Chandi v Busways Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Chandi v Busways Group Pty Ltd [2023] NSWPIC 417
APPLICANT:	Reji Chandi
RESPONDENT:	Busways Group Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	16 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 38(2); the respondent accepts the applicant sustained injury to his left shoulder in the course of his employment with the respondent; the respondent disputes the applicant sustained injury to his neck to which his employment is a substantial contributing factor to injury; the respondent disputes the applicant sustained consequential condition in his right shoulder and the respondent disputes the applicant is likely to continue to indefinitely have no current work capacity resulting from injury sustained in the course of his employment with the respondent as prescribed by section 38(2); Held – the applicant sustained injury to his neck in the course of his employment with the respondent with his employment being a substantial contributing factor to injury; the applicant sustained consequential condition in his right shoulder; the applicant is likely to continue indefinitely to have no current work capacity from injury sustained in the course of his employment with the respondent and has entitlement to weekly compensation payable under section 38(2).
determinations made:	The Commission determines: 1. The applicant sustained injury to his neck on 11 February 2019 in the course of his employment with the respondent and his employment was a substantial contributing factor to injury. 2. The applicant has sustained consequential condition in his right shoulder. 3. The applicant has had no current capacity for work since 13 August 2022 resulting from injury sustained on 11 February 2019 in the course of his employment with the respondent and is likely to continue to indefinitely have no current work capacity resulting from that injury. 4. The applicant has entitlement to weekly compensation payable under s 38(2) of the Workers Compensation Act 1987 from 13 August 2022 to date and continuing in accordance with the Workers Compensation Act 1987 at the rate of $1,056 per week (subject to indexation) with credit to the respondent for weekly compensation already paid to the applicant during that period.

STATEMENT OF REASONS

BACKGROUND

The applicant, Reji Chandi (Mr Chandi) was previously employed by the respondent, Busways Group Pty Ltd (Busways), working as a bus driver. Mr Chandi commenced working with Busways in July 2016. Mr Chandi is currently 51 years of age.
In these proceedings Mr Chandi claims weekly compensation payable under s 38 of the Workers Compensation Act 1987 (1987 Act) resulting from injury sustained on 11 February 2019 in the course of his employment with Busways. Mr Chandi claims weekly benefits payable on an ongoing basis from 13 August 2022.
The circumstances of injury are described in the following terms:
“At the time of injury the applicant was employed by the respondent as a bus driver. On the date of injury the applicant was steering a very tight steering wheel. As he was steering, he felt a click and felt immediate pain in his left shoulder and neck. Further as a result of overusing his right shoulder in order to compensate for his injured left shoulder, the applicant suffered injury to his right shoulder.”
While Mr Chandi’s claim for compensation payable under the 1987 Act is declined and he has been issued with a number of notices issued in accordance with s 78 of the Workplace InjuryManagement and Workers Compensation Act 1998, Busways does not dispute Mr Chandi sustained injury to his left shoulder on 11 February 2019 in the course of his employment with Busways and the parties agree Mr Chandi’s pre-injury average weekly earnings (PIAWE) are $1,320.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Mr Chandi sustained injury to his neck on 11 February 2019 in the course of his employment with Busways, with employment being a substantial contributing factor to injury;
(b)    whether Mr Chandi sustained a consequential condition in his right shoulder;
(c)    whether Mr Chandi suffers an incapacity for work resulting injury sustained on 11 February 2019 in the course of his employment with Busways, and if so,
(d) whether Mr Chandi has entitlement to weekly compensation payable under s 38 of the 1987 Act from 13 August 2022 ongoing (with credit to Busways for weekly compensation already made to Mr Chandi during that period).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

These proceedings came before me for preliminary conference on 1 March 2023 and with Mr Chandi’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 24 April 2023. Mr Malouf of counsel appeared for Mr Chandi and Mr Grimes of counsel appeared for Busways. Mr Chandi was present.
Following my discussions with counsel I was 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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I was satisfied that the parties have had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
When it became apparent the arbitration hearing would not conclude on the day of 24 April 2023 I issued directions for the lodgement and service of written submissions on behalf of Busways and the lodgement and service of written submissions in reply on behalf of Mr Chandi. This has now occurred.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents and attached documents dated 24 February 2023 lodged on behalf of Mr Chandi;
(d)    Application to Admit Late Documents and attached documents dated 18 April 2023 lodged on behalf of Mr Chandi, and
(e)    Application to Admit Late Documents and attached documents dated 21 April 2023 lodged on behalf of Busways.

Oral evidence

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

FINDINGS AND REASONS

Brief review of evidence

A brief review of evidence follows.

Statements of Mr Chandi

Mr Chandi relies on a number of statements. His initial statement is dated 26 June 2019 and his subsequent statements are dated 9 August 2022, 24 November 2022 and 17 March 2023.
In his initial statement Mr Chandi made no mention of his neck and makes no mention of his right shoulder, which perhaps does not fully accord with Mr Chandi’s statement dated 9 August 2022 in which he said:
“On 26 June 2019 I made a statement about my injuries. At the time of the statement I had constant pain in my left shoulder, neck and developing pain in my right shoulder.”
In his initial statement Mr Chandi said that prior to sustaining injury on 11 February 2019 he was “fit and healthy”. Relevant to the injury he sustained on 11 February 2019 Mr Chandi explained:
“About 4pm whilst I was driving the bus in the Penrith area I was making a left turn. I suddenly felt a sharp stabbing pain to my left shoulder under my shoulder blade. The pain shot down my left arm and I also felt like I could not move my entire left arm… I rested for about 10 minutes and did not tell anyone about my shoulder pain.”
Mr Chandi further explained:
“On 19 June 2019 I was driving the bus as normal. Around 5.15pm towards the end of my shift I was driving through Erskine Park. I was making a left turn and felt a sharp stabbing pain in my left shoulder and down my arm. It was the same feeling as previous… I did not radio in to tell them of my shoulder pain.”
In his initial statement Mr Chandi described the injury that he had sustained in the course of his employment with Busways in terms of “a partial thickness articular surface tear within the posterior supraspinatus tendon insertion” and makes no mention of having sustained injury to his neck.
As noted, in his subsequent statement dated 9 August 2022 Mr Chandi said that while at the time he made his initial statement he suffered “constant pain in his left shoulder, neck and developing pain in his right shoulder”. Regarding this, Mr Chandi explained he was confused as to the purpose of his initial statement and as he was only asked questions about his left shoulder he only mentioned his left shoulder injury.
In this subsequent statement Mr Chandi said in fact he had sustained injury to both his left shoulder and his neck on 11 February 2019 and that he sustained a consequential condition in his right shoulder “throughout the process of rehabilitation.” Mr Chandi relevantly said:
“On the date of the subject injury … I was making a tight left turn and felt a click in my left shoulder, followed by significant pain which radiated into the left side of my neck.”
In this subsequent statement Mr Chandi also canvassed the surgical treatment he came to on his left shoulder under the care of Dr Kuo, being left shoulder arthroscopy, rotator cuff repair and bicep repair on 19 February 2020 and left shoulder manipulation and injection on 10 September 2020. Mr Chandi described this surgical treatment as “not helpful”. Mr Chandi said that as he “felt weak and in pain” and “was unable to lift anything with his left arm”, he began to rely on his right arm. He said:
“I also noticed that while focusing on trying to reduce the pain in my left shoulder, I began to wake up with stiffness and aches in my right shoulder.”
Mr Chandi further explained:
“Throughout late-2020 I continued to have pain in my left shoulder and my neck. I noticed that when I was doing basic tasks around my house, I was relying heavily on my right shoulder to compensate for the pain in my left shoulder. For example, I would have to use my right arm to steer my car wheel, or to bathe myself, as my left shoulder was in constant pain. I would begin and end the day with aching pain in both shoulders as a result. I noticed that the pain in my shoulders would radiate to my neck at the end of the day, which made it difficult to move my head around or sleep at night.
…
In or around May 2021, I began to feel a worsening pain in my right shoulder when working as a cleaner. The pain would worsen when I was working which would make it difficult for me to work at all, and I often had to take days off. Housework such as washing dishes became even more difficult as I used to rely on my right shoulder, which was now also in constant pain.
…
Throughout late 2021 to 2022 I continued to face pain in my left shoulder, neck and consequential pain in my right shoulder. I found myself relying heavily on my right shoulder for my cleaning job, as well as driving and other basic household tasks, which made it incredibly sore toward the end of the day. I noticed that the pain in my right shoulder worsened to the point where I was struggling to complete basic tasks with either arm such as cleaning my house and showering myself.”
In a further subsequent statement dated 24 November 2022 Mr Chandi confirmed his weekly benefits ceased “as of 26 October 2022”. Mr Chandi also confirmed he had not received income from an alternate employer or from a business since his claim for compensation was declined. Relevant to his work as a cleaner, Mr Chandi explained that in or about April 2021 he contacted his friend “Joseph” who owned a cleaning company, Steamhero, and with iCare approval he undertook work on a trial basis, without success. While it appears Mr Chandi had a business interest in Steamhero, Mr Chandi said he received no income from the business.
In a further subsequent statement dated 17 March 2023 Mr Chandi explained he remained reliant on pain medication and said:
“I do not have the capacity to return to work, because I suffer from serious pain and restricted movement in various parts which would greatly impact my ability to complete my required responsibilities and would increase the possibility of my suffering from further injuries.”

Statement of Joseph George

Mr Chandi relies on a statement prepared by Mr George dated 12 December 2022. Mr George explained he has known Mr Chandi for some 10 years and was aware Mr Chandi sustained an injury at work. Mr Joseph said he had invited Mr Chandi to join him in his cleaning business venture and help him with “administration duties”. Mr Joseph also said that following a meeting with IPAR, in September 2021 Mr Chandi “joined for a work trial”, which involved Mr Chandi attempting “some form of physical work at work site” and sustaining bilateral ankle injury. Mr George confirmed Steamhero has “never received any profit since it started” and accordingly “there is no way any of us could get any income from it.” Mr George said a decision had been made to “dissolve this business and conclude it.”

Notification of injury/illness

The notification of injury/illness form dated 14 February 2019 makes no reference of an injury to the neck.

Treating medical evidence

Diagnostic imaging

An ultrasound left shoulder dated 12 February 2019 reportedly demonstrated small partial thickness tear of the supraspinatus tendon. There is subacromial bursitis and bursal impingement on abduction.
MRI cervical spine dated 6 September 2019 reportedly demonstrated subtle oseodiscal elevation of the anterior theca. Incidental haemangioma anterior aspect of C6 vertebra.
MRI scan of the cervical spine dated 26 March 2021 reportedly demonstrated mild annular disc bulge at the C5/6 level causing slight flattening of the anterior theca. No significant disc protrusion seen elsewhere in the cervical region. No foraminal stenosis appreciated laterally. The cervical cord appears of uniform signal intensity. No discrete abnormality seen. Incidental C6 vertebral body haemangioma.
Bone scan dated 9 August 2021 reported demonstrated no specific focal scintigraphy abnormalities in the spine to explain the patient’s current symptoms.”
MRI right shoulder dated 15 September 2022 reportedly demonstrated:
“Complex tear of rotator cuff with full thickness component measuring 7 mm at the supraspinatus tendon. The tear extent is far greater with interstitial delamination extending for at least 27 mm at the supraspinatus tendon and over 40 mm at the infraspinatus tendon with infraspinatus muscle oedema close to the tenomuscular junction. Subscapularis tendinosis over 20 mm also identified. Degenerative SLAP tear of labrum. Joint effusion.”

Southlands Medical Clinic
Dr Cheong

Mr Chandi came under the general medical care of Dr Cheong. The clinical records of Southland Medical Practice are in evidence, and it is evident Mr Chandi consulted with Dr Cheong on 12 February 2019 with complaint about his left shoulder. In the Certificate of Capacity issued on 13 February 2019 Dr Cheong provided diagnosis of “left shoulder – partial tear supraspinatus and bursitis” and there is no mention of Mr Chandi suffering a problem with his neck.
The first mention Dr Cheong made of any complaint of neck pain by Mr Chandi is in the Certificate of Capacity issued on 29 May 2019 when Dr Cheung wrote “flare up whilst on holiday – neck pain and left arm numbness.” However, in his clinical records relevant to Mr Chandi’s consultation with him on 28 May 2019 Dr Cheung made no reference to Mr Chandi’s neck pain coming on while on holiday in India in that he merely noted:
“was in India for one month whilst on leave.
flare up of pain esp down left arm/shoulder.
can do office based duties for 2 weeks.
avoid driving until reviewed + physio.”
In the Certificate of Capacity issued on 5 June 2019 Dr Cheung provided diagnosis of “left shoulder – partial tear supraspinatus + bursitis” and provided opinion “full capacity to return to work. Clearance”. Dr Cheung noted on 6 June 2019 “full capacity to return to work. Nil further shoulder pain. Full ROM was noted on examination.”
On 24 July 2019, Dr Cheong noted Mr Chandi reported his left shoulder pain had improved but noted there was now “some extension up neck.”

Dr Sabir

Subsequent to Dr Cheong, Mr Chandi came under the general medical care of Dr Sabir. Dr Sabir’s clinical records dated 5 May 2021 record “now started getting pain in the right side and neck – probably due to overcompensation with RHS.”
In his report dated 16 June 2022 Dr Sabir replied in response to specific questioning:
“Reji has been under workers compensation for his left shoulder since 2019. He has few surgeries but was not improving (was unable to go back to re injury duties, bus driving duty).”
In his report dated 20 September 2022 Dr Sabir replied in response to specific questioning about Mr Chandi:
“He developed left shoulder injury due to tight steering wheel at work. He had initial ultrasound and then MRI on the left shoulder confirming left supraspinatus tear and bursitis. He was referred for physiotherapy and later on to shoulder surgeon (Dr Warren Kuo). His left shoulder pain never improved although he had steroid injections and surgery.
Yes, I agree that Mr Reji developed right shoulder pain due to overuse as he was favouring left shoulder. His left shoulder had been injured for a long time and he do few trials of bus driving and other duties at work while being on worker’s compensation claim where he overused his right shoulder.
He complained few times about pain in right shoulder and neck/shoulder blades when he was given trials of some duties especially bus driving at work. He clearly mention this right shoulder injury in his consult on 5/5/21.
He always had pain in left shoulder and left side of neck from the beginning of the injury. His initial MRI of cervical spine was done on 06/09/2019.
…
Reji complained to me about his left shoulder and neck pain from the beginning of the injury. He had investigations on left shoulder and cervical spine.
…
Physiotherapy, steroid injection and surgery on left shoulder could never improve his pain. He continued to get worse and range of motion on left shoulder gradually reduced to a point where he was recommended a change of occupation (was not suitable to go back to pre-injury duties of bus driving).
He developed pain in right shoulder gradually but became a more prominent in issue in May last year.”
In the latest Certificate of Capacity issued by Dr Sabir, dated 21 February 2023, Dr Sabir certified Mr Chandi as having no current capacity for work. At that time Dr Sabir provided comment:
“have seen dr Khatib, asked to continu physiuo on both ankles/Right shoulder pain started as he was compenstig left shoulder. Needs MRI on right shoulder.”

Dr Kuo

Mr Chandi has come under the orthopaedic care of Dr Kuo. In his reports dated 26 November 2019, 17 June 2020 and 12 August 2020 Dr Kuo made no mention of Mr Chandi’s neck. In his reporting, Dr Kuo recorded no complaint of neck symptoms until his report dated 18 February 2021. On that occasion Dr Kuo reported Mr Chandi had been complaining of posterior neck pain, which he considered warranted MRI investigation. In his subsequent report dated 3 May 2021, Dr Kuo reported Mr Chandi was still experiencing “a lot of posterior neck pain especially after an hour of driving.” Dr Kuo was sufficiently concerned about Mr Chandi’s neck symptoms and MRI scan findings on 26 March 2021 that he recommended referral to a spinal surgeon.
The lack of mention by Dr Kuo of complaint of neck symptoms until 18 February 2021 does not accord Mr Chandi’s comment he told Dr Kuo on or about 17 June 2020 that there had been no reduction in the pain in his neck.

Dr Singh

Mr Chandi came under the specialist care of Dr Singh. Dr Singh is a spinal surgeon. In his report dated 1 June 2021 Dr Singh wrote “His MRI cervical spine done in March 2021 does not show significant nerve compression. I have advised him to do an X-ray of cervical spine.” While Dr Singh provided diagnosis in terms of C5/6 neck lesion and recommended an injection, Mr Changi did not wish to undertake this mode of treatment.

In his report dated 23 August 2022, in response to specific questioning, Dr Singh relevantly wrote:
“Mr Chandi is a very pleasant 49 year old gentleman who has neck pain with left arm pain and paraesthesia for 2 years, symptoms started at work. Neck pain is dull aching type, but he denies any weakness in his arms…
The history and mechanism of injury suggests a strain of the cervical spine in 2019, at the same time when he had a shoulder injury. It should be noted that the symptoms from a neck injury frequently overlap that of a shoulder injury.”

Dr Khatib

Mr Chandi came under the specialist care of Dr Khatib relevant to his ankle injuries. Dr Khatib is an orthopaedic surgeon. In his report dated 7 June 2022 Dr Khatib noted of Mr Chandi:
“He suffered a work related injury to his shoulder in 2020. He was off work for a while. In 2021 he was asked to trial returning to alternative duties as a cleaner as he was not fit to return to his usual work as a bus driver.”
While Dr Khatib provided a subsequent report dated 21 June 2022, it is evident this report is relevant to Mr Chandi’s ankle injuries, and it is not necessary for me to canvass this report here.

Sydney West Physio

In response to specific question at initial assessment on 18 February 2019 as to “what part of your body are you having treated” Mr Chandi said, “left shoulder/hand.” Likewise the clinical records dated the same day record under the heading “Initial Rx and reassessment”, “… upper trap, supraspinatus/infraspinatus” and make no mention of the neck. In his report dated 18 February 2019, Mr Han made no mention of symptoms or treatment relevant to the neck and there is no mention of the neck in the Allied Health Recover Request dated the same day.
The clinical records dated 20 February 2019 made no mention of the neck and on 6 March 2019 and 18 March 2019 a full range of motion of the cervical spine in all directions is recorded. In his report dated 20 March 2019 Mr Jurkovic wrote “C/spine: NAD quadrant negative”.

Medical and Fitness Centre

Mr Chandi came under the care of practitioners at the Medical and Fitness Centre, including Mr Semaan and Dr Mahmood.
While in his report dated 25 June 2019 Mr Semaan, treating physiotherapist, made no mention of the neck, in his report dated 27 July 2022 Mr Semaan wrote:
“Mr Reji Chandi attended initial physiotherapy assessment on 24 June 2019. This was following his injury on the 11^{th of} February 2019 and was initially under the care of Dr Steve Cheong. Mr Chandi complained of left anterior shoulder pain, cervical spine tightness and pain localised to the left side of cervical extensors. His main concern was his left shoulder pain and he pointed at an area just lateral to his left acromioclavicular joint.”
In this report dated 27 July 2022 Mr Semaan provided opinion regarding Mr Chandi:
(a)    in response to specific questioning about his alleged consequential right shoulder condition:
“Yes, I believe that Mr Chandi developed a consequential injury to his right shoulder due to overuse. I believe this is due to him compensating for his left shoulder injury. Mr Chandi complained or right shoulder pain on several occasions to me during the course of his treatment. Initially, I advised Mr Chandi to monitor his symptoms and notify his Nominated treating doctor (NTD) if the pain in his right shoulder persisted. Mr Chandi complained of ongoing pain in his left shoulder during the duration of treatment with myself. He developed a habit of over utilising his right shoulder for most tasks involving ADLs and PADLs. This resulted in eventual right shoulder pain which worsened in nature. He reported to me on several occasions that he reported the right shoulder pain to his NTD, Dr Saadia Sabir.
…
Mr Chandi first mentioned his right shoulder pain to me on the 24^{th of} April 2020. This was reported until he ceased treatment with myself in November 2020.”
(b)    in response to whether he sustained injury to his neck on 11 November 2019 in the course of his employment with Busways, as alleged:
“Yes, I believe so. Unfortunately, Mr Chandi’s main complaint was his left shoulder at his initial assessment. Although I did note his neck complaints, I chose to focus on his left shoulder pain and injury. This resulted in greater attention and focus on Mr Chandi’s left shoulder, rather than his neck injury. Mr Chandi was provided with neck stretches and strategies later during his treatment plan. Mr Chandi was also provided a range of manual therapy techniques aimed at aiding his neck pain throughout the course of treatment with myself.”
(c)    in response to agreement or otherwise with Dr Gehr’s opinion (discussed below):
“Yes, I agree with Dr Gehr’s opinion. I believe Mr Chandi has suffered a consequential injury to his right shoulder due to overuse and a frank injury to his neck. I have mentioned Mr Chandi’s right shoulder pain above on several occasions, this is due to overuse. Mr Chandi complained of neck pain initially and this was treated throughout the course of treatment.
Unfortunately, the focus of treatment following Mr Chandi’s injury was placed on his left shoulder.”

49. While on 16 December 2019 Dr Mahmood noted on examination “Nil cervical tenderness, nil neck rash, nil lateral cervical tenderness” it is evidenced elsewhere by Mr Semaan that Mr Chandi had complained of “cervical spine tightness” as early as 24 June 2019.

Independent medical evidence

Professor Courtney

Mr Chandi was assessed by Professor Courtney in his capacity as independent medical examiner. Professor Courtney is an orthopaedic surgeon. Professor Courtney provided reports dated 28 June 2021 and 28 February 2022.
In his report dated 28 June 2021 Professor Courtney relevantly wrote “there is no cervical pathology contributing to the left shoulder.”
In this initial report Professor Courtney also relevantly noted of Mr Chandi:
“he is transitioning to his pre-injury duties. He is currently, after he returned from leave, doing full hours. At the moment is doing part admin and part driving. I think he will be able to get back to full driving in the longer term.”
In his subsequent report dated 28 February 2022 Professor Courtney noted Mr Chandi complained of pain in his right shoulder and noted Mr Chandi’s left shoulder remained symptomatic.
However, in this report Professor Courtney questioned the validity of Mr Chandi’s presentation in that he wrote:
“Cervical spine: He demonstrated restricted movement of the cervical spine when I did the formal examination however, informally he showed far greater movement indicating significant exaggeration and inconsistencies… with regards to examination of the cervical spine there is inconsistency in Dr Gehr’s report when he talks about decreased sensation of the C6,C7 and reduced hand grip on the left compared to the right but there is no evidence of any wasting and that is inconsistent and not in accordance with what I found on my examination.”
Professor Courtney relevantly provided opinion:
“I do not believe there is any causation between the problems with the cervical spine … that in any way is attributable to the original injury… I did not believe that this gentleman sustained an injury to his cervical spine. He was sitting on a bus, and I can understand that he may have had an injury to his left shoulder but there is absolutely no reason that he would have had an problem with his cervical spine due to the history of the injury”;
“I do not believe that there is any causation between the problems with his … right shoulder that is in any way is attributable to the original injury. With the restricted movement during the formal consultation being inconsistent with the informal component and a full range of movement of his right shoulder I did not believe that there are any impairments in those areas”;
and,
“I do not believe there is any consequential condition to his right shoulder. He has a full range of shoulder movement when I had examined him, and he has had on both occasions and there is absently no causal chain of connection between the two. This man is right hand dominant. He was not using his left hand. He was doing much less work than normal, and I would not accept that he was favouring the right arm after it was the dominant arm. Therefore I see no causal relationship between his right shoulder condition, and anything related to his work and in fact I did not see anything abnormal in his right shoulder when I examined him.”

Dr Gehr

Mr Chandi was assessed by Dr Gehr in his capacity as independent medical examiner. Dr Gehr is an orthopaedic surgeon. Dr Gehr provided two reports dated 2 November 2021. Dr Gehr also provided reports dated 15 September 2022 and 18 March 2023.
In his initial report following assessment on 2 November 2021 Dr Gehr described the circumstances of injury:
“The accident occurred on 11/2/2019, he was driving a Mercedes bus which had manual steering. Which are difficult to turn at round abouts.
As he was turning a very tight steering wheel, he felt a click and pain over the left shoulder as well as the left side of his neck.”
Mr Chandi relevantly presented at assessment with complaint of pain in his left shoulder, pain in his right shoulder and pain in the left side of his neck. He also presented with complaint of stiffness in his left shoulder, stiffness in his right shoulder and stiffness in his neck. Mr Chandi reported to Dr Gehr that there had been “no improvement” despite it now being two and half years since the incident.
Following clinical examination and review of the diagnostic imaging made available to him, Dr Gehr provided summary and conclusion:
“This is a 49 year old man. Injured at work on 11/2/2019 with injury to his left shoulder and cervical spine. Imaging showed a partial tear of the rotator cuff mechanism. He subsequently required a left shoulder arthroscopy with rotator cuff repair and biceps tenodesis. He has had a manipulation under anaesthesia and injection for capsulitis and further steroid injections, but he has persisting pain in the left shoulder on examination today, I found rotator cuff muscle wasting and decreased range of motion in the left shoulder.
He also sustained cervical spine pain or injury at the time of subject accident, and he had persisting pain in that region since on examination today, I found evidence of guarding, dysmetria, decreased sensation at C6-C7 on the left side and decreased handgrip strength on the left side.
…
After the surgical procedures in left shoulder, he developed problem with his right shoulder with pain and decreased range of motion with the clinical picture of impingement, I found decreased range of motion on examination today.”
Dr Gehr provided diagnosis:
(a)    Left shoulder soft tissue injury, rotator cuff pathology, requiring rotator cuff repair and further manipulation with steroid injections with persisting pain and loss or range of motion.
(b)    Cervical spine soft tissue injury with left radiculopathy.
(c)    Right shoulder soft tissue injury with pain and loss of range of motion.
Dr Gehr considered prognosis to be poor. He said:
“It is over two and a half years since the subject accident and he remains symptomatic, so the prognosis is poor.”
In response to specific questioning Dr Gehr said of Mr Chandi:
“He is not able to get back to his pre-injury occupation. He is not able to get back to his pre-injury occupation because of the need to have near-normal shoulders in regard to use of the steering wheel.”
While in this initial report Dr Gehr provided opinion Mr Chandi is unlikely to return to his pre-injury duties, he failed to provide opinion as to whether Mr Chandi could undertake suitable duties or work in alternate employment.
In his supplementary report dated 15 September 2022 Dr Gehr confirmed his previously expressed opinion that Mr Chandi sustained injury to his neck on 11 February 2019 in the course of his employment with Busways and also confirmed opinion Mr Chandi suffered a consequential condition in his right shoulder. With reference to certification by Mr Chandi’s general practitioner, Dr Gehr also provided opinion that Mr Chandi had been totally unfit for work since 13 August 2022.
In his supplementary report dated 18 March 2023 Dr Gehr confirmed his opinion that Mr Chandi is totally unfit for his pre-injury duties and begged to differ from Dr Lee’s opinion that Mr Chandi is fit for full time suitable duties, saying “I feel this is an unreasonable position…”

Dr Argyle

Mr Chandi was assessed by Dr Argyle in his capacity as independent medical examiner. Dr Argyle is a psychiatrist. Dr Argyle provided a report dated 11 November 2022.
Dr Argyle reported that during the last year or more Mr Chandi’s mood has deteriorated in response to pain, his inability to work and his deteriorating finances. Dr Argyle said of Mr Chandi that he is much less active outside. Relevant to Mr Chandi’s capacity for work, Dr Argyle wrote:
“He is not able to return to work in his prior workplace primarily for physical reasons involving his shoulders… I agree that he is current unfit to work. Again, this is mainly due to his shoulder problems, so this is not my area of expertise.”

Dr Lee

Mr Chandi was assessed by Dr Lee in his capacity as independent medical examiner. Dr Lee is an occupational physician. Dr Lee provided a report dated 30 November 2022. Dr Lee noted Mr Chandi commenced a work trail in late 2021 undertaking domestic cleaning, working 20 hours each week. Dr Lee noted Mr Chandi slipped and fell in November 2021, hurting his left ankle. Dr Lee noted Mr Chandi had not returned to work since that time.
Dr Lee recorded Mr Chandi complained of pain in both shoulders and described him as wearing a sling on his right shoulder. Dr Lee also recorded complaint of constant pain in both ankles and described Mr Chandi as wearing a moon boot, sometime on his left foot and sometimes on his right foot. Dr Lee described Mr Chandi has having developed anxiety and depression and noted he had come under the care of both a psychiatrist and a psychologist. Dr Lee described Mr Chandi as disability and pain focused and described Mr Chandi as presenting with significant abnormal illness behaviours.
Dr Lee questioned the validity of Mr Chandi’s presentation in that he wrote:
“There were abnormal illness behaviour observed including significant inconsistencies between observed and formal measurements. It is my opinion that his efforts were suboptimal in nature”.
Relevant to causation of alleged injury to the neck and alleged consequential condition in the right shoulder, Dr Lee provided opinion without apparent explanation:
“His other diagnosis are cervical spine and soft tissue injury, right shoulder tissue injury and bilateral ankle soft tissue injuries that are not related to the alleged injury.”
Relevant to Mr Chandi’s capacity for work Dr Lee provided opinion:
“In my opinion, based on injuries sustained from the incident on 11 February 2019 involving his left shoulder only, he was not totally incapacitated. It is my opinion that he was capable of working full time with restrictions of minimal use of the left shoulder, avoid work above shoulder height, avoid extremes of reach with left shoulder and non-repetitive lifting of less than 5 -10 kilos.”

Submissions

Mr Malouf made oral submissions during the arbitration hearing on 24 April 2023. Mr Grimes subsequently provided written submissions to which Mr Malouf provided written submissions in reply. While I have not reproduced the parties’ submissions here, I have carefully considered the submissions and I am grateful to the assistance afforded me in this particular matter.

Determination

I am required to determine a number of matters. I am required to determine whether Mr Chandi sustained injury to his neck on 11 February 2019 in the course of his employment with Busways with his employment being a substantial contributing factor or main contributing factor to injury. I am required to determine whether Mr Chandi sustained a consequential condition in his right shoulder. I am also required to determine whether Mr Chandi suffers an incapacity for work resulting from injury sustained on 11 February 2019 in the course of his employment with Busways and has an entitlement to weekly compensation payable under s 38 of the 1987 Act from 13 August 2022 ongoing (with credit to Busways for weekly compensation already made to Mr Chandi during that period).
Mr Chandi has the onus of proving these matters and I am required to carefully consider the factual and medical evidence admitted in these proceedings. As submitted by Mr Grimes, in Nguyen v Cosmopolitan Homes (NSW) Limited[1], the court stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the actual existence of that fact.”
[1] [2008] NSWCA 246.
I consider it is also helpful to note that in Malec v JC Hotton Pty Limited[2] he court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the vent having occurred is greater than it no having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[2] (1990) 169 CLR 638.
Relevant to this issue of causation of the injury, consequential condition, and incapacity for work Mr Chandi alleges he has sustained, it must be remembered that in Kooragang v Cement Pty Ltd v Bates[3] the court said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the parties of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of a causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”

Injury to the neck
[3] (1994) 35 NSWLR 452.

As noted, I am required to determine whether Mr Chandi sustained injury to his neck on 11 February 2019 in the course of his employment with Busways with his employment being a substantial contributing factor to injury. Of significance in this matter is there is no contemporaneous mention of Mr Chandi sustaining injury to his neck on 11 February 2019 in the course of his employment with Busways.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment. It helpful to note relevant reference by Mr Grimes to North Coast Area Health Service v Felstead[4] and it is helpful to consider the meaning of personal injury as discussed by former Deputy President Roche in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[5]:
“The authorities establish that a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … it is ‘a sudden identifiable pathological change.”
[4] [2011] NSWWCCPD 51.
[5] [2014] NSWWCCPD 47.
In the circumstances of this particular matter s 9A of the 1987 Act relevantly provides that no compensation is payable under the 1987 Act in respect of an injury unless the employment was a substantial contributing factor to injury. As to whether employment was a substantial contributing factor to injury is a matter of impression and degree to be decided following careful consideration of the factual and medical evidence admitted in these proceedings (see Dayton v Coles Supermarkets Pty Ltd[6]; McMahon v Lagana[7] [2004] NSWCA 164).
[6] [2001]NSWCA 154.
[7] [2004] NSWCA 164.

Although in his initial statement dated 26 June 2019, which is the closest in time to the incident occurring on 11 February 2019, Mr Chandi made no mention of sustaining injury to his neck in the incident, in his subsequent statement dated 9 August 2022 Mr Chandi explained that while at the time he made his initial statement he suffered “constant pain in his left shoulder, neck and developing pain in his right shoulder” as he was only questioned about his left shoulder he restricted his statement to his left shoulder injury. In this subsequent statement Mr Chandi explained the pain he experienced in his left shoulder on 11 February 2019 in fact radiated through to his neck.
While it is true the notification of injury/illness form dated 14 February 2019 made no reference to Mr Chandi sustaining injury to his neck on 11 February 2019 and Dr Cheong recorded no reference to a complaint of neck pain by Mr Chandi until 29 May 2019, I am mindful that with Mr Chandi subsequently coming under the general medical care of Dr Sabir, Dr Sabir was sufficiently concerned about Mr Chandi’s neck pain that he referred him for an MRI cervical spine on 28 August 2019 with clinical details recorded in terms of “neck pain, worse on left side, Left sided radiculopathy? Nerve impingement”. Dr Sabir’s reference to Mr Chandi’s neck pain on 28 August 2019 is only a couple of months after Mr Chandi’s initial statement dated 26 June 2019 and I accept Mr Chandi’s explanation in his subsequent statement that he failed to mention sustaining injury to his neck on 11 February 2019 as he was only questioned at that time about his left shoulder injury.
Likewise, while the clinical records of Sydney West Physio under whose care Mr Changi initially came for treatment made no mention of Mr Chandi having sustained injury to his neck on 11 February 2019 and report full range of motion of the cervical spine on 6 March 2019 and 18 March 2019, Mr Semaan under whose care Mr Changi subsequently came for physiotherapy treatment reported that when Mr Chandi was initially assessed on 24 June 2019, while Mr Chandi’s main concern was his left shoulder pain, Mr Chandi relevantly complained of “cervical spine tightness”.
I am mindful too of Dr Singh’s recognition that the history and mechanism of injury sustained by Mr Chandi on 11 February 2019 “suggests a strain of the cervical spine in 2019, at the same time when he had a shoulder injury. It should be noted that the symptoms from a neck injury frequently overlap that of a shoulder injury.” Dr Singh is a specialist spinal surgeon with significant experience in treating cervical spine issues and I accept that in Mr Chandi’s case his neck symptoms may have overlapped those resulting from his left shoulder injury.
Dr Lee and Professor Courtney do not accept Mr Chandi sustained injury to his neck on 11 February 2019, whereas Dr Gehr accepted that he did. I prefer the opinion of Dr Gehr to that of Dr Lee because it is evident that at the time of assessment Dr Gehr had available to him the MRI cervical spine scan reports from 2019 and 2021 and the initial statement of Mr Chandi (in which Mr Chandi made no mention of having sustained injury to his neck on 11 February 2019) whereas it is not evident Dr Lee had these diagnostic imaging reports available to him at the time of assessment. I also prefer the opinion of Dr Gehr to that of Professor Courtney because while Professor Courtney provides opinion Mr Chandi did not suffer an injury to his neck on 11 February 2019, such opinion appears to me to be grounded in (a) a finding on examination that is inconsistent to Dr Gehr’s findings on examination and (b) his comment “He was sitting on a bus and I can understand that he may have had an injury to his left shoulder but there is absolutely no reason that he would have had a problems with his cervical spine and confirmed both in June and February 2022”, without acknowledgement Mr Chandi had told him that he suffered “a significant problem with his left arm and neck and shoulder area on 11 February 2019” and without reference to the diagnostic imaging findings available to him.
I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I am of the view Mr Chandi has provided a consistent and credible history of injury occurring on 11 February 2019 in the course of his employment with Busways, including injury to his neck. I accept Mr Chandi has discharged the onus of proof required of him and I am satisfied on the balance of probabilities Mr Chandi sustained injury to his neck on 11 February 2019 in the course of his employment with Busways, and that is employment with Busways is a substantial contributing factor to injury.

Consequential condition in the right shoulder

As noted, I am required to determine whether Mr Chandi sustained a consequential condition in his right shoulder. I am mindful of discussion in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[8] with confirmation that it is unnecessary for a worker alleging consequential condition that the condition is an “injury” within the meaning of s 4 of the 1987 Act the finding of a consequential condition does not require the identification of pathology. In discussing relevant authorities, including Moon v Conmah Limited[9] and Kumar v Royal Comfort Bedding[10], the Deputy President Snell said:
“… the above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury.”
[8] [2016] NSWWCCPD 23.
[9] [2009] NSWWCCPD 134.
[10] [2012]NSWWCCPD 8.
Although in his initial statement dated 26 June 2019, which is the closest in time to the incident occurring on 11 February 2019, Mr Chandi made no mention of right shoulder symptoms, as previously noted, in his subsequent statement dated 9 August 2022 Mr Chandi explained that while at the time he made his initial statement he suffered “constant pain in his left shoulder, neck and developing pain in his right shoulder” as he was only questioned about his left shoulder he restricted his statement to his left shoulder injury. In this subsequent statement Mr Chandi explained that despite surgical treatment, manipulation and injection, his left shoulder remained significantly problematic, and he had noticed that while focusing on his left shoulder treatment his right shoulder became symptomatic. Mr Chandi said that in late 2020 while undertaking basic tasks he relied heavily on his right shoulder because of the pain he suffered in his left shoulder. He said that ultimately the pain his right shoulder deteriorated to the point where he was struggling to complete basic tasks with either arm.
While there is no mention of complaint of right shoulder symptoms recorded by Dr Cheong, Mr Chandi’s subsequent general practitioner, Dr Sabir, recorded on 5 May 2021 that Mr Chandi was experiencing pain “in the right side”, which he attributed to “overcompensation with RHS.” Dr Cheong reported on 16 June 2022 that despite surgical treatment, Mr Chandi’s left shoulder had failed to improve and in response to specific questioning a few months later, Dr Cheong accepted Mr Chandi’s right shoulder had become symptomatic as a result of Mr Chandi favouring his left shoulder and overusing his right shoulder. While there is also no mention of complaint of right shoulder symptoms recorded by Sydney West Physio, in response to specific questioning, Mr Chandi’s subsequent physiotherapist, Mr Semaan, accepted Mr Chandi’s right shoulder had become symptomatic as a result of Mr Chandi favouring his left shoulder. Mr Semaan reported that because of his continuing left shoulder pain Mr Chandi had developed the habit of using his right shoulder for daily living tasks and Mr Chandi had in fact complained to him on a number of occasions about right shoulder pain. Mr Semaan said Mr Chandi had first reported right shoulder pain to him on 24 April 2020 and he had suggested Mr Chandi let Dr Sabir know if his right shoulder symptoms persisted, which Mr Chandi ultimately did.
Although at assessment Mr Chandi complained to Dr Lee about pain in his right shoulder and indeed presented wearing a sling on his right shoulder, while Dr Lee provided diagnosis of “right shoulder tissue injury” he did not accept Mr Chandi suffered a consequential condition in his right shoulder. Likewise Professor Courtney did not accept Mr Chandi suffered a consequential condition in his right shoulder in that he noted Mr Chandi was right hand dominant and he said he “would not accept that he was favouring the right arm after it was the dominant arm.” Furthermore, despite the pathology demonstrated on diagnostic imaging, Professor Courtney described Mr Chandi as having a full range of shoulder movement on examination on two occasions and said, “I did not see anything abnormal when I examined him” which is inconsistent with the findings of Dr Gehr on his clinical examination of Mr Chandi’s right shoulder.
Dr Gehr accepted Mr Chandi has suffered a consequential condition in his right shoulder and I prefer the opinion of Dr Gehr to those of Dr Lee and Professor Courtney, particularly noting that Dr Gehr’s opinion is supported by Mr Chandi’s treating general practitioner and treating physiotherapist, both of whom have had the opportunity to review Mr Chandi on a number of occasions since he sustained injury on 11 February 2019 in the course of his employment with Busways. At the time of initial assessment Dr Gehr noted Mr Chandi had sustained injury on 11 February 2019 and despite coming to left shoulder arthroscopy, manipulation and steroid injections, some two and a half years later Mr Chandi’s left shoulder pain persisted. Dr Gehr reported a history of Mr Chandi’s right shoulder becoming symptomatic following his left shoulder surgery and on examination of his right shoulder Dr Gehr noted Mr Chandi suffered a decreased range of motion with clinical picture of impingement.
I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I am of the view Mr Chandi has provided a consistent and credible history of injury occurring on 11 February 2019 in the course of his employment with Busways, including the development of a consequential condition in his right shoulder. I accept Mr Chandi has discharged the onus of proof required of him and I am satisfied on the balance of probabilities Mr Chandi has suffered a consequential condition in his right shoulder following injury sustained on 11 February 2019 in the course of his employment with Busways.

Current capacity for work

As noted, I am required to determine whether Mr Chandi suffers an incapacity for work resulting from injury sustained on 11 February 2019 in the course of his employment with Busways and has an entitlement to weekly compensation payable under s 38 of the 1987 Act from 13 August 2022 ongoing (with credit to Busways for weekly compensation already made to Mr Chandi during that period).
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
As noted by Mr Grimes, given that Mr Chandi has not been assessed as a worker “with high needs” and given that Mr Chandi is not working, s 38 of the 1987 Act relevantly provides:
(a) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(b) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitlement to compensation after the second entitlement period.
Section 38 of the 1987 Act requires consideration as to whether an injured worker has “no current work capacity” or “current work capacity” as defined by Schedule 3 of the 1987 Act.
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
the worker’s place or resident.”
In his statement dated 24 November 2022 Mr Chandi confirmed his weekly payments ceased “as at 26 October 2022” and it is evident from Mr Chandi’s evidentiary statements dated 24 November 2022 and 17 March 2023 that Mr Chandi continues to suffer pain and restriction resulting from injury sustained on 11 February 2019 in the course of his employment with Busways. In his most recent statement, Mr Chandi explained he remains reliant on pain relief medication and expressed belief he did not have capacity to return to work.
In his report dated 16 June 2022 Dr Sabir described Mr Chandi as not being able to return to his pre-injury duties despite coming to surgical treatment of his left shoulder and in his most recent Certificate of Capacity dated 21 February 2023, Dr Sabir certified Mr Chandi as having no current capacity for work. In his supplementary report dated 15 September 2022 Dr Gehr, who had the opportunity to orthopaedically assess Mr Chandi on 2 November 2021, provided opinion following review further information, including certification by Dr Sabir as to Mr Chandi’s fitness for work, that Mr Chandi had had no capacity for work since 13 August 2022, being opinion he maintained in his report dated 18 March 2023 following review of Dr Lee’s opinion that Mr Chandi was “capable of working full-time with restrictions of minimal use of the left shoulder.” While in his initial report dated 28 June 2021 Professor Courtney expressed opinion “I think he will get back to full driving in the longer term”, Professor Courtney provided no opinion in his report dated 22 February 2022 as to Mr Chandi’s capacity for work following his orthopaedic re-assessment of Mr Chandi on 4 February 2022.
Although Dr Lee is an occupational physician, his opinion as to Mr Chandi’s capacity for work is grounded in opinion that the only injury Mr Chandi sustained on 11 February 2019 is an injury to his left shoulder, whereas I have determined Mr Chandi also sustained injury to his neck on 11 February 2019 and has sustained consequential condition in his right shoulder. In such circumstances I prefer the opinion of Dr Gehr (who accepted Mr Chandi sustained injury to his neck on 11 February 2019 and has sustained consequential condition in his right shoulder) to that of Dr Lee, particularly so in circumstances where Dr Sabir has also provided opinion Mr Chandi has had no current capacity for work since 13 August 2022.
In Marcos v Deosa Enterprises Pty Ltd[11] Acting Deputy President Parker remitted Mr Marcos’ claim for weekly compensation back to Arbitrator Isaksen (as he was then known) to determine whether the Mr Marcos was likely to continue indefinitely to have no current work capacity, being the requirement of s 38(2) of the 1987 Act. Contrary to submission by Mr Grimes, the Acting Deputy President did not find “there would seem no reason why the application of the words ‘likely to continue indefinitely’ in s 38(2) of the 1987 Act should not be given their ordinary meaning. In my view, those words require the applicant to establish that he is likely to continue to have no current work capacity for an unknown or indeterminate period into the future” but rather this was the comment of Arbitrator Isaksen on remittal following consideration of comment by Arbitrator Harris (as he was then known) in Roberts v University of Sydney[12] relevant to the same term as it applies to s 38(3)(c) of the 1987 Act and President Keating’s consideration of the definition of “dispute” in NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd[13], being comment I am certainly in agreement with.
[11] [2020] NSWWCCPD 73.
[12] [2020] NSWWCC 25.
[13] [2016] NSWWCCPD 54.
I am of the view it is only necessary for Mr Chandi to establish that for an unknown or indeterminate time into the future he will have no current work capacity to enable entitlement to weekly benefits payable under s 38(2) of the 1987 Act, and both Dr Sabir and Dr Gehr have provided opinion Mr Chandi has had no capacity for work since 13 August 2022.
I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I accept Mr Chandi has discharged the onus of proof required of him and on the balance of probability I am satisfied Mr Chandi is likely to continue indefinitely to have no current work capacity resulting from injury sustained on 11 February 2019 in the course of his employment with Busways.

Quantification of entitlement to weekly compensation

Mr Chandi’s PIAWE is agreed at $1,320. I have determined Mr Chandi has had no current work capacity since 13 August 2022 resulting from injury he sustained on 11 February 2019 and is likely to continue to indefinitely to have no current work capacity resulting from that injury as prescribed by s 38(2) of the 1987 Act. Mr Chandi has entitlement to weekly compensation payable under s 38(2) of the 1987 Act from 13 August 2022 to date and continuing in accordance with the 1987 Act at the rate of $1,056 per week (subject to indexation) with credit to Busways for weekly compensation already paid to Mr Chandi during that period.

SUMMARY

It is not disputed Mr Chandi sustained injury to his left shoulder on 11 February 2019 in the course of his employment with Busways.
I have determined Mr Chandi also sustained injury to his neck on 11 February 2019 in the course of his employment with Busways and his employment was a substantial contributing factor to injury. I have determined Mr Chandi suffered consequential condition in his right shoulder.
I have determined Mr Chandi has had no current capacity for work since 13 August 2022 resulting from injury sustained on 11 February 2019 in the course of his employment with Busways and is likely to continue to indefinitely to have no current work capacity resulting from that injury. Mr Chandi’s PIAWE is agreed at $1,320. Mr Chandi has entitlement to weekly compensation payable under s 38(2) of the 1987 Act from 13 August 2022 to date and continuing in accordance with the 1987 Act at the rate of $1,056 per week (subject to indexation) with credit to Busways for weekly compensation already paid to Mr Chandi during that period.

[2023] NSWPIC 417

16 August 2023