Cespedes v State of NSW (Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cespedes v State of NSW (Sydney Local Health District) [2025] NSWPIC 417
APPLICANT:	Maria Cespedes
RESPONDENT:	State of NSW (Sydney Local Health District)
MEMBER:	Fiona Seaton
DATE OF DECISION:	19 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment; whether the applicant sustained consequential left shoulder and/or cervical spine injuries as a result of accepted right shoulder injury; Held – the applicant sustained a consequential left shoulder injury; award for respondent for claimed consequential cervical spine injury; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from right shoulder, left shoulder, and scarring.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant sustained a consequential left shoulder injury as a result of the accepted right shoulder injury on 19 January 2017. 2. Award for the respondent with respect to the claim made for a consequential cervical spine injury. 3. The matter is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 19 January 2017 (b) Body systems/parts: right upper extremity (shoulder), left upper extremity (shoulder), and scarring (TEMSKI) (c) Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) application to resolve a dispute and attached documents; (b) reply and attached documents, and (c) respondent’s Application to Lodge Additional Documents dated 10 July 2025 and attached document. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Maria Cespedes, was employed by the respondent as a ward assistant at Royal Prince Alfred Hospital for about 35 years commencing in 1986.
On 19 January 2017, the applicant injured her right shoulder while lifting down a five litre chemical bottle. Following right shoulder revision surgery on 30 July 2021 she was cleared for suitable duties however none were available, and she has not worked since.
The applicant alleges she sustained consequential left shoulder and cervical spine injuries as a result of her accepted right shoulder injury. On 2 May 2023, she claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for 18% whole person impairment (WPI) as a result of injury to the left and right upper extremities, cervical spine and scarring (TEMSKI).
A notice issued on 8 September 2023 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputes the applicant is entitled to lump sum compensation for the consequential left shoulder and cervical spine conditions.
In the Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 27 May 2025 the applicant claims lump sum compensation for 18% WPI of the left and right upper extremities, the cervical spine and scarring (TEMSKI).
The dispute was listed for conciliation conference and arbitration hearing on 17 July 2025.

ISSUES FOR DETERMINATION

The parties agree the issue that remains in dispute is whether the applicant sustained consequential left shoulder and/or cervical spine injuries as a result of the accepted right shoulder injury on 19 January 2017.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 July 2025 in Sydney. The applicant attended with her son Michael. Mr Rohan de Meyrick appeared for the applicant instructed by Ms Genesis Asunscion, legal representative. Mr Jayden Krieg appeared for the respondent instructed by Ms Erika D’Souza, legal representative. Mr Jorge Cziment, interpreter, was present, as was Mr Cumerlato for the insurer.
During conciliation the Respondent’s Application to Lodge Additional Documents dated
10 July 2025 was admitted.
I am satisfied 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 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)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Lodge Additional Documents dated 10 July 2025 and attached report (ALAD).

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant relies on her statement signed on 3 December 2024.
Her role as a ward assistant was a fairly physically demanding job. She describes her right shoulder injury on 19 January 2017, her attempt to keep working, her first surgery on
15 March 2019, the re-tearing her shoulder during physiotherapy and revision surgery on
30 July 2021.
There were no light duties available when she was certified as fit to return to work in about January 2022. She has not worked since and has now reached retirement age.
The applicant describes beginning to experience pain in her left shoulder due to overcompensation and over reliance to the point it was very tender to touch. The pain and tension in her shoulders caused an imbalance in her overall body and she experienced pain in her hips, right elbow and wrists and her right knee.
She also experienced a secondary psychological injury as a result of bullying and harassment at the hands of her colleagues. She did not report this or make a workers compensation claim, she sought counselling through the Employee Assistance Program on two or three occasions.
The applicant describes her current pain and symptoms in her right shoulder, right arm, the deterioration of her sleep quality, and the impact of the injuries on her life.

Worker’s injury claim form

On 15 February 2018, the applicant lodged an injury claim form for right shoulder, right elbow, forearm, wrist and finger injuries on 19 January 2017. There is a Notification of injury/illness of the same date.

Permanent Impairment claim form

The permanent impairment claim form dated 27 April 2023 claims lump sum compensation for 18% WPI of the right and left shoulders as a result of the injury on 19 January 2017, relying on Dr Bodel’s report.

Dr James Bodel, independent orthopaedic surgeon

In his report of 3 November 2022, Dr Bodel’s summary of injuries is to the right shoulder, consequential left shoulder and scarring.
Dr Bodel notes the applicant had “begun to develop some left arm pain and this came on gradually, but no investigations or treatment have been done for that at this time.”[1]
[1] ARD page 35.
He notes current complaints in addition to the right shoulder and arm of pain and stiffness in the neck and the development of some left shoulder girdle pain which is under investigation.
The diagnoses are of rotator cuff pathology principally in the right shoulder region, and a secondary development of bursitis and tendinitis on the left-hand side as well as carpal tunnel on the right-hand side. On testing the left shoulder is mildly impaired.
Dr Bodel’s assessment of permanent impairment is 5% WPI of the cervical spine and 2% for activities of daily living, 8% of the right upper extremity and 2% of the left upper extremity with 1% for scarring, combining to 18% WPI.
In a supplementary report dated 16 February 2025, Dr Bodel comments on Dr Machart’s opinion in his report of 28 August 2023. Although there is no evidence of ‘injury’ to the left shoulder, Dr Machart did record a slight restriction of shoulder movement on the left-hand side attracting a 2% upper extremity impairment which Dr Machart indicated represented a pre-existing abnormality or condition.
Dr Bodel was satisfied however that overuse of the left shoulder and left arm while recovering from the right shoulder could cause aggravation, acceleration, exacerbation and deterioration of that degenerative process which exists in that shoulder.
The left shoulder has become symptomatic by way of favouring that side and then aggravating, accelerating, exacerbating and deteriorating the underlying rotator cuff pathology in that shoulder.
Similarly, Dr Bodel found evidence clinically of asymmetry of neck movement by way of an aggravation, acceleration, exacerbation and deterioration of that disease process in the cervical spine. The cervical spine is also a consequential injury.
Dr Bodel found no clinical indication that the applicant was exaggerating or that there was any inconsistency in her clinical presentation, disagreeing with Dr Machart’s interpretation. Dr Bodel says the applicant is anxious in her manner because of psychological issues but does not appear to him to be exaggerating or feigning illness or disability in this circumstance.
Dr Bodel saw no reason to alter his assessment.

Dr Jeffrey Petchell, treating orthopaedic surgeon

On 29 October 2024, Dr Petchell advises the applicant’s solicitors that he does not provide medico legal reports.
Dr Petchell’s Operation Report for right shoulder arthroscopic acromioplasty, cuff repair, biceps tendinosis is dated 15 March 2019.
The Operation Report of 30 July 2021 for right shoulder arthroscopic synovial biopsy, removal of suture and screw, release, revision acromioplasty, distal clavicle excision and cuff repair is also with the clinical records. The applicant was in a sling following surgery.
Dr Petchell’s reports from 26 March 2019 to 31 January 2022 are with the ARD. Dr Petchell describes the treatment following right shoulder surgery as including physiotherapy, use of a TENs machine, difficulty taking analgesics and Mobic, splinting of the right little finger, ongoing pain, the failure of her subscapularis repair, and the use of a sling, pulley and stick following the right shoulder revision cuff repair.
Dr Petchell’s clinical records are mainly concerned with treatment of the applicant’s right shoulder injury. The referral from Dr Sivaseelan on 3 October 2017 is for opinion and management of the applicant’s chronic right arm pain for 10 months. There are further referrals from Dr Bui on 24 November 2018 and 19 November 2020 for opinion and management of multiple injuries to the applicant’s right shoulder.
The records include Dr Petchell’s certificates of capacity between 2 February 2018 and
23 January 2023, each with the diagnosis of right rotator cuff tear. There is a certificate of capacity from Dr Danish Khan of 18 January 2019 with diagnoses of right rotator cuff tear and other right shoulder injuries.
On 22 January 2018, Dr Petchell relevantly reports to Dr Sivaseelan that the applicant has good range of motion in the cervical spine.
On 26 April 2022, Dr Petchell reports to Dr Bui the applicant has noticed an increase in left shoulder pain and will continue with home exercises for both shoulders.
Dr Petchell notes in a report of 7 November 2023, the applicant had some pain in the left shoulder after a work assessment and she had some pain in the left shoulder prior to this which she attributes to overuse.
Dr Petchell notes in his report of 19 February 2024 the applicant continues to experience intermittent pain and clicking in her right shoulder.

Mr Derryn Chiu, treating physiotherapist

Mr Chiu’s clinical records describe treatment provided between 19 January 2019 and
25 February 2022.
Mr Chiu reports to Dr Petchell on 21 January 2019 on treatment of the applicant’s acute exacerbation of a chronic right shoulder injury with her work aggravating her symptoms. He planned to see her twice a week.
Mr Chiu relevantly notes on 12 November 2019 the applicant has been favouring with her left arm at work where possible.
He notes on 27 April 2020 the applicant sometimes must reach to the back of a shelf to reach for gowns with her left arm and she does not want to overcompensate with her left shoulder.
On 3 February 2020 Mr Chiu reports to Dr Petchell the applicant is managing her current work duties well with pain towards the end of shifts and the end of the day and swelling down her right arm. He requested a further six physiotherapy sessions to continue working on strength and muscular endurance with the hope of upgrading her work capacity. He notes numbness in the applicant’s right hand and use of a sling following the revision surgery.

Other medical reports

Dr George Nossar, staff specialist, occupational medicine at Royal Prince Alfred Hospital, reports on 27 February 2017 noting intermittent neck pain in the three weeks before the presentation, prior left shoulder pain, pain on full lateral flexion bilaterally of the cervical spine, and comments on investigations including the ultrasound of the right shoulder on
24 February 2017.
On 23 February 2018 Dr Nossar provides a report to the respondent’s recovery at work coordinator on the occupational factors potentially related to carpal tunnel syndrome in hospital ward assistant.
On the same date Dr Nossar provides his opinion to the respondent’s insurer that he does not believe the applicant has a work related injury as her injuries are unlikely to be caused by her duties, although he notes it is well recognised that repetitive activities are known to be associated with tenosynovitis at various body sites including the wrists.
The MRI report on the right wrist of 26 September 2017 concludes there is possibly mild thickening and intermediate signal intensity of the extensor carpi ulnaris tendon at the level of the ulnar styloid proves, suggestive of mild tendinosis.
The MRI report on the right shoulder printed on 26 September 2017 concludes there is a high grade articular sided tear of the supraspinatus tendon and linear interstitial tear involving the infraspinatus tendon.
The MRI report of the right elbow of 18 July 2017 concludes there is minor scarring of the common extensor tendon origin.
The right shoulder MRI report of 12 September 2019 concludes there appears to be an articular side partial thickness tear.

Respondent’s evidence
Dr Frank Machart, independent orthopaedic surgeon

The respondent relies on three reports provided by Dr Machart.
On 27 March 2018 Dr Machart diagnoses age-related rotator cuff disruption in the right shoulder with no specific injury causing the disruption, and non-specific pain in her whole right arm, elbow and wrist. It is feasible she sustained an aggravation of degenerative changes within the right shoulder rotator cuff.
On 11 June 2021 Dr Machart reports following the right shoulder revision surgery that no benefit was experienced and pain persists. Dr Machart finds the left shoulder and neck were asymptomatic and there was no injury to these regions. Movements in the left shoulder were limited and were not painful.
No cervical or left shoulder symptoms were reported at that day’s assessment. The applicant was not working and not exerting herself all that much and it would be difficult to diagnose overuse in the left arm.
Dr Machart says “[i]t should be borne in mind that the concept of overuse is not part of evidence-based medication. Reasons for departing from evidence-based medication in this situation are not apparent.”[2]
[2] Reply page 11.
Dr Machart records a strong element of pain behaviour which is complicating the physical issues, noting the injury occurred more than six years ago.
There was no pain or tenderness in the left shoulder or cervical spine. There was full movement of the cervical spine and no radicular symptoms or radiculopathy. The left shoulder range of movement was slightly diminished, on account of age factors, and not limited by pain or injury. There is no diagnosable condition in the left shoulder or cervical spine.
Any symptoms in the left shoulder and cervical spine as may be suggested by the occupational therapist are not part of evidence-based medicine in Dr Machart’s view, and do not relate to the injury pathology.
Dr Machart assesses 5% WPI of the right shoulder.
Commenting on Dr Bodel’s report of 3 November 2022, Dr Machart says the assessment made of WPI was not in line with the doctor’s narrative of injury. It is not clear why he included the cervical spine. There was no link between the history taken of the injury and the cervical spine and left shoulder WPI, when or how symptoms developed, or what the applicant’s account of the symptoms may or may not be, so that the link did not follow the narrative.
On 28 August 2023, Dr Machart records a current symptom of pain from the base of the neck through the trapezius muscle on top of the shoulder and down towards the elbow. The doctor diagnoses injury to the rotator cuff and biceps complex consistent with the incident on
19 January 2017 with an element of pain behaviour.
On 8 July 2025 Dr Machart in a supplementary report comments on Dr Bodel’s report of
16 February 2025. Dr Machart found Dr Bodel’s conclusions regarding the applicant’s left shoulder and neck to be a hypothetical without evidence of mechanism of injury, discussion of the mechanics of aggravation, particularly of the cervical spine, and comparison to evidence-based medicine.
Dr Machart comments;
“In absence the patient describing specific nature of overuse, documentation from contemporaneous evidence, mechanism of the alleged additional injury, and no reference to evidence-based medicine, or what is seen in regular practice, then this remains a hypothetical.”[3]
[3] ALAD page 3.
The mild reduction of movement is not uncommon, particularly at the applicant’s age, and may or may not represent degenerative changes. Dr Machart did not see contemporaneous evidence of injury, overuse, or mechanism of injury that could be interpreted as consequential to the right shoulder injury. There would also have to be documented objective evidence of activities beyond what the shoulder is expected to do in Dr Machart’s opinion.
Dr Machart did not see evidence of underlying cervical spine disc disease and says that shoulder pathology does not cause pathology in the cervical spine by direct mechanism of injury or aggravation. The mechanism of injury was not outlined and this also remains a hypothetical.
The conclusion Dr Machart reaches is that there is a constellation of symptoms, self-reported, through mechanism of injury which is not consistent with anything other than right shoulder pathology and he prefers to rely on medical evidence, which is evidence-based medicine and documentation.

Dr Andrew Keller, injury management consultant

On 18 April 2021 Dr Keller relevantly reports the applicant demonstrates a full symmetrical range of motion in the cervical spine and a full range of motion in the left shoulder.

Ms Callie Firth, Active Occupational Health Functional Capacity Evaluation Report

Ms Callie Firth, rehabilitation consultant, on 30 June 2022 reports on the applicant’s current capacity for work. Her current certificate is able to be upgraded only slightly on her demonstrated capacity. She would be prevented from working additional hours.
Although the applicant appears motivated to return to her pre-injury workplace this is no longer an option and this may impact on her motivation to seek and secure new employment.
Reported tolerances include under the heading ‘Lifting’ that the applicant reports she is limited to lifting with her right arm and has begun to experience discomfort through increased use of her left hand/arm and is therefore limited in the use of her left arm. She describes experiencing sensations of fatigue in her left shoulder and upper arm which she attributes to increased use to compensation for the lack of use in the right arm.

On a pain diagram the applicant shades her left upper arm and elbow as well as her right shoulder and arm. Her left shoulder and wrist became sore on carrying with the left hand.

Mr Gaetano Milazzo, consultant and forensic physiotherapist

On 28 July 2020 Mr Milazzo provides a report on what treatment is reasonably necessary in the context of excessive physiotherapy sessions having been provided.
Mr Milazzo advised Mr Chiu he agreed to support the completion of the current approved sessions and the approval of limited exercise physiology sessions over eight weeks at the frequency of once every two weeks.

Certificates of capacity

Dr Bui’s certificates of capacity regarding the right shoulder date from 31 January 2022 to
21 November 2024.

Dr Jeffrey Petchell, treating orthopaedic surgeon

Dr Petchell’s reports from 26 April 2022 to 19 February 2024 referred to above are also with the reply.

Applicant’s submissions

The applicant’s submissions were recorded and form part of the Commission’s record. These are also set out below.
The applicant worked as a ward assistant for the respondent for upwards of 35 years and she seemed to symptom free until the incident on 19 January 2017. She injured her right shoulder and had problems thereafter.
She mentions in her statement how the condition progressed over time and worsened culminating in her first right shoulder surgery on 15 March 2019, following which she had extensive rehab and physiotherapy and she was in a sling for a while. She required a second round of surgery on 30 July 2021.
Much to her disappointment the employer could not find her a position when she was cleared for light duties in January 2022. She even went to her union to complain and she tried to get back to work.
This is significant as Dr Machart on a number of occasions refers to ‘pain behaviour’ and to the extent it is used in a pejorative sense the counterpoint is someone who fought very hard to get her job back.
The applicant describes overcompensating and over reliance following the development and progression of her right shoulder symptoms, which she describes as throwing her whole body out and her left shoulder and other body parts began to hurt.
Dr Bodel mentions in his first report the history of beginning to develop left arm pain which came on gradually and he talked about pain and stiffness in the neck and the development of left shoulder girdle symptoms.
When he came to conduct his formal examination Dr Bodel set out a chart with range of movement.
Dr Bodel says the applicant complains of tenderness in the trapezius muscles at the base of the neck, on the right side there is guarding and she has reduced range of neck flexion, extension and rotation in all directions, most restricted on the right.
There is restricted range of movement in both shoulders and Dr Bodel records the range of movement in each shoulder and includes a third column for normal range of movement in his chart. The right is worse than the left but both are less than the baseline normal.
Dr Petchell’s report sets out that the first surgery for multiple pathologies was quite serious.
Dr Bodel makes a diagnosis including mild impairment of the left shoulder on testing and assesses in relation to the cervical spine DRE II based on asymmetry of movement and reductions in range.
Dr Machart in his first report of 27 March 2018, before the first surgery and before the applicant was complaining of a consequential injury to the left shoulder and neck, tried to write the whole thing off as age-related degenerative changes, and he mentions non-organic factors.
More relevant is Dr Machart’s report of 11 June 2021 in which he mentions pain radiating from the shoulder, the elbow and up to the neck, and he also says there is pain behaviour, which is understood to mean there are symptoms that cannot be explained. Dr Bodel however provides a rational explanation as to why there are symptoms over age-related symptoms.
Dr Machart again mentions pain radiating into the right side of the neck but then under the heading ‘Current Symptoms’ Dr Machart says the left shoulder and neck were asymptomatic, which is internally inconsistent.
Dr Machart then carries out an examination of the applicant and records range of movement in the right and left shoulders and a third column of normal range of movement is absent. The applicant submits that Dr Machart has taken the reduced left shoulder and used that as the norm and as a baseline that is just pre-existing and nothing to do with the injury. This is the difference between the two medico legal opinions.
Dr Machart does then say movements in the left shoulder were limited but not painful. This belies his later statement that there are no symptoms in the left shoulder or cervical spine reported on the day of this assessment. He mentions extensive pain behaviour a number of times.
Dr Machart in commenting on Dr Bodel’s report of 3 November 2022 says the assessment of the left shoulder was not part of the narrative of injury in the history he obtained or documentation from doctors however this is just incorrect. Dr Bodel did in fact take a history of left shoulder symptoms and of the neck and he found restrictions on examination.
The applicant’s respectful submission is that Dr Machart has got the wrong end of the stick in terms of both his assessment of injury and also in his comments on Dr Bodel’s report.
On 16 February 2025 Dr Bodel comments on Dr Machart’s report. Although there is no evidence of ‘injury’ to the neck and left shoulder Dr Machart did record a slight restriction of shoulder movement on the left-hand side which attracted 2% WPI.
Dr Machart indicated he had used the 2% Upper Extremity Impairment to represent a pre-existing abnormality or condition and indicates that reflects an appropriate deduction for pre-existing pathology on the right hand side, bringing the level of Upper Extremity Impairment down. Dr Machart has used the left shoulder as a baseline and not as a consequential injury and it has affected his assessment.
Dr Bodel then defends his own opinions and disagrees with Dr Machart that there is pre-existing abnormality for which he has made a deduction. Dr Bodel is satisfied that overuse of the left shoulder and left arm while recovering from the right shoulder could cause aggravation, acceleration, exacerbation and deterioration of the degenerative process in that shoulder. Similarly there is evidence of asymmetry of neck movement and there has been an aggravation, acceleration, exacerbation and deterioration of that disease process in the cervical spine.
Dr Machart is then asked to comment on this controversy in his report of 8 July 2025. There is again internal inconsistency when he asserts that at the time of his examination of the applicant in August 2023 the neck and left shoulder were asymptomatic. They were not and that is discernible from his own report. Dr Machart then comments specifically on Dr Bodel’s opinion and says that his conclusions are hypothetical without mechanism of injury, discussion of the mechanics of aggravation, particularly the cervical spine, and comparison to evidence-based medicine.
The applicant submits Dr Bodel’s opinion is not a hypothetical, it is a hypothesis and an opinion as to causation. The applicant’s statement says she favoured and overused her left side leading to it becoming symptomatic and that accords with the evidence generally regarding how serious the right shoulder injury was and the fact she was in a sling for a time.
Presuming by evidence-based medicine Dr Machart is referring to there being no MRI scan or some other objective proof, that does not of itself defeat the claim. There is measurable pathology that has been determined in clinical examination.
Dr Bodel has tied his opinion in with the pathology. Dr Machart says he has no confirming medical evidence the applicant would have suffered the left shoulder and cervical spine conditions due to her age. Both doctors found evidence of pain and restriction in the neck and left shoulder and interpret them differently.
In determining a consequential injury you would apply the often quoted provisions of Kooragang Cement Pty Limited v Bates^[4]and a commonsense evaluation of a causal chain. The mere passage of time between a work incident and a subsequent injury or incapacity does not determine entitlement to compensation. This is discussed more recently for example in Dent v ColesGroup Supply Chain Pty Ltd[5]. It is up to the Medical Assessor to decide whether the injury is an aggravation, transient or permanent, and whether a deduction is required to be made by reason of any pre-existing pathology or prior or supervening event.
[4] (1994) 35 NSWLR 452 (Kooragang).
[5] [2024] NSWPICPD 81 (Dent).
The applicant does not refer to the neck in her statement. The statement was made a while ago and prior to when the doctors comment on her neck. Noting the shoulder and neck are neighbours, often stiffness of the upper limb including into the shoulder and base of the neck might be anecdotally described as shoulder problems. This is a matter for expertise and Dr Bodel thought there was a neck condition and Dr Machart mentions the neck too. A lay interpretation of what body part is hurting unless it is obvious may be difficult.

Respondent’s submissions

The respondent’s submissions were recorded and form part of the Commission’s record. These are also set out below.

108.There is no issue that the applicant has a right shoulder injury. In her statement the applicant says as a result of her right shoulder injury she over relied on her left shoulder and she suffered a consequential left shoulder injury and a cervical spine injury as a result of imbalance in her shoulder.

The applicant needs evidence about those matters and the respondent submits that the applicant has not discharged her onus to establish that she suffers these consequential conditions as a result of her right shoulder injury.

110.With regard to the left shoulder the evidence from the applicant is slim. She makes a general assertion that she overuses the left arm. Dr Petchell, the treating orthopaedic surgeon, gives no opinion about any of these matters and there is very limited evidence from the general practitioner Dr Bui who does not refer to any left shoulder condition.
111.Dr Bodel simply makes statements without any justification whatsoever in the respondent’s submission.

The applicant does not disclose any detail about the allegation of overuse of the left shoulder and she simply says it is as a result of her right shoulder injury and there was an imbalance in her body, and there is nothing about the neck in her statement.
The applicant describes in her statement some of the impacts that she says her injuries had including taking care of everything around the house, cooking, cleaning and other domestic duties, she struggles lifting up furniture to vacuum and lifting heavy pots when cooking and she tends to just push through the pain. She describes difficulty putting on her bra when her shoulders are in pain and needing assistance when showering.
What the applicant’s statement does not say is because of her right shoulder she uses her left shoulder a lot more to do all of these things and that is why it has become sore. She says with some of these impacts that these activities contribute to both the left and right shoulders, and she is still doing some of these activities with her right shoulder.
To establish causation the starting point must be that there needs to be some evidence that the right shoulder injury has caused the applicant to rely heavily on the left shoulder and in what particular tasks and activities and how she has been limited by her right shoulder in doing those tasks. Her statement does not address this at all. There is a very general and broad brush approach.
Dr Petchell relevantly notes on 26 April 2022 that the applicant has noticed an increase in left shoulder pain and that complaint is consistent throughout some of the subsequent reports. Dr Petchell never gives an opinion as to what has caused that left shoulder pain. On
7 November 2023 Dr Petchell attributes left shoulder pain to lifting in a work assessment however he is just reporting what the applicant has told him.
The respondent’s submission is that Dr Petchell does not support the applicant’s case regarding the left shoulder.
Dr Bui’s certificates of capacity from July 2023 do not mention the left shoulder at all as a diagnosis, referring to the right rotator cuff tear, right shoulder impingement, tight supraspinatus tendon tear – partial, right subscapularis tendon full thickness tear of superior third, right subacromial bursitis and right biceps tendonitis.
The applicant is complaining for about 12 months by this time but curiously Dr Bui does not say anything about that in these certificates and does not add that diagnosis.
The same can be said about the cervical spine which also does not appear in the certificates of capacity. There are no clinical records of Dr Bui before the Commission and he was the nominated treating doctor for some time.
The applicant carries the onus to establish these conditions and the records or any other evidence does not explain the onset and causation of the left shoulder and neck symptoms. From the absence of Dr Bui’s records it can be inferred that they would not have assisted the applicant.
The respondent submits Dr Bodel simply makes unjustified comments.
In his report of 3 November 2022 the history Dr Bodel takes about the left shoulder is limited to the applicant beginning to develop some left arm pain which came on gradually but no investigations or treatment have been done for that at this time. That is the extent of it. There is nothing to suggest why that might have occurred or the mechanism of injury and the left shoulder is not specified.
The history Dr Bodel records in his supplementary report adds nothing on what he founds his opinion on. It appears to be based on a letter of instruction which appears to have had the s 78 notice and attachments including Dr Machart’s report, but there is no additional history taken and it is based on his examination some three years earlier. There is no additional information on causation or the activities or their frequency to give rise to any understanding of the exact mechanism of injury to the left shoulder or the neck.
Dr Bodel makes statements as to the existence of the consequential conditions. Dr Bodel on examination finds the left shoulder is mildly impaired however there is no further commentary in respect of how the left shoulder and neck symptoms may have arisen.
Dr Bodel does not explain how he comes to the view there is an aggravation, acceleration, exacerbation or deterioration of the left shoulder disease process leading to the slight restriction of left shoulder movement and that it is work related.
Dr Bodel’s opinion that the left shoulder has become symptomatic by way of favouring that side and aggravating the underlying disease has a few fundamental problems; what are the activities she has been performing, were those activities actually capable of giving rise to the symptoms in the left shoulder, and what were the symptoms attributable to overuse. These questions have to be answered before an answer can be arrived at.
Important elements of the contemporaneous records are not reconciled by Dr Bodel.
The applicant attended a physiotherapist practice and the history apparently taken by Mr Chiu is that the applicant is using her right arm more, which is not addressed in the applicant’s statement and is inconsistent with using her left shoulder more.
Dr Bodel’s opinion does not reconcile the fact that throughout late 2020 there is a full range of motion found in the left shoulder by Mr Chiu on 28 August 2020, 18 September 2020 and 9 October 2020.
Dr Keller, injury management consultant, assessed the applicant in April 2021 and again recorded full range of movement in the left shoulder.
There is no evidence the applicant increased the overuse or favouring of her left shoulder after the second surgery, and it cannot be inferred that her condition worsened after that surgery.
Dr Bodel has not reconciled these critical points in coming to his conclusion, and the respondent submits he has made a statement without justification. It should not be given any weight in accordance with Makita (Australia) Pty Ltd v Sprowles.[6]
[6] [2001] NSWCA 305 (Makita v Sprowles).
Dr Machart refers to a hypothetical opinion, meaning Dr Bodel has only made a broad assertion that there is some overuse.
Dr Machart says in the absence of the applicant describing the nature of overuse and in the absence of contemporaneous evidence one cannot conclude that any issues with the left shoulder and the neck arise from the right shoulder injury.
With respect to the neck there is no evidence from the applicant. There is an assertion in the pleadings that it was because of an imbalance, and the applicant’s statement refers to imbalance causing a problem with her hips and not her neck. The respondent submits that this is fatal to her claim. Dr Bodel does not actually give an opinion about the neck and proceeds to assess impairment without providing any justification.
Dr Bodel’s supplementary report includes commentary limited to evidence clinically of asymmetry of the neck and the disease provisions again apply. It is not pleaded as a disease injury, it is pleaded as a consequential condition and that is not what Dr Bodel says.
There is nothing in Dr Bodel’s report that says why this is a consequential injury with no further explanation, and there is no treating evidence in support that spells out that the right shoulder injury has caused the onset of cervical spine symptoms.
Dr Machart refers to pain behaviour and the applicant makes some submissions about it. Radiation of pain to the neck is not in the respondent’s submission sufficient to establish a consequential condition. There must be symptoms that come directly from the neck and not from another part of the body for the applicant to succeed.
Dr Bodel’s table of range of motion includes a normal range, but who has that normal range of motion, this is not explained, is it someone the applicant’s age or someone younger for example.
Dr Machart says the mild reduction of movement is not uncommon particularly at the applicant’s age, it may or may not represent degenerative changes. It is fairly typical of someone her age not to be displaying full movement even with asymptomatic and disease-free shoulders.
The ultimate conclusion is that any discrepancies between what Dr Bodel says is the normal range of motion and what he recorded on examination cannot be the basis of a finding one way or another as he does not provide an explanation of what that means in this particular case. Dr Machart says the findings are fairly typical for someone who is 64 years old.
There are two potential outcomes; a finding in favour of the applicant on one or both of the consequential injuries and referral to a Medical Assessor, or a finding in favour of the respondent for both of the alleged consequential conditions, and if so on the applicant’s evidence she is below the threshold. The Commission is able to make findings about WPI and enter an award for the respondent in respect of the s 66 claim.

Applicant’s submissions in reply

The respondent submits there is a lack of particularisation of the mechanism of injury and you could always say there could have been more details. This can be symptomatic of the front-end loaded scheme in the Commission and truncated hearings where evidence is put on before the issues have crystallised, and statements can be somewhat pithy. This does not mean there is an absence of evidence.
We know through commonsense how all of our limbs are used.
Mr Chiu records on 28 June 2019 the applicant “also complains of increased swelling in her left upper arm…”,[7] and on 12 November 2019 she “has been favouring with her left arm at work where possible. Would like some manual therapy for some symptom relief.[8] The applicant was struggling overusing her left arm on her return to work as a ward assistant, which is not an easy job.
[7] ARD page 148.
[8] ARD page 130.

Even if one does not have a rigorous job, just the simple fact of life is that you have to use your arms, for example between here and the railway station in opening a door, pressing buttons, holding on to a handrail, opening another door, getting in and out of a car.
We are using our limbs all the time and if one arm is in a sling or badly injured and you try not to use it, the other one is going to get double the workload.
Regarding treating evidence of the cervical spine, a treating doctor treating a specific body part is not likely to comment on the development of consequential problems unless they are particularly asked to. Secondly, a lot of those reports go right back to 2019, 2020 and 2021.
The applicant says the pain and tension in her shoulders caused an imbalance in her overall body, not just the hips. This is not fatal to her claim. She talks about imbalance in terms of her neck. She says as a result of her right shoulder surgery she began to experience some pain in her left shoulder due to overcompensating and over reliance and the left shoulder was very tender.
Dr Bodel finds impairment of the neck on his assessment which he explains as an overuse injury. It may not be a disease injury but he identifies a pathology and a physical change in the body which manifests as an assessable injury.
Both doctors took a history of pain going into the applicant’s neck and it is just a question of how you assess that, which is for the Medical Assessor. There is an impairment and a plausible explanation of the mechanism of how it is linked to the original injury as a consequential injury. That is a matter assessable by a Medical Assessor.

FINDINGS AND REASONS
Did the applicant sustain a consequential left shoulder and/or cervical spine injury

There is no dispute the applicant sustained a right shoulder injury on 19 January 2017.
The applicant must establish on the balance of probabilities that the symptoms and restrictions in her left shoulder and/or cervical spine result from her accepted right shoulder injury.[9]
[9] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45]-[46].
The applicant is not required to establish the consequential left shoulder or the cervical spine condition is an ‘injury’ pursuant to s 4 of the 1987 Act.[10] It is also not necessary for her to identify pathology for a finding to be made of a consequential injury.[11]
[10] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [56] (Kumar).
[11] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [169], Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [55].
The applicant must establish the accepted right shoulder injury has materially contributed to her left shoulder and/or cervical spine conditions even where there may be other causes.[12]
[12] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
In Kumar Roche DP confirmed Kooragang is the test to determine if a consequential condition arises from an injury.
The question of causation is determined on the facts of each case and requires a “commonsense evaluation of the causal chain” based on the evidence, including expert opinions where applicable.[13] There must be actual persuasion of the occurrence or existence of a fact before it can be found.[14]
[13] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [464]; 10 NSWCCR 796.
[14] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Turning first to the left shoulder, the evidence supports a finding that the applicant’s left shoulder condition is a consequential condition arising from the accepted right shoulder injury on 19 January 2017.
That evidence includes:
(a)    the applicant was apparently symptom-free prior to the injury on 19 January 2017;
(b)    the severity of the applicant’s right shoulder injury requiring two surgeries, the use of a sling for about six weeks following each surgery, extensive rehab and physiotherapy, the use of pulleys and a stick while recovering from the revision surgery, and ongoing right shoulder pain recorded by Dr Petchell and Mr Chiu;
(c)    Mr Chiu’s record on 28 June 2019 of the applicant complaining of increased swelling in her left upper arm;
(d)    Mr Chiu’s record on 12 November 2019 of the applicant favouring with her left arm at work where possible;
(e)    Mr Chiu’s record on 27 April 2020 that the applicant must reach with her left arm at work and she does not want to overcompensate with her left shoulder;
(f)    Dr Petchell’s record on 26 April 2022 following the revision surgery that the applicant noticed an increase in left shoulder pain;
(g)    Ms Firth notes on 30 June 2022 the applicant reports she has begun to experience discomfort through increased use of her left hand/arm and describes experiencing fatigue sensations in her left shoulder and upper arm which she attributes to compensation for the lack of use of her right arm;
(h)    the history recorded by Dr Bodel on 3 November 2022 of the development of left shoulder girdle pain, and his assessment of 2% WPI of the left upper extremity on examination;
(i)    Dr Petchell records on 7 November 2023 the applicant experienced left shoulder pain following a work assessment, and she had left shoulder pain prior to that which she attributed to overuse;
(j)    the applicant’s statement of 3 December 2024 in which she describes light duties before the first surgery as still involving physical work including cleaning and other tasks, being asked to do some tasks beyond her capacity and lifting restrictions in between the surgeries such as lifting and transporting furniture, and beginning to experience pain in her left shoulder due to overcompensation and over reliance to the point it was very tender to touch;
(k)    the applicant’s statement evidence that she is very limited in what she can do at home, she struggles to move around furniture, lift a heavy vacuum cleaner, lift heavy pots and pans when cooking, she had issues with showering and required assistance after the two surgeries, she has difficulties putting on a bra, and putting on tight fitting clothes causes pain, and
(l)    Dr Bodel’s opinion on 16 February 2025 that overuse of the left shoulder and left arm while recovering from the right shoulder could aggravate the left shoulder, the pathology in the left shoulder is causally related to the accepted right shoulder injury, and the left shoulder has become symptomatic by way of favouring that side.
I do not accept the applicant only makes a general assertion that she overuses her left arm. Her statement evidence is that she initially returned to light duties that involved physical work and she was asked to do some tasks beyond her capacity and lifting restrictions. This evidence finds support in the records made by Mr Chiu. She also describes the household and personal tasks she is limited in performing, although she tends to push through the pain.
I do not view as significant the absence of complaint of left shoulder symptoms to Dr Petchell prior to April 2022 as his attention was clearly focused on treating the applicant’s right shoulder, involving two surgeries. The diagnosis made by Dr Petchell, and by Dr Bui, in the certificates of capacity reflect the focus on her significant right shoulder injury.
Regarding the clinical records of Dr Bui not being in evidence, the rule in Jones v Dunkel[15] permits an inference that untendered evidence would not have assisted the applicant, but not that the evidence would in fact have been adverse to the applicant.
[15] [1959] HCA 8; (1959) 101 CLR 298.
Dr Bui was named in the applicant’s injury claim form of 24 January 2018, although Dr Petchell provided a number of certificates of capacity along with Dr Bui. The evidence suggests the applicant sought regular treatment from Dr Petchell and Mr Chiu and those records are in evidence. The applicant’s statement evidence is that she typically confers with Dr Bui if she requires any medical assistance and she is currently undertaking home exercises. The rule in Jones v Dunkel does not operate to require the applicant to tender merely cumulative evidence.[16] In the circumstances of this case however I accept the inference that Dr Bui’s records would not have assisted the applicant.
[16] Manly Council v Byrne [2004] NSWCA 123.
I do not accept the respondent’s submission that Dr Bodel simply makes unjustified comments.
Dr Bodel’s opinion is based on the history of a significant right shoulder injury, the left shoulder having been asymptomatic prior to the right shoulder injury, the complaint made of the development of some left shoulder girdle pain, and his clinical examination of the applicant.
In his supplementary report Dr Bodel says he is satisfied that overuse of the left shoulder and left arm while recovering from the right shoulder could cause symptoms in the left shoulder. The left shoulder has become symptomatic by way of favouring the right side.
I agree with the applicant that this is a plausible explanation. Common sense suggests that if the applicant was doing more with her left arm because she was favouring her right shoulder, the symptoms she developed in her left shoulder result from the right shoulder injury.[17]
[17] Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [43].
The expert medical opinion of Dr Bodel and the applicant’s statement evidence with respect to activities she undertook when on light duties at work and at home provide an explanation of overuse and of her left shoulder symptoms.
The clinical records of Mr Chiu and the report of Dr Keller referred to by the respondent as not having been reconciled by Dr Bodel date from 2020 to 2021. A full range of movement in the applicant’s left shoulder may have been found by Mr Chiu and Dr Keller prior to Dr Machart’s examination of the applicant in June 2021, however Dr Machart and Dr Bodel both then find diminished left shoulder movement.
Assessed in the light of all the evidence I afford weight to Dr Bodel’s opinion. There is sufficient correlation between the history recorded by Dr Bodel and the applicant’s evidence, which is unchallenged and which I accept. Dr Bodel takes a history of some left arm pain coming on gradually and a current complaint of the development of some left shoulder girdle pain. An exact correspondence between assumed facts forming the basis of Dr Bodel’s opinion and the facts proved is not required.[18] I do not accept this opinion is without justification.
[18] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
I find that Dr Bodel’s opinion drawing on his entire body of experience, while not articulated in great detail, provides a satisfactory basis on which a finding can be made that the applicant sustained a consequential left shoulder injury.[19]
[19] Australian Securities & Investments Commission v John David Rich & Ors [2005] NSWCA 152 at [170].
I afford less weight to Dr Machart’s opinion regarding the applicant’s left shoulder condition.
On 11 June 2021 Dr Machart found slightly diminished movement in the left shoulder, although also finding the left shoulder is asymptomatic and not painful, and there was no report of left shoulder symptoms that day.
Dr Machart compared left shoulder movement with right shoulder movement, describing the left shoulder as asymptomatic. There is evidence the applicant had been concerned about overcompensating with her left shoulder by that time, however the earliest record made of left shoulder symptoms is by Dr Petchell in April 2022.
There may be difficulties in characterising the left shoulder as asymptomatic in June 2021 and using the left shoulder as representing a pre-existing abnormality or condition, however Dr Bodel comments that this methodology is consistent with AMA5.
Dr Bodel otherwise disagrees with Dr Machart. While there may be some degenerative change Dr Bodel is satisfied that overuse of the left shoulder and arm while recovering from the right shoulder could aggravate a left shoulder degenerative process.
I do not agree that Dr Bodel’s conclusion is a hypothetical without evidence of mechanism of injury. The applicant describes the activities she undertook at work and at home that as a matter of commonsense resulted in overuse and there are contemporaneous records of left shoulder pain resulting from overuse.
While the applicant’s age may have caused the mild reduction of movement found by Dr Machart and may be fairly typical, I find the accepted right shoulder injury has materially contributed to her left shoulder condition even if age might also be a factor.[20]
[20] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
I am unable to accept Dr Machart’s opinion that the applicant displays pain behaviour. In March 2018 Dr Machart refers to an element of non-organic illness behaviour. By
February 2021 Dr Petchell notes the applicant’s ongoing pain is possibly due to failure of the initial surgery. In June 2021 Dr Machart refers to extensive pain behaviour with evidence of exaggeration, inconsistency and unreliability, noting his examination of the applicant’s right shoulder was complicated by pain behaviour. Right shoulder revision cuff repair surgery was carried out on 30 July 2021 with a reduction in pain noted by Dr Petchell in October 2021.
In August 2023 Dr Machart comments that the repair is holding up, the reasons for ongoing pain are not immediately obvious, and again there is an element of pain behaviour. Her lack of clinical progress is due to combination of pain behaviour and possibility of disruption of the repair in Dr Machart’s opinion.
During 2023 Dr Petchell considered whether a second revision was worthwhile undertaking, and following a further MRI in February 2024 he did not think so. Dr Petchell records the applicant’s ongoing pain in this period without commenting on pain behaviour.
The applicant’s evidence is that she continued to attempt to return to work, despite being in pain, until no suitable duties were made available in 2022. Ms Firth also notes she appears motivated to return to her pre-injury workplace which is no longer an option.
In my view references to pain behaviour in the circumstances of this case detract from the weight that may otherwise be afforded to Dr Machart’s opinion.
Dr Machart’s opinion is the concept of overuse is not part of evidence-based medicine. I agree with the applicant’s submission that if by evidence-based Dr Machart is referring to objective investigations for example, this is not a requirement of a finding that a consequential condition has arisen.
I find on the basis of a commonsense evaluation of the causal chain that the applicant’s left shoulder condition is consequential to her right shoulder injury as a result of overcompensation and overuse.
The applicant has discharged her onus to establish she has sustained a consequential left shoulder injury as a result of the accepted right shoulder injury.

Turning to the cervical spine, I am of the view there is insufficient evidence to establish the applicant’s cervical spine condition is related to her accepted right shoulder injury.
The applicant gives no account of cervical spine symptoms in her statement evidence. There may be reasons for this, the trapezius muscle can be related to pain and stiffness in the neck and shoulders for example, and as was submitted she is not a doctor, however it is difficult to accept she has sustained a cervical spine injury in the absence of a description of symptoms, or an explanation of the relationship between the shoulder injuries and a cervical spine condition.
I do not place weight on the pleadings that appear to include reference to a cervical spine injury due to the imbalance in the applicant’s shoulders. Her statement evidence is that her shoulder pain and tension caused an imbalance in her overall body and she goes on to specifically refer to her hips, right elbow and wrists as well as her right knee. This would not necessarily be fatal to her claim if there was other evidence of her cervical spine symptoms.
Dr Bodel provides the only evidence regarding a consequential cervical spine condition.
Dr Bodel describes a current complaint of pain and stiffness in the neck. On examination the applicant complains of tenderness in the trapezius muscles at the base of the neck on the right side and there is guarding in that area. He finds she has a reduced range of neck flexion, extension and rotation in all directions, most restricted in rotation to the right.
Dr Bodel assesses 5% WPI as DRE Cervical Category II, with asymmetry of movement and guarding. In his supplementary report Dr Bodel confirms he found evidence clinically of asymmetry of neck movement and in his opinion the cervical spine is also a consequential injury.
Dr Bodel examines the applicant on 14 June 2022. Dr Machart examines her most recently on 11 August 2023 finding full movement of the cervical spine.
Dr Machart on 11 June 2021 notes pain radiating from the shoulder, the elbow and up the neck, although the neck was asymptomatic and there was no injury. No cervical symptoms were reported that day. There was no pain or tenderness and there was full movement of the cervical spine. There is no diagnosable condition in his opinion.
Dr Machart says there was no mention in Dr Bodel’s assessment or in any of the medical reports of injury or pathology in the cervical spine, let alone a relationship to the injury. It is not clear why Dr Bodel included the cervical spine in Dr Machart’s opinion. The assessment of WPI was not linked to features in the history taken, when or how symptoms developed or the applicant’s account of the symptoms.
In Dr Machart’s opinion Dr Bodel’s conclusion regarding the cervical spine is hypothetical without evidence of mechanism of injury, discussion of the mechanics of aggravation and comparison to evidence-based medicine. He saw no evidence of underlying cervical spine disc disease.
On 28 August 2023 Dr Machart refers to a current symptom of pain from the base of the neck, through the trapezius muscle on top of the shoulder and down towards the elbow, similar to Dr Bodel’s description. However Dr Machart’s opinion is that the right shoulder pathology can cause pain radiation down towards the elbow and up into the neck.
I prefer Dr Machart’s opinion regarding the claim made for a consequential cervical spine condition.
I accept the respondent’s submission that there is nothing in evidence connecting a cervical spine condition with the applicant’s right shoulder injury.

201.The applicant has not discharged her onus to establish she has sustained a cervical spine condition as a consequence of her right shoulder injury and there will be an award for the respondent with respect to the cervical spine.
SUMMARY

The applicant has sustained a consequential left shoulder condition as a result of the accepted right shoulder injury of 19 January 2017.
There will be an award for the respondent with respect to the cervical spine condition.
The matter is to be remitted to the President for referral to a Medical Assessor to assess WPI of the applicant’s right and left shoulders and scarring.

[2025] NSWPIC 417

19 August 2025