Coote v Designbuild NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Coote v Designbuild NSW Pty Ltd [2024] NSWPIC 235
APPLICANT:	James Coote
RESPONDENT:	Designbuild NSW Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	7 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66; accepted injury to right biceps tendon on 19 October 2019 and consequential right wrist condition; disputed injury to right shoulder; Kooragang Cement Pty Ltd v Bates referred to; Held – that the applicant sustained an injury to his right shoulder on 19 October 2019 as alleged.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his right upper extremity (shoulder) on 19 October 2019. The Commission orders: 2. I remit this matter 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 October 2019 (b) Body parts: right upper extremity (wrist, elbow and shoulder) and scarring (TEMSKI) (c) Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents, and (b) The respondent’s Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

James Coote (the applicant) is a 32-year-old carpenter and sole director of Designbuild NSW Pty Ltd (the respondent) which he set up in 2015 with his father John Coote, a licensed builder.
The applicant alleges that he sustained injuries to his right wrist, elbow and shoulder on 19 October 2019 while loading 20kg bags of cement on to a vehicle with another worker.
The respondent accepted liability for spontaneous rupture of flexor tendon.
On 17 July 2023 the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in which he relied upon impairments assessed by Dr Brian Stephenson to his right upper extremity (wrist, elbow and shoulder).
The respondent issued a notice on 13 October 2023 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 denying liability for lump sum compensation in respect of the applicant’s right shoulder injury or condition.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission), the applicant seeks to have the Commission determine the dispute.
The dispute came before the Commission for a preliminary conference on 3 April 2024 and the respondent confirmed it does not dispute that the applicant sustained injuries to his right elbow and right wrist. The respondent disputes however that the applicant sustained injury to his right shoulder.
The dispute was listed for conciliation/arbitration with liability for the applicant’s right shoulder injury the only issue in dispute.

ISSUE FOR DETERMINATION

The parties agree that the issue that remains in dispute is whether the applicant sustained a right upper extremity (shoulder) injury on 19 October 2019.
The applicant submits that if that issue is determined in his favour the claim for permanent impairment compensation should be remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment of the right upper extremity (wrist, elbow and shoulder).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

A conciliation conference was held before the Commission on 23 April 2024. The applicant was present represented by Mr Luke Morgan of counsel instructed by Mr Driscoll. Mr Fraser Doak of counsel appeared for the respondent instructed by Mr Schum. Mr Tamiolm from the respondent’s insurer was also present. As a resolution of the dispute was not possible the dispute proceeded to an arbitration hearing before me.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was granted leave under Division 4.2 of the Personal Injury Commission Rules 2021 to amend the ARD to include the final words “with consequential condition affecting the right wrist” in the injury description.

EVIDENCE

Documentary evidence

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

Oral evidence

Neither party sought to adduce oral evidence.

Applicant’s evidence

The applicant’s evidence is set out in a signed statement dated 6 February 2023 and a supplementary signed statement dated 5 March 2024.[1]
[1] Pages 1 and 3 of the ARD.
In his statement of 6 February 2023 the applicant describes the injury to his right arm that occurred on 19 October 2019 while lifting 20kg bags of concrete mix. He attended at the Gosford Hospital the next day where scans were performed of his right arm and shoulder.
He states that surgery to repair the biceps tendon was subsequently performed by Dr Markham. The surgery was unsuccessful. The applicant sought a second opinion from Dr Bokor who performed an operation on his arm about one year later.
The applicant says “I am still greatly restricted in the range of motion that I have with my right arm as a result of the accident and I cannot lift any heavy objects”.[2]
[2] Page 2 of the ARD.
In his supplementary statement of 5 March 2024 the applicant sought to give context to his shoulder injury and the symptoms he was experiencing throughout his bicep tendon treatment.
The applicant describes attending the Emergency Department at Gosford Hospital on 20 October 2019 and states “I told them that the pain was running through the front of my elbow, upper arm and shoulder.”[3]
[3] Page 3 of the ARD.
He says “[t]he practitioners at the hospital told me that I had torn my biceps tendon, and that the pain in my shoulder was caused by the severe injury to my bicep”’.[4]
[4] Page 3 of the ARD.
The applicant describes remaining in a sling after attending Gosford Hospital up until the first surgery on his arm which took place on 28 October 2019. He describes that following surgery his right arm was in a sling for about three to four months and that he was given Endone and Panadeine-4 to help cope with the pain.
He then says “[f]or around 8-9 months following the surgery, my arm and shoulder felt unstable and painful. I wasn’t fully aware of how bad the pain and instability was until I stopped having the Endone”.[5]
[5] Page 3 of the ARD.
The applicant describes revision surgery on his elbow carried out by Dr Bokor in late September 2020, following which he says: “my bicep and shoulder felt tight – like there was constant tension running through them even while resting”.[6]
[6] Page 3 of the ARD.
The applicant says he attended regular physiotherapy sessions which helped to bring back some strength and relieve some of the tension in his arm and shoulder.
Regarding his current condition, the applicant describes the pain in his shoulder and arm while his arm is resting as sitting at 5 to 6 out of 10, and he says: “I feel a lot of pain in the front of my shoulder and down my bicep when I raise my arm at all”.[7]
[7] Page 4 of the ARD.
He states “[m]y right arm feels as though it has wasted away a bit through my bicep and up to the front of my shoulder. I am very conscious of it whenever I am using my right arm”.[8]
[8] Page 4 of the ARD.
The Discharge Referral Notes of the Gosford Hospital dated 20 October 2019 state: “James COOTE presented to this facility with Pain, limb upper / shoulder”.[9] The principal diagnosis is “Bicep rupture” and the notes include the observation “Difficult examination due to pain/tenderness”.[10]
[9] Page 5 of the ARD.
[10] Pages 6 and 7 of the ARD.
In his report of 25 October 2019 Dr Markham, orthopaedic surgeon, describes the almost complete tear of the applicant’s right distal bicep tendon and says that surgery should be done on an urgent basis.[11]
[11] Page 13 of the ARD.
Dr Markham in his report of 28 April 2020 describes the applicant as having made excellent progress and signed him back to return to full pre-injury duties.[12]
[12] Page 14 of the ARD.
Dr Stuart’s MRI right shoulder report of 1 July 2020 notes “[the] distal biceps tendon proximal to the bony canal appears markedly swollen with what would appear to be a high grade tear with only a few intact fibres confidently identified.”[13]
[13] Page 15 of the ARD.
Dr Marchalleck, orthopaedic surgeon, noted in his report of 7 July 2020 that the applicant was very tender along the biceps tendon, the MRI showed he still had a fair bit of inflammation around the distal biceps and it looked like the tendon had retracted slightly. He suspected the tendon would need to be re-debrided and reinserted into bone.[14]
[14] Page 16 of the ARD.
Dr Bokor, shoulder and elbow surgeon, in his report of 13 July 2020 noted a painful right distal bicep and “quite a significant length of tendon that is diseased. As well as that there seems to be some impairment and its attachment point”.[15] He was concerned that to reoperate involved an increased risk of loss of motion because to reoperate would require excision of the diseased fragment of tendon.
[15] Page 18 of the ARD.
Dr Bokor’s report of 20 July 2020 describes the repeat surgery as meaning the applicant may lose a little bit more of his supination and his ability to fully straighten his arm, so that he needed to be cognisant of that degree of potential restriction after surgery. The proposed surgery would involve re-exploration and excision of the degenerate area, reimplantation the tendon, with the applicant being placed in a plaster back slab for two weeks and a hinged brace with limited movement for about four weeks.[16]
[16] Page 20 of the ARD.
There are reports from Dr Bokor dated 28 September 2020, 2 November 2020 and 22 January 2021 attached to the ARD at pages 21 to 23 regarding post-surgery progress.
Dr Kuah, sport & exercise physician, in his report to Dr Bokor of 13 July 2020 describes “a likely recurrence of a distal biceps tear on the right elbow which is a partial high grade in severity”,[17] with the possibility that the applicant will require revision surgery dealing with repair of a somewhat degenerate tendon.
[17] Page 24 of the ARD.
Dr Sanharwal’s MRI right elbow report of 12 May 2021 describes post distal biceps repair with grossly intact repair.[18]
[18] Page 26 of the ARD.
A report has been obtained by the applicant from Dr Brian Stephenson, orthopaedic surgeon, dated 6 July 2023 (found at page 27 of the ARD).
The diagnosis made by Dr Stephenson “is that of surgical revision repair of rupture of distal biceps tendon of elbow with sensory loss and restriction in range of motion through large joints of the right upper extremity following.”[19]
[19] Page 33 of the ARD.
The connection between this condition and the accident Dr Stephenson describes as “a direct causal connection.”[20]
[20] Page 33 of the ARD.
Dr Stephenson found a “major restriction range of motion in AMA5, Chapter 16, right shoulder”[21] and assessed the values for upper extremity impairment of the three large joints from wrist to shoulder. He assessed 14% upper extremity impairment of the right shoulder. That assessment combined with his assessment of the right wrist and right elbow converted to 16% whole person impairment.[22]
[21] Page 31 of the ARD.
[22] Page 32 of the ARD.

Respondent’s evidence

Attached to the Reply at page 1 is the report of Dr Kafataris, injury management consultant, dated 30 July 2021. Dr Kafataris describes the mechanism of injury as tear of the right biceps.
His report includes an examination of the right elbow, right shoulder, right wrist and cervical spine, each of which he found to be normal at that time, aside from finding tenderness over the biceps tendon insertion.[23] The applicant complained of constant pain over the cubital fossa and biceps insertion, some non-specific pain over the olecranon and numbness in the radius part of the right forearm.
[23] Page 2 of the Reply.
Dr Perla, injury management consultant, in his file review of 21 September 2022 (found at page 5 of the Reply) concluded that the applicant is fit for his normal pre-injury hours with three Vocational Options agreed to by Dr Fatima, nominated treating doctor, as long as the applicant avoided heavy lifting at that time.
The Reply at page 8 attaches the report of Dr Diebold, orthopaedic surgeon qualified by the respondent, dated 28 August 2023.
Dr Diebold records the applicant’s description of his present symptoms as “a constant ache in the right cubital fossa, which disturbs sleep. This is significantly worsened with movement or use of the right upper limb. The right upper limb also feels weak, with decreased grip strength.”[24]
[24] Page 10 of the Reply.
Dr Diebold assessed the right arm, right wrist and right shoulder. Regarding the applicant’s right shoulder Dr Diebold found no tenderness, a full range of motion and no symptoms or clinical abnormality.
Dr Diebold states “I can find no evidence of any injury to the right shoulder related to the employment of 19 October 2019”.[25] He finds no evidence of an injury at any time to the applicant’s right shoulder, nor evidence of any condition affecting the right shoulder.
[25] Page 17 of the Reply.
The assessment made by Dr Diebold is of 4% upper extremity impairment of the right elbow, 4% for the right wrist and 5% for lateral antebrachial nerve, which converts to 7% whole person impairment with 1% added for scarring to total 8% whole person impairment.[26]
[26] Pages 20 and 21 of the Reply.
Much of the evidence attached to the Reply then relates to the applicant’s accepted right biceps tendon injury and treatment included in the documents attached to the ARD which are summarised above.
The Reply in addition attaches at pages 46 to 85:
(a)    an Initial Workplace Assessment Report dated 21 November 2019, with Comprehensive Progress Reports dated 14 April 2020, 25 May 2020 and 22 June 2020, and Exercise Rehabilitation Reports dated 18 May 2020 and 4 June 2020. These reports appear to be mainly concerned with returning the applicant to pre-injury duties as a carpenter;
(b)    a Vocational Assessment Report of 1 June 2022 concerned with identifying suitable alternative vocational options for the applicant;
(c)    Dr Markham’s certificate of capacity of 16 December 2019 that diagnoses right distal biceps tendon rupture, Dr Davidson’s certificate of capacity of 6 June 2020 that diagnoses rupture of right biceps tendon, and Dr Fatima’s certificates of capacity dated 9 March 2022, 21 September 2022 and 30 November 2022 each including a diagnosis of rupture of right biceps tendon – post op recovery, and
(d)    the insurer’s list of payments.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The applicant submits that there is no dispute that as a result of a workplace accident the applicant tore his right bicep tendon which attaches the right elbow and right shoulder. The best analysis and assessment of the damage that occurred from the rupture of the applicant’s right bicep tendon is made by Dr Stephenson.
Dr Stephenson diagnoses “surgical revision repair of rupture of distal biceps tendon of elbow with sensory loss and restriction in range of motion through large joints of the right upper extremity following”,[27]
[27] Page 33 of the ARD.
Based on Dr Stephenson’s opinion the applicant submits the rupture of the bicep tendon led to functional consequences to the elbow and shoulder.
The applicant observes that the bicep tendon connects the elbow and shoulder and controls the functioning of the right upper extremity by interaction between them. Absent the bicep tendon the operation of both large joints does not work. This resulted in Dr Stephenson’s assessment of whole person impairment including an assessment of impairment of the right shoulder.
Reference was made to the statements of the applicant in which the presentation of injury, what he felt at the time, and the course of treatment is described. His presentation to the Gosford Hospital Emergency Department at the time of the injury is confirmed in the Discharge Referral Notes where it is noted the applicant complained of “pain upper limb / shoulder”.[28]
[28] Page 5 of the ARD.
The real dispute to be determined, the applicant submits, is the approaches taken by Dr Stephenson and by Dr Diebold to the assessment of impairment.
The applicant refers to the course of treatment described by Dr Stephenson and observed that the portion of the tendon muscle complex running from the elbow to the shoulder from which Dr Bokor removed 2cm must even to a layman beg the question of what such a significant shortening of the tendon muscle complex must have on both the major joints of the right upper extremity.
Dr Stephenson noted Dr Bokor’s concern that to reoperate brought an increased risk of loss of motion because it would require the excision of the diseased fragment of tendon.[29]
[29] Page 29 of the ARD.
Dr Stephenson describes the consequences that flowed and assessed the whole person impairment of the three large joints of the right upper extremity as a result of the rupture of the biceps tendon.
In relation to Dr Diebold’s report, the applicant submits that the doctor confirms the removal of 2cm of the tendon by shoulder surgeon Dr Bokor, however Dr Diebold found full range of motion of the right shoulder in the assessment process.
Dr Diebold in the applicant’s submission does not address the functional consequence occasioned by the tendon injury on the right shoulder but rather says there is no impairment, finding no symptoms or clinical abnormality.
In answer to the question regarding causation of the right shoulder the doctor says: “I can find no evidence of any injury to the right shoulder related to the employment of 19 October 2019”.[30] The doctor did not say there was no injury to the right shoulder but rather he could find no evidence of it, consistent with his assessment that there is no restriction of the right shoulder.
[30] Page 17 of the Reply.

Dr Diebold at page 22 of the Reply says “Dr Stephenson has provided a thorough and comprehensive report, Our reports differed in some areas: a. Dr Stephenson found evidence of restricted movement in the right shoulder, which I was unable to identify…”
The applicant’s submission is that Dr Diebold does not find there is no right shoulder injury but that he could find no evidence of impairment. This is a critical distinction and particularly relevant in considering the reports of Dr Stephenson and Dr Diebold.
The applicant submits that it is a matter for the Medical Assessor to make an assessment of the permanent impairment of the right upper extremity including the elbow, shoulder and wrist resulting from the rupture of the biceps tendon, which is not in dispute.

Respondent’s submissions

The respondent’s submissions have also been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The respondent submits that there is a lack of evidence of injury to the applicant’s right shoulder. There is a single reference to symptoms in the right shoulder at the Gosford Hospital in 2019, and the basis of that it is not clear or identified.
There is no further reference to injury to the right shoulder in the hospital records, nor of complaints made to the treating general practitioner following 19 October 2019, or to specialists Dr Markham, Dr Marchalleck, in the series of Dr Bokor‘s reports from 13 July 2020 or by Dr Kuah. Not once does the applicant provide a history of injury to the right shoulder and at no stage does the applicant receive treatment for his right shoulder.

The respondent’s submission is that the applicant’s case largely relies on what is effectively a case of medical conjecture that there is a connection between the biceps tendon injury and the right shoulder and this ought to be rejected outright.
The respondent describes the report of Dr Stephenson as the high-water mark of the applicant’s evidence.
Dr Stephenson sets out the history of the injury and of treatment focused on the right elbow and the respondent notes there is no reference to right shoulder injury or symptoms. It is only when Dr Stephenson comes to a physical examination that a diagnosis is made including the shoulder.
The respondent criticises Dr Stephenson’s report for failing to identify any mechanism of injury to the right shoulder.
Dr Diebold in contrast, the respondent submits, has approached the assessment of the applicant’s injuries in a conventional and orthodox way by identifying the history of the injury, the applicant’s presentation to hospital the following day, the assessments of Dr Markham and Dr Marchalleck that include no history of injury to the right shoulder, and the absence during the subsequent treatment by Dr Bokor of reference to symptoms of the right shoulder.
The respondent notes Dr Diebold refers to the applicant’s present symptoms as a constant ache in the right cubital fossa and the doctor says “[t]he right upper limb also feels weak, with decreased grip strength.”[31] The respondent views this as consistent with the doctor’s assessment of the consequential injury and limitation to the right wrist and his description of numbness over the lateral forearm from elbow to wrist.[32]
[31] Page 10 of the Reply.
[32] Page 11 of the Reply.
The respondent refers to the marked contrast between the range of movement of the right shoulder assessed by Dr Stephenson and by Dr Diebold and submits that the applicant’s case is that Dr Stephenson found some restriction so therefore there has been an injury. Looking at the issue in reverse in this way cannot be accepted.
Dr Diebold diagnoses a right elbow injury as a result of rupture of right distal biceps tendon, injury to lateral cutaneous nerve of forearm and mild stiffness of the right wrist but no symptoms or clinical abnormality of the right shoulder.[33]
[33] Page 12 of the Reply.
Regarding the right shoulder, Dr Diebold found no evidence of any injury related to the employment of 19 October 2019.[34] The respondent submits Dr Diebold is the only doctor who considers and directly addresses this question.
[34] Page 17 of the Reply.
The respondent says that this conclusion is supported by the treating specialist’s reports which contain no history of right shoulder injury. The respondent submits that the context of the applicant’s statement must necessarily be influenced by the claim for compensation and is without corroboration.

Applicant’s submissions in reply

The applicant’s brief submissions in reply have also been recorded and form part of the Commission’s records.
The applicant notes the nature of the injury to the biceps tendon and that treatment involved the shortening of the tendon. Dr Stephenson is of the view that this injury has resulted in injury to the elbow and shoulder to the extent there is impaired function of both.
The applicant submits that ultimately it is a matter for the Medical Assessor to assess the consequences of the ruptured bicep tendon injury and the Medical Assessor should not be constrained in that assessment process by exclusion of the right shoulder.

FINDINGS AND REASONS

Did the applicant sustain a right upper extremity (shoulder) injury on 19 October 2019

The applicant alleges he sustained an injury to his right shoulder on 19 October 2019.
The respondent accepts liability for the rupture of the applicant’s right distal biceps tendon and agrees the applicant has sustained injury his right elbow and a consequential condition affecting his right wrist. The respondent disputes that the applicant sustained an injury to his right shoulder at the same time.
The applicant has the onus of establishing on the balance of probabilities that he sustained an injury to the right shoulder on 19 October 2019. Section 4(a) of the 1987 Act defines injury as “personal injury arising out of or in the course of employment”.
I am of the view that the applicant did sustain injury to his right shoulder as well as to his right elbow and right wrist arising out of or in the course of his employment with the respondent on 19 October 2019 for the reasons that follow.
To establish that the applicant sustained a right shoulder injury 19 October 2019, a sudden and ascertainable or dramatic physiological change or disturbance of the applicant’s normal physiological state needs to be established; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45, and Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47.
It is the applicant’s evidence that on 19 October 2019 he “felt a sharp extreme in my arm [sic]”.[35] It is his evidence that he attended at the Emergency Department of Gosford Hospital the next day as the pain had barely subsided. He told hospital staff the pain was running through the front of his elbow, upper arm and shoulder. The applicant’s evidence is that practitioners at the hospital told him he had torn his biceps tendon and the pain in his shoulder was caused by the severe injury to his bicep.
[35] Page 3 of the ARD.
I note the applicant’s statement dated 6 February 2023, in which he refers to being treated at Gosford Hospital with scans performed of his arm and shoulder, appears to have been prepared in relation to an earlier and separate work capacity dispute.
The Gosford Hospital Discharge Referral Notes dated 20 October 2019 confirm the applicant presented with “[p]ain, limb upper / shoulder” and recorded “right clinical distal biceps rupture”.[36]
[36] Pages 5 and 7 of the ARD.
Dr Stephenson’s opinion that the applicant sustained a right shoulder injury on 19 October 2019 is consistent with the applicant’s evidence and supported by the Gosford Hospital Discharge Referral Notes.
The respondent submits that the lack of any recorded complaint in respect of the right shoulder in the treatment records after attending Gosford Hospital does not support that the applicant sustained injury to his right shoulder as alleged. The respondent submits that there is no reference to right shoulder injury or symptoms until Dr Stephenson physically examined the applicant.
I note in general that caution ought to be exercised in placing reliance on treating medical records; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and Mason v Demasi [2009] NSWCA 227.
Following the injury the focus of the applicant’s treatment was on repair of the almost complete tear of the tendon, first by unsuccessful surgery carried out by Dr Markham on 28 October 2019 and then by revision surgery carried out by Dr Bokor in September 2020.
The applicant’s evidence is that he was placed in a sling after the first surgery for about three to four months and was not fully aware of how bad the pain and instability was in his arm and shoulder until he stopped having Endone at some time following.[37] After seeking a second opinion revision surgery was carried out the following year.
[37] Page 3 of the ARD.
The rupture of the distal biceps tendon and its repair involving consultation with three specialists over an extended period of time appears from the evidence before the Commission to have been the most significant issue with which the applicant was concerned, and its treatment the focus of his treating medical practitioners.
Dr Kafataris, injury management consultant, provided a report to the insurer on 30 July 2021 that included an examination of the range of motion of the applicant’s right shoulder as well as of his right elbow, right wrist and cervical spine.[38]
[38] Page 2 of the Reply.
Dr Stephenson then examined the applicant in July 2023 for the purpose of making his s 66 claim. The doctor found a major restriction in range of motion in the right shoulder. Dr Stephenson describes restriction in range of motion through large joints of the right upper extremity following the surgical revision repair of the rupture of biceps tendon of elbow, with a direct causal connection to the accident.[39]
[39] Pages 32 and 33 of the ARD.
The respondent is critical of Dr Stephenson’s report for not describing the mechanism of injury to the right shoulder. The respondent submits that the applicant’s case largely relies on what is effectively medical conjecture that there is a connection between the biceps tendon injury and the right shoulder, and this ought to be rejected.
By describing the restriction of motion of the right shoulder as following the rupture of the biceps tendon, in my view the doctor has sufficiently identified the facts and reasoning process in justification of his opinion; Australian Security and Investments Commission v Rich [2005] NSWCA 152.
Turning to Dr Diebold’s report I agree with the submission made by the respondent that the doctor carried out his examination in a conventional way.
Dr Diebold in contrast to Dr Stephenson however found no symptoms or clinical abnormality of the right shoulder, and no evidence of an injury at any time to the right shoulder.
Dr Diebold’s findings contrast with the evidence of the applicant that he felt immediate pain in his arm, reported that the pain was running through the front of the elbow, upper arm and shoulder on 20 October 2019 to hospital staff, that following the first surgery his bicep and shoulder felt tight like there was constant tension running through them even while resting, and that he feels a lot of pain in the front of his shoulder and down his bicep when he raises his arm at all.[40]
[40] Pages 3 and 4 of the ARD.
I prefer the opinion of Dr Stephenson who determined that the restriction in range of motion of the right shoulder, as well as of the right elbow and wrist, flows from the rupture of the biceps tendon.
I note there is no evidence of a pre-existing right shoulder condition, [41]or of any later shoulder injury which may have broken the chain of causation. There is no evidence before the Commission of an alternative cause of the shoulder symptoms described by the applicant, reported to hospital staff and assessed by Dr Stephenson.
[41] Page 32 of the ARD.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; (1994) 10 NSWCCR 796.
On the basis of the evidence before the Commission I find on the balance of probabilities that the applicant sustained a right upper extremity (shoulder) injury on 19 October 2019.

SUMMARY

I find that the applicant sustained an injury to his right shoulder on 19 October 2019.
The applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the 19 October 2019 injury will now be remitted to the President for referral to a Medical Assessor in order for that Medical Assessor to assess the level of the applicant’s whole person impairment in relation to his right upper extremity (wrist, elbow and shoulder) and scarring (TEMSKI).

[2024] NSWPIC 235

7 May 2024