Borja v Kolder Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Borja v Kolder Pty Ltd [2024] NSWPIC 90
APPLICANT:	Reynaldo Borja
RESPONDENT:	Kolder Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	27 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Injury to left shoulder disputed including a dispute as to substantial contributing factor; dispute as to the giving of notice of injury pursuant to section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act); sections 254, 255 of the 1998 Act, sections 4, 9A,36, 37, 60 of the 1987 Act, and section 43(2) of the Personal Injury Commission Act 2020 referred to; Onesteel Reinforcing Pty Ltd v Sutton, Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Taylor v J & D Stephens Pty Ltd, Perry v Tanine Pty Ltd t/as Ermington Hotel , Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd, Federal Broom Co Pty Ltd v Semlitch , Cant v Catholic Schools Office, AV v AW, Ariton Mitic v Rail Corporation of NSW, and Mason v Demasi referred to; Held – that the applicant sustained injury to his left shoulder in the course of his employment with the respondent on 26 November 2020; that the applicant’s employment was a substantial contributing factor to the injury sustained on 26 November 2020; that the applicant gave notice of his injury on 26 November 2020 in accordance with section 254 of the 1998 Act; that the applicant was totally incapacitated for work from 23 February 2021 for a period of 130 weeks as a result of the injury sustained to his left shoulder in the course of his employment with the respondent on 26 November 2020.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury to his left shoulder in the course of his employment with the respondent on 26 November 2020. 2. That the applicant’s employment was a substantial contributing factor to the injury sustained on 26 November 2020. 3. That the applicant gave notice of his injury on 26 November 2020 in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998. 4. That the applicant was totally incapacitated for work from 23 February 2021 for a period of 130 weeks as a result of the injury sustained to his left shoulder in the course of his employment with the respondent on 26 November 2020. The Commission orders: 5. The respondent to pay the applicant: a. Pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act): i. $871.01 per week from 23 February 2021 to 31 March 2021, and ii. $895.85 per week from 1 April 2021 to 25 May 2021. b. Pursuant to s 37 of the 1987 Act and subject to indexation pursuant to s 82A of the 1987 Act $895.85 per week from 26 May 2021 until a total of 130 weeks of weekly compensation has been paid to the applicant. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act for injury sustained to the applicant’s left shoulder on 26 November 2020.

STATEMENT OF REASONS

BACKGROUND

Reynaldo Borja, the applicant, was at all relevant times employed by Kolder Pty Limited, the respondent, as a factory hand.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alternatively alleges:
(a)    that he sustained injury to his left shoulder on 26 November 2020 when picking up timber from the floor to be placed on a trolley;
(b)    that he sustained injury to his left shoulder due to the nature and conditions of his employment which required him to perform repetitive heavy and strenuous tasks involving bending, lifting, overreaching and steering forklifts;
(c)    that he sustained an aggravation of pre-existing degenerative changes in his left shoulder due to the nature and conditions of his employment which required him to perform repetitive heavy and strenuous tasks involving bending, lifting, twisting, overhead lifting, overreaching and steering forklifts; or alternatively
(d)    that he sustained an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his left shoulder.

The applicant had also alleged that he had suffered a sleep disorder and psychological injury however by consent the Application to Resolve a Dispute (ARD) was amended by deleting all allegations of injury both personal and consequential in respect to sleep disorder and psychological injury. At the arbitration hearing the applicant also withdrew reliance on injury to the neck.
The applicant claims:
(a) Weekly compensation for the periods:
(i)21 February 2021 to 24 May 2021 pursuant to s 36 of the Workers Compensation Act 1987 (1987 Act), and
(ii)25 May 2021 to 20 August 2023 pursuant to s 37 of the 1987 Act.
(b) General order pursuant to s 60 of the 1987 Act for past and future medical, hospital and related treatment expenses.
The applicant had also claimed weekly compensation from 21 August 2023 ongoing pursuant to s 38 of the 1987 Act however at the arbitration hearing the applicant closed the claim for weekly benefits at the end of 130 weeks on 20 August 2023.
The applicant’s pre-injury average weekly earnings (PIAWE) is agreed at $916.85 as calculated up to 26 November 2020.
It is the applicant’s evidence that on 26 November 2020 whilst in the course of his duties with the respondent he picked up a piece of timber which was about 2.4m long and 0.45m wide weighing approximately 10kg when he felt a sudden onset of discomfort in his left shoulder.
The applicant worked on until February 2021 ceasing duties on or about 22 February 2021.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    the respondent disputes that the applicant has sustained injury to his left shoulder as defined by s 4 of the 1987 Act;
(b)    pursuant to s 9A of the 1987 Act the respondent disputes that the applicant’s employment was a substantial contributing factor to the alleged injury;
(c) the respondent disputes that the applicant gave notice of the alleged injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) ;
(d)    the respondent disputes that the applicant has suffered incapacity for work from an injury, and
(e)    pursuant to s 60 of the 1987 Act the respondent disputes that any medical or hospital treatment etc is reasonably necessary as a result of an injury received by the applicant.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
1 February 2024. Mr Tom Grimes, counsel, instructed by Mr Nassir Bechara, solicitor, appeared for the applicant, who was present. Mr David Saul, counsel, instructed by Mr Mick Franco, solicitor, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

The respondent objected to the second paragraph of the statement of Ms Nolante Payopay dated 27 November 2021 being admitted into evidence. The statement of Ms Payopay appears at page 22 of the attachments to the ARD.
The respondent objected to the paragraph on the basis that it contained hearsay evidence and was of no probative value. The applicant pressed for the admission of the statement into evidence submitting that the laws of evidence do not apply, that it is firsthand hearsay, that the evidence is clearly probative and clearly relevant as to the knowledge of the employer as to the injury and validation of the applicant’s evidence.
I rejected the respondent’s application. In rejecting the application I observed that the parties could provide submissions as to the weight which should be given to the statement evidence of Ms Payopay I also indicated that I would provide written reason as part of this determination which I now give.
The Commission is not bound by the rules of evidence[1] and there is no prohibition on hearsay evidence. The issue is a matter of weight, what reliance can be placed on the evidence. As Allsop observed in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2]:
“The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material…”
[1] Section 43(2) Personal Injury Commission Act 2020.
As was submitted on behalf of the applicant the evidence of Ms Payopay is potentially relevant to the matters in issue. The parties could and did submit as to the weight to be given to the subject paragraph and its probative value.

Oral evidence

Neither party sought leave to adduce oral evidence.
The parties agreed that the matter could proceed on the papers without oral evidence being taken and submissions being made in respect to credit without either party taking or relying on any procedural fairness or Browne v Dunn (1893) 6 R 67 points.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

Injury

The applicant alleges:
(a)    that he sustained injury to his left shoulder on 26 November 2020 when picking up timber from the floor to be placed on a trolley; or alternatively
(b)    that he sustained injury to his left shoulder due to the nature and conditions of his employment which required him to perform repetitive heavy and strenuous tasks involving bending, lifting, overreaching and steering forklifts; or alternatively
(c)    that he sustained an aggravation of pre-existing degenerative changes in his left shoulder due to the nature and conditions of his employment which required him to perform repetitive heavy and strenuous tasks involving bending, lifting, twisting, overhead lifting, overreaching and steering forklifts; or alternatively
(d)    that he sustained an aggravation, acceleration, exacerbation or deterioration of a degenerative process in his left shoulder.
The respondent disputes that the applicant has sustained an injury to his left shoulder as defined by s 4 of the 1987 Act. The respondent also disputes that the applicant’s employment was a substantial contributing factor to the alleged left shoulder injury.
Section 4 of the 1987 Act relevantly defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means-
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,..”
The applicant bears the onus of proving injury on the balance of probabilities.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Injury simpliciter, or what is commonly referred to as a frank injury, requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state: Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear). “Suddenness” is not a necessary requirement: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May). Although “suddenness” may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.
In Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287, (Taylor) the Court of Appeal considered the meaning of a disease injury in the context of a “shearer’s back”. McColl AP at [34] stated:
“It can be seen that there are three components to a ‘disease injury’ – the existence of a ‘disease’, that the disease was contracted (or aggravated etc) in the course of employment, and that the employment was the main contributing factor to the contraction (or aggravation etc) of the disease. If all three are demonstrated, the worker has suffered a ‘disease injury’ within the meaning of s 4(b), and is entitled to benefits as prescribed by Part 3 of the WC Act.”
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry) Burke CCJ held carpal tunnel syndrome to be a ‘disease’, saying:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
In Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd [2006] NSWWCPD 132 (Raymond) Roche ADP stated at [27]:
“The Arbitrator found that the Respondent Worker’s condition was a disease and referred to and relied on Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482, Commissioner of Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 and Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 to justify that conclusion. From those cases he concluded that a ‘disease is a reference to a pathological condition that continues to operate according to its pathological nature and which is commonly called a disease’…. The Arbitrator also relied on the decision of Judge Burke in Perry v Tanine Pty Ltd [1998] NSWCC 14; (1998) 16 NSWCCR 253 where his Honour quoted with approval the definition of disease in Blakiston’s Gould Medical Dictionary that a disease was a failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, or organ or system of the body…. Applying those tests the Arbitrator concluded that the Respondent Worker’s condition was ‘properly categorised as a disease’…. I agree with that approach and the conclusion reached….”
In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant) said at [17]:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
Deputy President Snell in AV v AW [2020] NSWWCCPD 9 (AV) considered the test of main contributing factor in s 4(b) of the 1987 Act at [77]-[78] stating:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

Arbitrator Harris considered the question of “main contributing factor” in Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic) and said:
“The opening words of the amended s. 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. In my view, those opening words therefore direct attention to the work-related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process…
In my view, the amendment to s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”

The medical evidence supports, and the respondent does not dispute, that the applicant does suffers from a left shoulder condition.
Dr Doron Sher, the applicant’s treating shoulder surgeon, reported to Dr Niumeitolu, the applicant’s general practitioner (GP), on 19 November 2021 that the applicant had “very, very severe pain”.[2] Dr Sher diagnosed a rotator cuff tear for which the doctor recommended surgical intervention.[3] On 21 April 2022 the applicant underwent arthroscopic repair of his left rotator cuff at St Lukes Private Hospital.[4]
[2] ARD   p 94.
[3] ARD   p 94.
[4] ARD   p 122.
Dr Bodel, orthopaedic surgeon, who provided forensic medical reports to the applicant, diagnosed a rotator cuff tear in the region of the left shoulder.[5] Dr Breit, who provided forensic medical reports to the respondent, diagnosed a frozen shoulder.[6]
[5] ARD pp 80, 91.
[6] Reply pp 115, 124.

There is no dispute that the applicant suffers from a left shoulder condition. It is however the respondent’s case that the applicant’s left shoulder condition is not related to his employment with the respondent.
I accept the submission made by Mr Grimes on behalf of the applicant that the applicant’s work duties with the respondent were physical in nature. The evidence supports that the applicant’s duties were physical in nature and Mr Saul on behalf of the respondent conceded that the applicants work duties with the respondent were physical.
It is the applicant’s evidence that his duties were heavy and physical requiring him to constantly and repetitively bend, lift including overhead lifting, overreach and steer forklifts.[7]
[7] ARD p 4.
It is the applicant’s evidence that his duties as a factory hand with the respondent included warehousing and dispatch work. He collected order items, using a trolley, which mostly included bundles of timber. The timber was stacked in piles on the floor. At his workstation he would wrap and label the bundled timber which would be moved with the aid of a forklift.[8]
[8] ARD p 4.
The evidence of a co-worker, Ms Tumpa, is consistent with the applicant’s evidence as to the nature of his work duties in the packing section. It is the evidence of Ms Tumpa that they would pick up timber panels and parts which would be placed on a trolley which would then be pushed back to the packing area which was nearby. The stock would then be unloaded from the trolley onto an automatic height adjustable pallet. It is the evidence of Ms Tumpa that the timber was not “the heavy ones” and the items being collected were “not heavy stuff” however Ms Tumpa does not provide any estimates as to the weights of the items being handled.[9] It is the evidence of Mr Gama that the applicant would lift up to 15kg before it would become a two-man lift. Whilst it is the evidence of Ms Tumpa that the items were not heavy it is also the evidence of Ms Tumpa that once she became aware of the applicant’s left shoulder condition she arranged for other staff to assist the applicant with his duties as she could see that the applicant could not do anything heavy.[10] The evidence of Ms Tumpa also supports that the work duties were repetitive in nature with as many as six to seven pallets being packed per day if they were busy.[11]
[9] Reply p 92.
[10] Reply p 93.
[11] Reply p 92.
The applicant at times also worked in other areas of the factory. In some of those areas, such as the area in which doors were packed, the duties appear to have been heavier in nature.
It is the applicant’s evidence that on 26 November 2020 whilst in the course of his duties for the respondent he needed to get timber from a stack on the ground. Whilst picking up the timber which was about 2.4m long and 0.45m wide weighing approximately 10kg, he felt a sudden onset of pain and discomfort in his left shoulder. Despite the pain he continued to work and pushed the trolley to his work area which was about 10 to 15m away. It is the applicant’s evidence that he thought that he had pulled a muscle and he let Ms Haowa Tumpa, a co-worker, know that he had hurt his arm and had pain in his left shoulder whilst lifting timber and placing it on a trolley.[12]
[12] ARD pp 4-5, 7.
The applicant denies any previous issues with his left shoulder and there is no evidence to support that the applicant was suffering any left shoulder condition prior to
26 November 2020.
Mr Saul observed on behalf of the respondent that Dr Bodel records a slightly different history of injury. Dr Bodel records that on 26 November 2020 the applicant had selected a variety of pieces of timber and put them onto a trolley which he was pushing “when he developed increasing pain” in the region of his left shoulder rather than that the symptoms commenced with the lifting of a piece of timber.
I am of the view that the minor difference in history recorded by Dr Bodel is of no significance. The applicant’s first language is not English which may have posed an impediment to the obtaining of an accurate history. No interpreter appears to have been present at the time of the examination. By the time the applicant attends on Dr Bodel he has already made a statement on 5 August 2021 to investigators appointed by the respondent, a claim file had been opened on or about 12 April 2021 which records a consistent history of injury[13] and a claim form had been completed on 13 April 2021 which also recorded a history of the injury having been sustained whilst lifting.[14]
[13] ARD p 49.
[14] ARD p 485-486.
Mr Saul submitted on behalf of the respondent that the evidence of Ms Tumpa and Mr Raul Gama, the Production Supervisor and the applicants direct supervisor, support that no report of injury, no observation of injury, no discussion of any injury to the left shoulder occurred between 26 November 2020 and the close of the business over the Christmas period and that there is a dispute as to what occurred when the respondent re-opened after the Christmas break.
I do not accept the evidence of Mr Gama and Ms Tumpa for the following reasons.
Turning firstly to the evidence of Mr Gama. It is the evidence of Mr Gama that he did not become aware that the applicant was suffering from a left shoulder condition until 22 February 2021.
As previously discussed, the medical evidence supports, and the respondent does not dispute that the applicant suffers from a left shoulder condition. Whilst the respondent disputes that the applicant sustained injury to his left shoulder on 26 November 2020 as alleged there is no disputing that the applicant attended on Dr Brian Nguy on 3 January 2021 complaining of left shoulder pain. At that time Dr Nguy noted that the applicant was unable to elevate his left arm over 90 degrees. Dr Nguy believed at that time that the applicant’s condition was such that it warranted immediate referral for an ultrasound and x-ray. Dr Nguy may also have recommended physiotherapy at that time, in any event Dr Nguy referred the applicant to Mr Yong Kuen Park for physiotherapy on 6 January 2021. The applicant appears to have first attended physiotherapy on 9 January 2021 shortly before returning to work on 12 January 2021 following the Christmas break.
It is the evidence of Ms Tumpa that at the morning stretching session on 12 January 2021, at which Mr Gama was not only present but appears to have led, she noticed that the applicant was unable to lift his “right arm”. I take the reference to the right arm to be an error and that Ms Tumpa was in fact referring to the applicant’s left arm. Mr Grimes submitted on behalf of the applicant that this error raised doubts as to the accuracy of Ms Tumpa’s statement. I do not draw any such inference from this particular error. The error is a simple one and could be purely typographical in nature and at times even occurs in medical reports. It is also an error which is inconsistent with the rest of the evidence, with there being no evidence of any injury to the right shoulder.
The evidence of Ms Tumpa supports that at that time the applicant had a clear and readily observable left shoulder restriction which is consistent with the restricted range of motion which Dr Nguy recorded on examination on 3 January 2021.
It is furthermore the evidence of Ms Tumpa that she told the applicant on 12 January 2021 during the morning stretching sessions to let Mr Gama know about his condition however
Mr Gama was also present and had noticed. Ms Tumpa does not state how she knew that
Mr Gama had noticed, nor can she give evidence as to Mr Gama’s state of mind or knowledge. However, the restriction would appear to have been clearly apparent as evidenced by Ms Tumpa. It is also the evidence of Ms Tumpa that Mr Gama notified staff and that she heard Mr Gama tell the applicant during the regular morning stretching sessions not to raise his arm because of the injury. Ms Tumpa also thinks that she remembers Mr Gama checking whether the applicant could move his arm on one or two mornings.
It is also the evidence of Ms Tumpa that following the stretching session at 6.30am on
12 January 2021 they proceeded to commence their usual work duties at which time
Ms Tumpa observed that the applicant could not do anything heavy and that she personally got others to assist the applicant.
The evidence Ms Nolante Payopay, a co-worker, corroborates the evidence of Ms Tumpa. It is the evidence of Ms Payopay that Mr Gama told the applicant in the stretching sessions not to lift up or use his left arm and that Ms Tumpa instructed her to assist the applicant.[15]
[15] ARD p 22.
The evidence of Mr Gama himself is also inconsistent with him not becoming aware of the applicant’s left shoulder condition until on or about 22 February 2021.
It is the evidence of Mr Gama that in addition to the morning stretching sessions he observed the applicant working all day every day, as his work area was located outside his office and that he regularly spoke to him. However, it is also the evidence of Mr Gama that he noticed, maybe around February 2021, that the applicant was not packing as much as he had previously, yet it is not until the stretching session on 22 February 2021 that he says that he noticed any issue with the applicants left upper limb.
I accept the applicant’s evidence that in January 2021 Mr Gama did notice the Deep Heat patches which he was wearing for the following reasons.
The evidence overwhelmingly supports that the applicant had a clearly observable disability and incapacity in respect to his left shoulder following his return to work on 12 January 2021. By the time the applicant returned to work on 12 January 2021 he had attended on a doctor and had been referred for physiotherapy and had attended at least one session of physiotherapy treatment. In the circumstances there is no reason to doubt the applicant’s evidence that he was wearing Deep Heat patches. The respondent pointed to the lack of any statement evidence from the applicant’s wife. In my view there is sufficient evidence as to the wearing of the Deep Heat patches by the applicant and statement evidence from the applicant’s wife is not required.
Mr Saul submitted on behalf of the respondent that if the applicant’s evidence was accepted why did the applicant not tell Mr Gama that his condition was work related at this time. It is applicant’s evidence that he had assumed that Mr Gama knew that it was work related due to the nature of the work duties. I accept the applicant’s evidence. Mr Gama himself concedes that workers did from time to time wear heat patches to assist with various pains and that he himself had done so and that he would also advise workers to move slowly during the morning stretching sessions if he noticed restrictions.
In respect to the evidence of Mr Gama that he asked the applicant to review the job of mirror polisher in February 2022 and that the applicant told him that he could not do the job and requested that he not be asked to perform that job. It is the evidence of Mr Gama that the applicant did not say anything about any injury, just stating that he did not want to learn the job. It is the evidence of Mr Gama that he then asked the applicant about performing door and shower packing to which the applicant responded by saying that he was not as fast as anyone else. It is the evidence of Mr Gama that he thought that the applicant felt embarrassed that he wasn’t as quick and that there was no mention of any injury or a work-related incident.
It is the applicant’s evidence that the proffered job was heavy and that he told Mr Gama that he could not do the job due to his left shoulder pain.
I accept the applicant’s evidence. For the reasons previously discussed the applicant clearly had a left shoulder injury and disability by the time that he was asked to work performing these particular duties. On the evidence these duties were heavier and more difficult than the duties which the applicant performed in the packing area where Ms Tumpa had been directing other workers to assist him with those duties. The applicant’s evidence is therefore consistent with what would have been the true situation at the time, that being that due to his left shoulder injury the applicant would have great difficulty or been unable to perform the proffered duties.
It is the evidence of Mr Gama that he completed an injury report form advising that the applicant had an injury/incident at home because he completed the form on the day that he spoke to the applicant about his shoulder and it happening in the first week of January when he was on the couch. It is Mr Gama’s evidence that he does the same for all employees who have reported out of work incidents which is standard.[16] However according to Mr Gama this conversation appears to have taken place on or about 22 February 2021 not 1 March 2021 when the report was completed.
[16] Reply p 35.
For the above reasons I am of the opinion that the evidence of Ms Gama is wholly unreliable as to when he became aware of the applicant’s left shoulder condition and when the injury was reported to him.
I now turn to the evidence of Ms Tumpa.
I prefer the evidence of the applicant to that of Ms Tumpa as to Ms Tumpa being aware of the applicant’s left shoulder condition prior to the commencement of the Christmas break on 22 December 2020. I also accept the applicant’s evidence that he sustained injury to his left shoulder in the course of performing his work duties with the respondent on
26 November 2020 for the following reasons.
The applicant has an excellent work history having been employed by Toyo Tyres for over 14 years, leaving that employment due to the closure of the factory, prior to commencing employment with the respondent.
It is the evidence of Mr Gama that there were no “HR” issues with the applicant, that the applicant was a good worker, that if he was sick he would tell Mr Gama early, that he was very reliable, that he was a team player, that he was easy to like, that he got along with everyone and that if he was told that he was doing something the wrong way he would stop.[17]
[17] Reply p 29.
It is the evidence of Ms Tumpa that the applicant arrived at work early, worked without supervision, was positive, smiling, friendly and happy. It is also the evidence of Ms Tumpa that when the applicant returned to work on 12 January 2021 following the Christmas break, he was despite being injured, happy to be back at work and told Ms Tumpa “confidentially” that he could work, that he didn’t want to be at home and wanted to be at work.
The applicant continued to work on after returning to work on 12 January 2021 without it would seem taking any time off work due to his left shoulder injury.
The evidence supports that the applicant was a good employee who enjoyed being at work and was stoic in nature and did not complain.
On 3 January 2021 the applicant attended on Dr Nguy at which time he reported left shoulder pain for two months with the doctor recording “no injuries”.
It is the evidence of Mr Gama that the applicant told him that his left shoulder symptoms had commenced whilst he was on the couch at home in the first week of January 2021. The clinical record of Dr Nguy confirms that the applicant did attend on the doctor in the first week of January 2021 but is inconsistent with the applicant having developed his left shoulder symptoms in the first week of January 2021. The history which Dr Nguy records of the applicant having left shoulder pain for two months roughly aligns with the applicant’s evidence that he sustained injury to his left shoulder at work on 26 November 2020.
In my view the doctor’s history of “no injuries” is not inconsistent with the event that the applicant describes on 26 November 2020 which was relatively innocuous in nature with the applicant simply lifting a piece of timber which he would have done many times each day in the course of his work duties. The incident did not involve any unusual activities, excessive weights, trauma or impact. It also needs to be remembered that inconsistencies between a party’s evidence and medical histories in clinical notes should be treated with caution. As Basten JA in Mason v Demasi [2009] NSWCA 227 stated:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.” (at [2])
At the time that the applicant attended on Dr Nguy the applicant would appear to have had no reason to provide to the doctor an incorrect history in respect to the onset of the symptoms. In my view it is clear on the evidence that at the time he attended on Dr Nguy on 3 January 2021 the applicant had no intention of making a workers compensation claim.
It is the applicant’s evidence that at the time that he sustained injury on 26 November 2020 he believed he had simply pulled or strained a muscle and he only became aware of the extent of his injury once the results of the second ultrasound, which revealed the tear of the rotator cuff, became available. This was the ultrasound on which Dr Kang reported on
1 March 2021.
Following 3 January 2021 the applicant had continued to attend work and perform his work duties, he took little or no time off work due to his shoulder injury, he paid for the costs of his physiotherapy appointments except for one later appointment arranged by the respondent with Danny Lam. Even when he went off work on or about 22 February 2021 when the pain had become intolerable, he did not lodge a claim for workers compensation but rather used up his sick leave entitlements, on occasion he turned up to work dressed for work and wanting to work, he also asked to be provided with selected duties. It is the evidence of
Mr Gama that the applicant really wanted to work.
Significantly even when Dr Ofo Niumeitolu offered the applicant a workers compensation certificate on 1 April 2021 the applicant declined telling the doctor that he wanted a normal medical certificate. Whilst the clinical records of Dr Niumeitolu contain no history in respect to the cause of the applicant’s shoulder condition the doctor must have had reason to believe that the injury was related to the applicant’s employment to offer to provide a worker’s compensation medical certificate.
It is the applicant’s evidence that in December 2020 and January 2021 Ms Tumpa would ask other workers to help him with his work because of his shoulder injury and that one of those workers was Ms Payopay.[18] It is the evidence of Ms Tumpa that it was not until after they had returned to work on 12 January 2021 that she asked other workers to assist the applicant however it is the evidence of Ms Payopay that she was instructed by Ms Tumpa to assist the applicant “during that time Reynaldo work with me, because Haowa knows the situation of Reynaldo’s left shoulder injury too”. I place little weight on this evidence of Ms Payopay as whilst it is supportive of the evidence of Ms Tumpa and the applicant as to having been instructed by Ms Tumpa to assist the applicant the evidence is to indefinite as to the period in which this assistance was provided.
[18] ARD p 19.

Ms Payopay does however state that Mr Gama would tell the applicant during the morning warmup’s during the last quarter of 2020 not to lift up or use his left arm. The respondent objected to the evidence of Ms Payopay on the basis that it is hearsay and submitted that
Ms Payopay does not state in which warmup sessions these conversations occurred and that they could have taken place in February 2021 when everyone was aware of the applicant’s left shoulder condition. The rules of evidence do not apply to these proceedings and
Ms Payopay is providing evidence as to what she directly observed. Whilst Ms Payopay does not identify the particular sessions in which Mr Gama made these comments,
Ms Payopay does state that they were made in the last quarter of 2020. In this respect the evidence of Ms Payopay is supportive of the applicant.
The evidence supports that the applicant is a stoic individual who does not appear to have complained about his shoulder condition. Rather he appears to have, when asked, tended to indicate that he was able to perform his duties.
Mr Saul submitted on behalf of the respondent that the clinical records do not assist the applicant.
Mr Saul observed that the applicant attended on Dr Niumeitolu of the United Care Medical Centre on 26 November 2020 with the attendance taking place on the afternoon after the injury was allegedly sustained. Mr Saul observed that the clinical note of the attendance contains no mention of the applicant’s left shoulder. Mr Saul submitted on behalf of the respondent that if the applicant was suffering from left shoulder pain it is improbable that he would not have mentioned it to the doctor.
Mr Saul observed that the applicant next attended on Dr Niumeitolu for unrelated issues on
7 December 2020 in respect to his back and right knee pain for which he was referred for physiotherapy. The clinical attendance records no mention of the left shoulder. Mr Saul submitted that it was incredulous that the applicant would have attended on a doctor for musculoskeletal reasons and not mentioned his left shoulder given that was the primary problem with which he was dealing.
Mr Saul also noted that the applicant attended on Dr Nguy on 14 December 2020 and
21 December 2020 without there being any mention in the clinical notes of the attendance of any mention of the left shoulder.
I do not accept the respondent’s submission for the following reasons. As previously observed the applicant appears to be a stoic individual who did not tend to complain. It is the applicant’s evidence that he initially believed that he had only pulled a muscle or something similar and that the pain would eventually go away. In the circumstances I am not of the view that it was improbable that the applicant would not have mentioned the injury.
Mr Saul submitted on behalf of the respondent that Ms Tumpa and Mr Gama had no motivation to lie. That it is Mr Gama’s evidence that everybody was trained to report injuries no matter how minor and that they are encouraged to do so. That the respondent organised stretching sessions and held meetings in which safety was discussed. In the circumstances, Mr Saul submitted that it would be rather peculiar for Mr Gama to obfuscate or attempt to deny matters that are well within his scope of employment. In Mr Saul’s submission there was no motivative for Mr Gama to tell untruths.
What the motivations of Mr Gama and Ms Tumpa may have been are not discernible with any certainty from the evidence. The respondent clearly wished to have no workplace injuries which is a commendable goal. However, we do not know what pressures, real or imagined, Mr Gama and Ms Tumpa may have felt to achieve that goal. There is evidence that there were incentives such as meals provided by the respondent for having no reported injuries. It is also clear that Mr Gama’s evidence as to when he first became aware of the applicant’s left shoulder condition is wholly unreliable. Mr Gama was clearly impressed with the abilities of Ms Tumpa for which Ms Tumpa received a promotion and one can only speculate as to whether Ms Tumpa’s loyalty to Mr Gama has affected her evidence.
Mr Grimes submitted on behalf of the applicant that the language barrier between the applicant and Ms Tumpa may have impacted on Ms Tumpa’s understanding that the applicant had reported an injury following the incident on 26 November 2020.
There is also potential, given the nature of the incident, simply picking up a piece of timber as they would do many times per day, combined with the fact that the applicant believed that he had simply pulled a muscle and that the pain would go away as well as the stoic nature of the applicant that the applicant’s reporting of the injury was not particularly memorable and that Ms Tumpa gave it little attention and has forgotten the applicant telling her of the injury.
Mr Grimes submitted on behalf of the applicant that there is no other identified cause of injury. This submission is not entirely accurate in that Dr Breit, who diagnosed a frozen shoulder, appears to suggest potential other causes of injury whilst observing that the cause of frozen shoulder is largely not understood. I however do not accept the opinion of Dr Breit in respect to causation for reasons which I will give below. In any event the submission is of little assistance for as Mr Saul rightly observed the respondent is not required to provide an alternate mechanism or explanation of injury.
I find the applicant to be a witness of truth and accept the applicant’s evidence that he sustained injury to his left shoulder in the course of his employment with the respondent on 26 November 2020 as alleged and that he reported the incident to Ms Tumpa on
26 November 2020. As previously noted, the applicant’s evidence that he sustained injury on 26 November 2020 is consistent with his attendance on Dr Nguy on 3 January 2021 and the history taken by Dr Nguy of the applicant having a left shoulder for two months. The applicant denies that he suffered from any left shoulder complaints prior to the injury on
26 November 2020 and there is no evidence of any such complaints or injury prior to
26 November 2020.
I find that the applicant sustained injury to his left shoulder in the course of employment on 26 November 2020 when he picked up a piece of timber in the course of performing his work duties.
I also find that applicant’s employment was a substantial contributing factor to the injury sustained on 26 November 2020.

I accept the diagnosis of Dr Bodel of a rotator cuff tear in the region of the left shoulder caused by the injury at work and that the applicant’s employment is the substantial contributing factor to the left shoulder injury. The existence of the tear of the rotator cuff is confirmed by both ultrasound and MRI scans of the left shoulder and was subsequently the subject of surgical repair at the hands of Dr Sher. The fact that the tear appears to have occurred at the time of the subject incident on 26 November 2020 is supported by the evidence that the applicant’s left shoulder was asymptomatic prior to the incident on
26 November 2020 and has remained symptomatic since then.
I do not accept the opinion of Dr Breit that the applicant suffers only from a frozen left shoulder condition, with the condition being unrelated to the applicant’s employment. Whilst Dr Breit noted that the ultrasound report in respect to the left shoulder dated 1 March 2021 reported an intrasubstance tear of supraspinatus with tendinosis and bursitis he only diagnosed frozen left shoulder, seemingly completely ignoring the rotator cuff tear without providing any explanation. Dr Breit did however observe that frozen shoulder can be related to underlying pathology, and when that pathology is work related then it becomes a work injury. Whilst the applicant may also suffer from frozen shoulder Dr Breit did not provide an opinion as to whether the rotator cuff tear had contributed to the development of the frozen shoulder condition which he had diagnosed.

Notice

Mr Saul submitted on behalf of the respondent that the applicant did not give notice of the injury in accordance with s 254 of the 1998 Act and therefore is disentitled from receiving compensation.
I have previously accepted the evidence of the applicant that he gave notice of the injury to Ms Tumpa on 26 November 2020. Whilst Ms Tumpa was not the applicant’s direct supervisor it is the evidence of Mr Gama that he teamed Ms Tumpa with the applicant to organise him. In my view Ms Tumpa supervised the applicant for the purposes of s 255(4)(b) of the 1998 Act and therefore the applicant did give notice of the injury in accordance with s 254 of the 1998 Act. If I am incorrect in this, I am of the view that s 254 does not in any event disentitle the applicant due to the application of s 254(2) combined with s 254(3)(a) as the respondent has not been prejudiced in the proceedings by the failure to give notice. Whilst Mr Saul submitted on behalf of the respondent that there is always prejudice, he did not identify the nature of the prejudice relied upon. I do not accept that the respondent has suffered any prejudice. In particular there is no evidence that the respondent has been unable to obtain any evidence on which it may have wished to rely as a result of any delay in the giving of notice.
I find that the applicant gave notice of his injury on 26 November 2020 in accordance with
s 254 of the 1998 Act.

Incapacity

The applicant claims weekly benefits compensation from 21 February 2021 however the applicant last worked for the respondent on 22 February 2021 before ceasing duties.
It is the applicant’s evidence that he kept working but the pain got worse and on
21 February 2021 the pain was unbearable. The applicant went to Mr Gama and told him that he could not come in the following day because of his shoulder and that he told
Mr Gama that he would go to the doctor the following day. It is the applicant’s evidence that he attended on Dr Niumeitolu the following day and was referred for an ultrasound and placed on sick leave following the doctor’s appointment. It is the evidence of Mr Gama that on 22 February 2021 the applicant told him that he could see his doctor the following day.
The evidence of the applicant and Mr Gama is consistent with the applicant attending on his doctor on the day following his meeting with Mr Gama. The clinical records of Dr Niumeitolu record that the attendance occurred on 23 February 2021.
Mr Grimes submitted on behalf of the applicant that the applicant’s left shoulder pathology was significant enough to justify the applicant going off work. Mr Grimes submitted that the applicant was totally incapacitated for work during the period for which weekly benefits compensation is claimed. In Mr Grimes submission the applicant’s total incapacity is supported by the various medical certificates.
I accept that the various medical certificates support that the applicant was totally incapacitated. Apart from some minor gaps in the certificates and a period from
17 March 2021 to 31 March 2021 when the applicant was certified fit for restricted duties the applicant was certified totally unfit for work from 23 February 2021 to 12 May 2023. There are no certificates covering the period between 13 May 2023 and 20 August 2023.
Dr Niumeitolu did certify the applicant fit for restricted duties from 17 March 2021 to
31 March 2021. At the time the applicant fervently wished to return to work with the respondent and the respondent appears to have been considering the provision of suitable however no suitable duties were identified and provided to him.
That the applicant was totally incapacity is supported by Dr Sher’s (treating surgeon) report to Dr Niumeitolu dated 19 November 2021. Dr Sher in his report records that the applicant had a one year history of increasing problems with his shoulder, which is consistent with the applicant’s evidence that his conditioned worsened after he ceased performing his work duties.
At the time of reporting Dr Sher noted that the applicant was at the point where his wife was helping him to dress and undress and that he had “very, very severe pain” in the anterolateral aspect of his upper arm which was worse with elevation and internal rotation and that the pain regularly woke him, and he had been too sore to work since February 2021. At that time Dr Sher recommend surgical repair of the rotator cuff tear however the surgery was not performed until 21 April 2022.
That the applicant was totally incapacitated at this time is also supported by Dr Breit who following his initial examination of the applicant on 4 November 2021 concluded that the applicant was not fit due to his shoulder injury for any work for which he was suited by way of his past training and experience.
Dr Bodel, who examined the applicant on 11 February 2022 was also of the opinion that the applicant was not fit for his pre-injury hours or duties, his pre-injury warehousing work being incompatible with his injuries.
Whilst Dr Bodel was of the opinion that the applicant may have been able to tolerate lighter waist level work, avoiding strenuous and repetitive tasks with the arms or repetitive overhead lifting he qualified his opinion by observing that it would be preferable for the applicant to be referred for specialist review with all options for treatment being explored prior to considering any significant return to work. As previously noted, Dr Sher had recommended a surgical repair of the rotator cuff in November 2021 and that surgery had not been performed at the time of Dr Bodel’s initial examination and report.
In providing his opinion Dr Bodel did however also observe that the applicant at the time was 62 years of age and that it may be difficult to return him to work with his skillset. Dr Bodel was of the opinion that for all intents and purposes the applicant could be considered to be totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness and training.
The rotator cuff repair surgery appears to have resulted in an improvement in the symptoms however that improvement was not sufficient at least as at 5 April 2023 for the applicant to return to his pre-injury duties. On 5 April 2023 Dr William Ridley, for Dr Sher, reported to
Dr Niumeitolu noting that it was 12 months since the performance of the left shoulder rotator cuff repair. Dr Ridley reported that the applicant had continued to improve and that the applicant’s only complaint was that he had been unable to return to work at which he used to lift very heavy timber.
Dr Bodel in his further report dated 15 September 2022 noted that the applicant had left shoulder surgery in April 2022 and that there had been some improvement in the applicant’s symptoms with surgery however he had not returned to work.
Dr Bodel recorded that the applicant complained of pain and stiffness over the top of his left shoulder at the base of his neck and in the front of the left shoulder over the rotator cuff. Any attempt to push, pull, lift or use the left arm overhead aggravated the pain. The pain radiated down the left arm to about the level of the elbow. Head down posture or use of the left arm overhead could aggravate the pain. The applicant would wake from sleep if he rolled onto his left side. Dr Bodel did anticipate further improvement.
Dr Bodel was of the opinion that the applicant would not be able to return to his pre-injury work in the foreseeable future. Dr Bodel anticipated that at 12 to 18 months (presumably post rotator cuff repair surgery), the applicant may be able to contemplate a graded return to warehousing work, however he would always need to work with a lifting limit of no more than about 10-12kg to waist level only. Dr Bodel observed that it may be prudent to attempt to retrain the applicant into alternative work where he can avoid strenuous and repetitive tasks with the left upper limb in order to minimise his symptoms and optimise his chances of remaining in the workforce.
Dr Bodel did not re-examine the applicant after September 2022 however Dr Breit did re-examined the applicant on 18 May 2023 at which time the doctor recorded that the applicant had not returned to work because of persistent shoulder pain. At that time Dr Breit was of the opinion that the applicant was not fit for his pre-injury duties and pre-injury hours because of his restricted shoulder movement and neck symptoms.
Dr Breit was however of the opinion that the applicant was fit to undertake normal hours with appropriate restrictions. He could not work above chest height or use either arm in a forceful or repetitive manner and there should be a 15kg lifting limit. Dr Breit suggested that an earning capacity assessment be performed to determine suitable employment options. No such earning capacity assessment is in evidence and as far as I am aware has not been undertaken.
Strangely, given his previous opinion of November 2021 that the applicant was unfit for work, Dr Breit was of the opinion that the applicant had been fit for restricted duties since the time of his previous examination. Such an opinion is entirely inconsistent with the doctor’s opinion at the time of the previous examination when he concluded that the applicant was totally unfit for any work for which he was suited by his past training and experience due to his shoulder injury.
Whilst Dr Breit’s examination of the applicant in May 2023 does demonstrate an improvement in the range of motion of the shoulder over his previous examination, the shoulder continued to be painful with Dr Breit noting on examination that the shoulder was generally irritable, and the applicant continued to complain of sleep disturbance. Dr Breit also noted on examination in May 2023 that there was some wasting of the left shoulder.
Dr Niumeitolu on 21 August 2023 responded to a questionnaire in which the doctor provided the opinion that the applicant was not fit for his pre-injury duties observing that the applicant required intensive rehabilitation and physiotherapy to improve his left shoulder function.
I am of the opinion and find that the applicant was totally incapacitated for work from
23 February 2021 for a period of 130 weeks as a result of the injury sustained to his left shoulder in the course of his employment with the respondent on 26 November 2020.
The applicant is a man of stoic disposition who attempted to soldier on performing his work duties for as long as possible only ceasing work on 22 February 2021 when the pain became unbearable. The applicant was clearly struggling with the performance of his work duties prior to ceasing work with Ms Tumpa instructing other workers to assist him.
Even after ceasing work the applicant fervently wished to return to work and obtained a certificate for suitable duties however the respondent appears to have been unable to identify any duties which the applicant could perform, and no duties were provided. After his ceasing duties the applicant was diagnosed with a rotator cuff tear for which surgery was ultimately recommended however which was not performed until 21 April 2022. Whilst there does appear to have been improvement, in particular in respect to the range of motion, following the surgery full resolution of the applicant’s shoulder symptoms did not occur and the shoulder remained painful and irritable.
The applicant remained motivated to return to employment with Dr Ridley reporting on
5 April 2023 that the applicant’s only complaint was that he had been unable to return to work. Whilst Dr Breit was of the opinion in May 2023 that the applicant could potentially perform suitable duties, I do not accept the doctor’s opinion that the applicant had been fit for restricted duties since his previous examination. The opinion is inconsistent with the opinion that he provided at the time of his previous examination that the applicant was totally unfit. Whilst Dr Breit was of the opinion in May 2023 that the applicant was potentially fit for suitable duties no such duties have been identified and the applicant’s shoulder clearly at that time remained significantly symptomatic. The applicant is a man in his sixties with limited English skills and who has been performing labouring duties for at least the last 15 years prior to injury and who according to Mr Gama was poor at organising himself. The applicant would therefore appear to have few transferrable skills.

[2024] NSWPIC 90

27 February 2024