response to specific questioning, Dr Lonie concluded Mr Attard presented with self-reported severe levels of depression and anxiety and while there was no indication (based upon validity findings in respect of his cognitive testing performances) of reduced effort or feigning of symptoms, Dr Lonie cautioned against the validity and accuracy of findings resulting from Mr Attard’s self-reporting in circumstances where Mr Attard demonstrated limited reading ability.
It is apparent Dr Lonie was reluctant to provide diagnosis of psychological injury.
Relevant to Mr Attard’s current work capacity, Dr Lonie said she could see no reason why Mr Attard could not return to work on a full-time basis in a position that placed very minimal demands on his written and reading skills. In response to specific request for opinion as to Mr Attard’s fitness for employment in the roles of warehouse administrator, car park attendant, retail worker, and/or product assembler, Dr Lonie said Mr Attard has the capacity to return to each of these roles “on the proviso that the roles do not place demands upon him which surpass his limited reading and writing abilities.”

Revised Work Capacity Assessment

Trinitis provided a revised work capacity assessment dated 9 May 2022 following further functional and vocational assessment of Mr Attard on 27 April 2022.
Mr Bekric, physiotherapist, conducted the functional assessment and concluded Mr Attard was able to perform the identified employment options of forklift driver, product assembler and delivery driver on the basis of a 40 hour week. Mr Devlin, rehabilitation counsellor, identified the employment options referred after he considered the information gathered during vocational assessment regarding Mr Attard’s education/qualification, employment history and transferrable skills and Mr Attard’s current work capacity determined at functional assessment.

Dr Surgeesh Pathirana

Mr Attard was independently assessed by Dr Pathirana. The purpose of assessment was to enable Dr Pathirana to provide written opinion (in part) “on Mr Attard’s capacity to perform the inherent requirement of his role” with Toll. Dr Pathirana is a specialist in occupational healthcare. Dr Pathirana provided a report dated 30 June 2022 following assessment of Mr Attard the same day.
In his report Dr Pathirana provided a consistent history of Mr Attard sustaining injury to his right shoulder on 29 November 2017 in the course of his employment with Toll and consequently coming to surgical treatment on 28 February 2018 under the care of Dr Gupta and further surgical treatment on 19 March 2020 under the care of Dr Trantalis, following which Mr Attard did not successfully return to work.
Dr Pathirana noted that while this later surgical treatment under the care of Dr Trantalis improved Mr Attard’s range of movement and pain, Mr Attard continued to experience ongoing exacerbations of right shoulder pain, and “also experienced left shoulder pain secondary to using the left arm more during his recovery from right shoulder surgery.” Dr Pathirana noted Mr Attard said he had an ultrasound scan of the left shoulder that demonstrated bursitis. Dr Pathirana reported Mr Attard has had no treatment for his left shoulder pain.
Dr Pathirana relevantly noted Mr Attard said he developed symptoms of depression and anxiety secondary to his delayed recovery, ongoing pain and uncertainty about his ongoing employment with Toll. Dr Pathirana noted Mr Attard had consulted with his general practitioner who referred him for psychological treatment and prescribed him antidepressant medication, which Mr Attard reportedly took regularly.
Dr Pathirana reported Mr Attard made mention he had constant pain in his right shoulder exacerbated by overhead movements, awkward postures and lifting heavy things. Dr Pathirana reported Mr Attard made mention he had intermittent left shoulder pain exacerbated by repetitive movements of the left arm and overhead work. Dr Pathirana reported Mr Attard described his mood as low, and Dr Pathirana noted Mr Attard had physical symptoms of anxiety (such as palpitations and sweating).
Following physical examination and brief mental state examination (cautioned with concession he is not a psychologist or psychiatrist) Dr Pathirana provided diagnosis:
(a)    right shoulder injury requiring two surgical interventions and extensive rehabilitation with physiotherapy and an exercise program. Ongoing pain and restricted range of movements, requiring significant pain relief medication;
(b)    left shoulder pain, likely impingement syndrome. Appears to have developed secondary to overuse of the left arm due to the right shoulder injury, and
(c)    depression and anxiety.
Dr Pathirana provided opinion:
“Mr Attard develop chronic pain in his right shoulder following a work-related injury in November 2017. He has undergone various treatment since then, including surgical intervention, physiotherapy, and an exercise program. He is still experiencing significant pain in the right shoulder, resulting in significant disability. He has also developed pain in the left shoulder, most likely due to the overuse of the left arm, which has not been treated as yet.
…
Mr Attard’s recovery from both shoulder conditions has been complicated by the development of depression and anxiety, likely due to chronic pain and resulting disability.
…
Mr Attard has not been able to return to preinjury duties since the injury in 2017. He has had prolonged absences from work, and his attempt to return to suitable duties last year had been unsuccessful. He is currently certified as unfit for any work.
Given the history to date, nature of his preinjury role, and concurrent psychosocial factors, his prognosis to return to the inherent requirements of his preinjury role as a forklift operator in the foreseeable future is poor. Repetitive use of his arms, overhead work, lifting heavy objects, heavy pushing and pulling and sustained awkward postures of his arms are likely to increase the risk of aggravating his shoulder conditions. Poor sleep and being on significant pain relief medication in combination with antidepressant medication is likely to impair his ability to consistently attend work and perform satisfactorily at work. They would also impair his ability to operate forklifts or drive his car safely.
Currently, it appears to me that his psychological condition is the main barrier returning to some type of work. However detailed assessment of his fitness for work from a psychological perspective is outside my area of expertise. In the long-term, Mr Attard will require permanent restrictions in his duties due to his shoulder condition. Therefore, the safest approach would be for him to redeploy into a sedentary role in the long-term.”

In response to specific questioning about Mr Attard’s current work capacity, Dr Pathirana said:
“…currently, Mr Attard has been certified as unfit for work. This is due to a combination of his physical and psychological condition, although the latter appears to be the main reason. I agree that he is currently unfit for work … Ideally, it would be good for Mr Attard to return to some sort of work, as this would likely benefit him, particularly from a psychological perspective. However, when and how this will occur is difficult to comment on at this stage. This would largely depend on the successful treatment of his psychological deconditioned and improved pain management.”
Dr Pathirana appeared sufficiently concerned about Mr Attard’s mental fragility to add:
“…due to the complex and potentially sensitive nature of this report, I suggest that it not be released directly to Mr Attard. Rather, if it is to be provided to him, I suggest that it is released to his GP first so that he can receive it from his GP in a supported manner, with the opportunity to ask questions.”

Submissions

Mr Doak and Mr McEnaney provided written submissions, which are available to the parties. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance they have afforded me in this matter. While I have not reproduced counsels’ submissions here, I note that although Mr McEnaney has submitted “a general order for section 60 expenses” should be entered in favour of the Mr Attard, there is no claim made under s 60 of the 1987 Act before me to determine.

Determination

Liability is not disputed for the injury Mr Attard sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll. However liability is disputed for the consequential condition Mr Attard alleges he has sustained to his left shoulder and liability is also disputed for the secondary psychological injury Mr Attard alleges he has sustained.
Mr Attard has the onus of proving he has sustained a consequential condition in his left shoulder and that he has sustained a secondary psychological injury resulting from the injury he sustained to his right shoulder on 29 November 2017. This is a question of fact and consideration of the factual and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[1] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[1] [2008] NSWCA 246 (Nguyen).
With allegation by Mr Attard that the condition he has sustained in his left shoulder is in the nature of a consequential condition and his psychological injury is in the nature of a secondary psychological injury, in Trustees of the Roman Catholic Church for the Dioceses of Paramatta v Brennan[2] Deputy President Snell relevantly discussed consequential/secondary conditions/injuries such as these and said:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon V Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCP 8. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act”.
[2] [2016] NSWWCCPD23.
In the circumstances of this particular matter it is important to recognise the injury Mr Attard sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential condition in the left shoulder and secondary psychological injury. Relevant to this issue of causation of the consequential condition Mr Attard alleges he has sustained to his left shoulder and the secondary psychological injury Mr Attard alleges he has sustained, in Kooragang v Cement Pty Ltd v Bates[3] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[3] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).

Consequential condition in the left shoulder

Mr Attard said he developed a consequential condition in his left shoulder after he sustained injury to his right shoulder on 29 November 2017 in the course of his employment with Toll. He explained that following surgical treatment under the care of Dr Gupta on 28 February 2018 he relied heavily on his left shoulder and left arm to undertake his activities of daily living. He explained that following the exacerbating injury to his right shoulder during his return to work, he again relied heavily on his left shoulder to undertake his activities of daily living. He explained that following further surgical treatment of his right shoulder on 19 March 2020 he relied heavily on his left shoulder to undertake his activities of daily living. With the symptoms in Mr Attard’s left shoulder deteriorating he was referred for diagnostic imaging in April 2021 and at the time of making his statements in November 2021 and June 2022 Mr Attard continued to complain of symptoms in his left shoulder. While Mr Doak has correctly submitted there is an absence of support from one of Mr Attard’s treating general practitioners, Dr Islam, relevant to Mr Attard’s allegation of a consequential condition in his left shoulder, it remains the case that Mr Attard was referred for diagnostic imaging of his left shoulder in April 2021 with complaint (albeit perhaps not to Dr Islam) Mr Attard said, of his left shoulder becoming “progressively worse” while he continued to suffer constant pain in right shoulder. I have no reason not to accept Mr Attard’s evidence regarding the deterioration of symptoms in his left shoulder at this point in time, which resulted in referral for diagnostic imaging.
It is evident from the clinical records of Campbelltown Medical Centre, Myhealth Oran Park, Dr Trantalis, JT Physio and Dr Lieu that Mr Attard suffers from a problematic right shoulder, which remains symptomatic despite surgical treatment on two occasions and physiotherapy treatment. It is evident from the clinical records of Myhealth Oran Park that by September 2021 Dr Samaranayake had noted signs of left shoulder overuse and recommended restricted use of Mr Attard’s left shoulder to avoid overcompensation.
When Dr Khan orthopaedically assessed Mr Attard on 12 October 2021, at which time he had the opportunity to review the MRI left shoulder dated 27 April 2021, Dr Khan formed the view Mr Attard had sustained a consequential condition in his left shoulder as a result of over reliance on his left shoulder “to protect his injured right shoulder”, being opinion he subsequently confirmed on further assessment on 15 March 2022.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Mr Attard has discharged the onus required of him and I am satisfied on the balance of probability that Mr Attard sustained consequential condition in his left shoulder as a result of the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll. I am of the view Mr Attard provided a credible history regarding the onset of his left shoulder symptoms due to overcompensation following his right shoulder injury and the two surgical procedures on that shoulder. Mr Attard has the support of Dr Sikhander Khan. I prefer the opinion provided by Dr Khan to that provided by Dr Machart as Dr Machart merely reported he did not see evidence of overuse in Mr Attard’s left shoulder and while he explained the notion of contralateral injury in shoulders is not supported by evidence based medicine, Dr Machart failed to identify the evidence based medicine to which he referred. Moreover, Dr Khan had the opportunity to assess Mr Attard on two occasions, with reassessment occurring in early 2022, whereas Dr Machart was only afforded the opportunity to his assess Mr Attard on one occasion in late 2021. It is not apparent Dr Machart was afforded the opportunity to review and comment on the diagnostic imaging relevant to Mr Attard’s left shoulder, which was available to Dr Khan at the time of his reporting, and neither is it apparent Dr Machart was afforded the opportunity to review and comment on Dr Khan’s report following his re-assessment of Mr Attard. I am comforted in my conclusion by the supportive opinion provided by Mr Attard’s treating general practitioner, Dr Samaranayake, who has had the opportunity to review Mr Attard on a number of occasions and who has been keenly involved in Mr Attard’s medical care, and the supportive opinion provided by Dr Pathirana who accepted Mr Attard’s left shoulder was symptomatic at the time of his assessment of Mr Attard and conceded Mr Attard’s left shoulder condition “appears to have developed secondary to overuse of the left arm due to the right shoulder injury.”

Secondary psychological injury

Mr Attard said that due to the drawn out and largely unsuccessful rehabilitation process he underwent following the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll, he developed secondary psychological injury in the nature of anxiety and depression. Mr Attard said that by the time he came under the orthopaedic care of Dr Trantalis due to his persistent right shoulder symptoms, he was feeling “very down, depressed and anxious” and his inability to return to his pre-injury duties had made him feel “increasingly unmotivated, depressed and worthless”. Mr Attard described his inability to return to his pre-injury duties as having taken a toll on him and at the time of making his statements Mr Attard said he remained low and unmotivated. At the time of making his most recent statement Mr Attard said he struggled constantly with suicidal ideation and said, “I feel broken inside”.
Mr Attard’s initial treating general practitioner, Dr Islam, reported as early as 14 November 2019 that Mr Attard’s mental health was deteriorating “due to his physical injury and complicated management”. Dr Islam noted at that time that Mr Attard required psychotherapy and antidepressant medication. On 2 September 2021 Mr Attard’s subsequent treating general practitioner, Dr Samaranayake noted Mr Attard had reported suicidal ideation in the preceding months “likely due to stress, depression and anxiety associated with the return to work outcome and lack of support previously”. On 24 October 2021 Dr Samaranayake provided diagnosis of major depressive disorder secondary to the injury Mr Attard had sustained to his right shoulder, chronic pain and disability, and under cover of letter dated 4 November 2021 Dr Samaranayake was sufficiently concerned about the deterioration in Mr Attard’s mental state that he referred him for urgent psychiatric review and opinion regarding inpatient admission for psychiatric management for what he considered was “high risk” suicidal ideation expressed by Mr Attard.
Mr Attard initially came under the psychological care of Ms Rangiah on 14 November 2019. Ms Rangiah provided diagnosis of acute stress disorder, adjustment disorder with low mood and high anxiety, which she considered was significantly attributed to by both his inability to return to his pre-injury duties because of the injury he had sustained to his right shoulder on 29 November 2017 and his demonstrated inability to undertake the administrative suitable duties provided to him by Toll because of his poor literary skills. Mr Attard subsequently came under the psychological care of Ms Yu. In her report dated 17 February 2022 Ms Yu confirmed there was no suggestion the psychological symptoms currently suffered by Mr Attard were attributable to those he had earlier experienced with the death of his mother and confirmed also that Mr Attard’s inability to return to work had impacted his mental health.
When Dr Abdul Khan psychiatrically assessed Mr Attard, Dr Khan noted Mr Attard had previously experienced mental health fragility with his mother’s death, which stabilised with treatment. Dr Khan took a history of Mr Attard’s mental health subsequently deteriorating during the return to work on suitable duties process Mr Attard was subjected to by Toll following the injury he sustained to his right shoulder on 29 November 2017, which Dr Khan reported left Mr Attard feeling “unsupported, ignored and dismissed” by Toll. With Mr Attard experiencing significant anxiety and panic associated with his return to work on suitable duties, Dr Khan noted Mr Attard was referred for psychological review by his general practitioner. Dr Khan noted that at the time of initial assessment, Mr Attard had been prescribed anti-depressant medication, suffered suicidal ideation and was under the care of a psychologist. Dr Khan provided diagnosis of persistent depressive disorder with anxious distress. Dr Khan provided opinion the cause of Mr Attard’s psychological injury was the chronic pain that resulted from the injury Mr Attard sustained to his right shoulder, the impact this injury had on his activities of daily living, and the lack of care and support Toll reportedly offered to Mr Attard with the return to work on suitable duties process. On subsequent review, Dr Khan reported there was limited change in Mr Attard’s mental health.
When Mr Attard was assessed by Dr Machart, Dr Machart noted Mr Attard’s ceasing work with Toll had come about because of a combination of a deterioration in Mr Attard’s mental health and the chronic pain he suffered in his right shoulder.
When Mr Attard was assessed by Dr Thomas, while Dr Thomas provided diagnosis of psychological injury following unidentified psychological testing, Dr Thomas ultimately concluded Mr Attard was not suffering psychological injury but rather suffered low motivation in returning to work.
When Mr Attard was assessed by Dr Lonie, Dr Lonie appeared reluctant to provide diagnosis of psychological injury following self-reporting by Mr Attard in circumstances where Mr Attard demonstrated limited reading ability.
When Mr Attard was assessed by Dr Pathirana, Dr Pathirana noted psychological injury sustained by Mr Attard in the context of the chronic pain he suffered in his right shoulder, his consequent disability and his uncertain ongoing employment with Toll.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Mr Attard has discharged the onus required of him and I am satisfied on the balance of probability that Mr Attard sustained secondary psychological injury as a result of the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll. I am of the view Mr Attard has provided a credible history regarding the deterioration of his mental health following his right shoulder injury and the ultimately unsuccessful return to suitable duties process to which he was subjected by Toll. Mr Attard has the support of Dr Khan and also the support of Dr Pathirana. I prefer the independent psychiatric opinion provided by Dr Khan to that provided by Dr Thomas in her capacity as independent clinical psychologist as Dr Thomas failed to identify the testing on which she relied in providing conclusion Mr Attard had not sustained psychological injury (despite her diagnosis of dysthymia) and as a consequence I am of the view her opinion provides minimal evidentiary weight. I prefer the opinion provided Dr Khan to that of Dr Lonie in her capacity as independent neuropsychologist as it is apparent Dr Lonie’s failure to provide diagnosis of psychological injury is only based on caution against the validity of Mr Attard’s self-reporting in circumstances where Mr Attard has demonstrated illiteracy. I am comforted in my conclusion by the supportive opinions provided by Mr Attard’s treating general practitioners, Dr Islam and Dr Samaranayake, and his treating psychologists, Ms Rangiah and Ms Yu, all of whom have been involved in Mr Attard’s day to day mental health care.

Capacity

Mr Attard’s claim for weekly compensation payable under s 38 of the 1987 Act from 24 May 2021 is disputed.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 38 of the 1987 Act in part provides:
(a) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(b) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
Section 38 of the 1987 requires consideration as to whether an injured worker has “no current work capacity” or “current work capacity” as defined by Schedule 3 of the 1987 Act.
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
the worker’s place or resident.”

Assessment of Mr Attard’s current work capacity from 24 May 2021 ongoing involves consideration as to whether Mr Attard has no current work capacity or whether Mr Attard has a current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of Mr Attard’s capacity to undertake not only his pre-injury employment with Toll but also his capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar.[4] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[4] [2014] NSWWCCPD 55 (Dewar).
It is not disputed Mr Attard sustained injury to his right shoulder on 29 November 2017 in the course of his employment with Toll. Mr Attard explained that following his initial surgical treatment to his right shoulder under the care of Dr Gupta and his subsequent surgical treatment to his right shoulder under the care of Dr Trantalis, he relied heavily on his left shoulder and I accept Mr Attard sustained a consequential condition in his left shoulder resulting from the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll. Mr Attard explained that following the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll his mental health deteriorated with his inability to successfully return to work with Toll leaving him feeling “broken inside” and experiencing suicidal ideation, and I accept Mr Attard sustained secondary psychological injury resulting from the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll.
There is a plethora of evidence before the Commission addressing Mr Attard’s current work capacity during the period of his claim for weekly compensation. However, I do not consider the work capacity assessment dated 18 September 2020 prepared by Trinitis or the report of Dr Lee dated 26 August 2020 are of assistance to me in determining Mr Attard’s current work capacity during the period of his claim for weekly compensation as these reports are relevant to assessment of Mr Attard at a time significantly prior to 24 May 2021, being the date of the commencement of his claim for weekly compensation payable under s 38 of the 1987 Act.
Mr Attard said as at 1 November 2021 and 12 June 2022 that he suffers bilateral shoulder pain and restriction and his mental health has completely deteriorated. Mr Attard also relevantly explained he left school during his year 9, has always worked in physically demanding occupations, has never worked in an administrative occupation, has very limited computer skills and is illiterate.
In her report dated 31 January 2021, Ms Rangiah reported Mr Attard felt overwhelmed at the prospect of returning to work in administrative type work “as he knows he does not have the skillset to do this”. She said of Mr Attard:
“His future as far as employment goes, feels overwhelmingly unattainable.”
When reviewed by JT Physio on 11 May 2021, Mr Attard was noted to have no current work capacity and in the JT Physio discharge summary dated 21 March 2022 it was noted that despite his compliance with treatment, Mr Attard had made minimal improvement.
When reviewed by Dr Trantalis on 30 June 2021 Dr Trantalis described Mr Attard’s right shoulder as symptomatic.
While Recare provided opinion in a vocational assessment report dated 23 September 2021 that Mr Attard may have current work capacity in a retail assistant type role, Recare cautioned that prior to Mr Attard applying for such a role he should undertake a work trial to improve his fitness and ascertain his tolerance for standing. In a subsequent report dated 4 February 2022 Recare conceded, following review of medical information made available relevant to Mr Attard’s deteriorating mental health, that any form of return to work by Mr Attard may not in fact be tenable.
While on 30 September 2021 Dr Samaranayake responded in a questionnaire forwarded to him by Platinum Rehabilitation Group that he considered Mr Attard had current work capacity to perform the duties of a warehouse administrator or carpark attendant, Dr Samaranayake provided his opinion on the basis such duties required minimal literacy skills. On 24 October 2021 Dr Samaranayake provided opinion Mr Attard’s ability to work was affected by his poor literacy and limited education. Dr Samaranayake cautioned too that Mr Attard’s mental health had recently deteriorated, which he considered could pose a very real barrier to him finding and maintaining work. Of note also is that within the next month, Dr Samaranayake referred Mr Attard for urgent psychiatric review and opinion because he considered Mr Attard to be a high risk suicide.
Dr Sikhander Khan provided opinion on 12 October 2021 that Mr Attard would benefit from retraining so as to return him to any form of sustained suitable employment. Dr Khan noted Mr Attard’s pre-injury duties had always been physical in nature and Mr Attard had limited transferrable skills which would enable him to undertake duties that are administrative in nature. Dr Khan said of Mr Attard:
“… it is unlikely that he will ever again engage in gainful employment on a sustainable basis in any occupation for which he is reasonably qualified by education, training or experience”.
Following subsequent review, Dr Khan provided opinion on 15 March 2022 that Mr Attard’s bilateral shoulder problems continued to interfere with his ability to return to work.
Dr Abdul Khan provided opinion on 18 October 2021 that Mr Attard suffered an incapacity for work resulting from his psychological injury and considered it unlikely Mr Attard would have any future capacity to work in his pre-injury duties with Toll. Following subsequent review Dr Khan provided opinion on 2 July 2022 that Mr Attard had no current work capacity resulting from his psychological injury.
Dr Machart provided opinion on 18 November 2021 that Mr Attard had a current capacity for work, but accepted Mr Attard should avoid using his right arm in overhead activities. Dr Machart also accepted Mr Attard’s mental health was fragile.
I have previously touched on the evidentiary weight I can afford Dr Thomas’ opinion and while I note Dr Thomas expressed opinion in her report dated 18 November 2021 that Mr Attard had a current capacity for working suitable duties, she provided such opinion in the context of Mr Attard having suffered no psychological injury. As Dr Thomas is not qualified to provide opinion as to Mr Attard’s current work capacity resulting from injury other than psychological injury, I reject Dr Thomas’ opinion as to Mr Attard’s current work capacity.
In a report dated 17 February 2022 Ms Yu noted Mr Attard’s failed attempt to return to suitable duties, which were administrative in nature, with the result he had been assigned no meaningful duties and a consequential deterioration in his mental health. Ms Yu provided opinion that at the time of writing Mr Attard had no current work capacity. While Ms Yu considered Mr Attard “may be suitable” in the future for a gradual return to work with an alternate employer to Toll, she noted Mr Attard had poor written ability and minimal knowledge of technology. Ms Yu considered upskilling may increase Mr Attard’s prospects of finding work.
On review on 28 March 2022, while Dr Lieu noted Mr Attard had not returned to work following surgical treatment to his right shoulder under the care of Dr Trantalis, he noted Mr Attard was “looking to reskill” and had been certified fit for administrative duties. Dr Lieu acknowledged “this however has been difficult given that he is also dyslexic”. Dr Lieu acknowledged too that there was unlikely to be any significant improvement in Mr Attard’s “very irritable” right shoulder.
In a report dated 26 April 2022, while Dr Lonie provided opinion Mr Attard could return to work as a warehouse administrator, car park attendant, retail worker and/or product assembler, her opinion was provided on the basis the demands of such roles did “not surpass” Mr Attard’s very limited literacy skills.
In a report dated 30 June 2022, Dr Pathirana provided opinion in response to specific questioning about Mr Attard’s current work capacity. He said:
“… currently, Mr Attard has been certified as unfit for work. This is due to a combination of his physical and psychological condition, although the latter appears to be the main reason. I agree that he is currently unfit for work … Ideally, it would be good for Mr Attard to return to some sort of work, as this would likely benefit him, particularly from a psychological perspective. However, when and how this will occur is difficult to comment on at this stage. This would depend on the successful treatment of his psychological condition and improved pain management”.
I have reviewed the evidence as a whole and I have carefully considered counsels’ submissions. Mr Attard clearly has no current work capacity for his pre-injury duties with Toll. It is evident Mr Attard’s shoulders are symptomatic and it is also evident Mr Attard’s mental health is of considerable concern. It is evident Mr Attard’s efforts to return to the workforce have been and will continue to be significantly hampered by the fact he has always undertaken duties that are physical in nature and against a back drop of limited schooling and limited computer and literacy skills, Mr Attard is required to now undertake duties that are not physical in nature.
I accept Mr Attard has discharged the onus of proof required of him and I am satisfied on the balance of probability that Mr Attard has had no current work capacity since 24 May 2021 and is likely to continue indefinitely to have no current work capacity resulting from the injury he sustained to his right shoulder on 29 November 2017.

Quantification of entitlement to weekly compensation

Mr Attard’s PIAWE is agreed at $1,087.09. I have determined Mr Attard has had no current work capacity since 24 May 2021 resulting from the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll and I have determined Mr Attard is likely to continue indefinitely to have no current work capacity resulting from that injury as required by s 38(2) of the 1987 Act. Mr Attard has entitlement to weekly compensation payable under s 38(2) of the 1987 Act from 24 May 2021 to date and continuing in accordance with the 1987 Act at the rate of $869.67 per week, as indexed.

SUMMARY

It is not disputed Mr Attard sustained injury to his right shoulder on 29 November 2017 in the course of his employment with Toll and I have determined Mr Attard has sustained consequential condition in his left shoulder and secondary psychological injury resulting from that injury.
Mr Attard has had no current work capacity since 24 May 2021 resulting from the injury he sustained to his right shoulder on 29 November 2017 in the course of his employment with Toll and is likely to continue to indefinitely have no current work capacity resulting from that injury. Mr Attard’s PIAWE is agreed at $1,087.09. Mr Attard has entitlement to weekly compensation payable under s 38(2) of the 1987 Act from 24 May 2021 to date and continuing in the accordance with the 1987 Act at the rate of $869.67 per week, as indexed.

[2023] NSWPIC 42

6 February 2023