Duarte v IOOF Service Co Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Duarte v IOOF Service Co Pty Ltd [2024] NSWPIC 723
APPLICANT:	Charmaine Duarte
RESPONDENT:	IOOF Service Co Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	31 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for reasonably necessary treatment expenses for the applicant’s left shoulder; applicant suffered serious fracture to her left ankle in a fall on 5 April 2022; whether she also injured her left shoulder in that fall and/or in a consequential fall on 28 April 2022; absence of any contemporaneous evidence of injury to the left shoulder; no evidence in hospital records over several weeks or in treating doctor’s records; first evidence of injury appeared in worker’s Doctor’s report in March 2024; Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in the claim for reasonably necessary treatment expenses as a result of injury to the applicant’s left shoulder on 5 April 2022 and/or 28 April 2022.

STATEMENT OF REASONS

BACKGROUND

The applicant, Charmaine Duarte, was working from home on 5 April 2022, the day after she had had a COVID-19 vaccination. She became unwell and fell, fracturing her left ankle. She was taken by ambulance to St Vincent's Hospital where she underwent surgery.
Ms Duarte underwent further surgery on 11 April 2022 when metal plates and screws were inserted into her left ankle. She remained in hospital until 4 May 2022 when she was moved to Elizabeth Bay Lodge for respite care. She was there until 3 June 2022 when she was transferred to another hospital for rehabilitation. She was discharged to home in August 2022.
The respondent, IOOF Service Co Pty Ltd, accepted liability for injury to Ms Duarte’s left ankle.
On 28 April 2022, while still in St Vincent's Hospital, Ms Duarte fell off the knee scooter that she was using for rehabilitation and on to her left side. She claims compensation for the cost of treatment for her left shoulder which she says she injured in the fall.
The respondent disputes Ms Duarte’s claim that she injured her left shoulder in the fall on 28 April 2022.

ISSUES FOR DETERMINATION

When these proceedings commenced, Ms Duarte claimed compensation for a consequential condition in her right hip as a result of the fall at home on 5 April 2022. She discontinued that claim at the conciliation conference and arbitration hearing on 18 November 2024.
The parties agree that the issue remaining in dispute is whether Ms Duarte suffered injury to her left shoulder in the fall from the knee scooter on 28 April 2022 and whether she is entitled to the cost of medical treatment for that injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing on 18 November 2024. Ms Duarte was represented by Mr Necovski of counsel, instructed by Mr O’Malley. The respondent was represented by Mr Stiles of counsel, instructed by Ms Prichard. They were unable to reach agreement and the matter proceeded to a hearing.
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 them to a settlement acceptable to all of them. I am satisfied that they have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attachments.

Oral evidence

There was no oral evidence.

Ms Duarte’s evidence

Ms Duarte provided statements of evidence dated 21 June 2022,[1] 13 October 2022[2] and 19 September 2024.[3]
[1] ARD page 6.
[2] ARD page 3.
[3] ARD page 1.
In her first statement, Ms Duarte describes how she felt unwell on the morning of five April 2022. While in the bathroom, she felt faint undecided to go back to bed. At the doorway of the bathroom, she “felt like a total blackout". She cannot remember exactly what happened, or how, but the next thing was that she woke up in the hallway just outside the bathroom door. She noticed her left leg was very painful and her foot “was literally at a right angle to my leg and it was very painful.” She describes how she managed to get to the phone and call a friend. He arrived a short time later and called an ambulance. The pain in her left ankle was very bad and she was given painkilling gas.
Ms Duarte describes undergoing surgery on her left ankle on 5 April 2022 and 11 April 2022, and her subsequent rehabilitation. She refers to the knee scooter but not to the fall on 28 April 2022 or to her left shoulder.
The second statement concerns the COVID-19 vaccination and the respondent’s return to work policy, and is not relevant here.
In her third statement, relevant to the claim of injury to her left shoulder Ms Duarte states:
“8. At the time of the fall [on 5 April 2022] I fell hard onto my left shoulder and did not notice pain caused from the fall in my shoulder until the severe pain from my ankle was alleviated.
…
10. About 3 weeks after my surgery on 28 April 2022 while still in inpatient at Saint Vincent's hospital, I fell off my knee scooter which I was using as part of my rehabilitation and injured my left side.”
Ms Duarte refers to the opinion of her treating doctors and independent assessor, Dr Calvin Chien, that the injury to her left shoulder occurred as a result of the heavy fall on 5 April 2022 and the later fall from the mobility scooter. She states that she requires physiotherapy and orthopaedic review treatment to manage her injury and the pain and discomfort associated with it.

St Vincent’s Hospital records

Hospital records[4] show Ms Duarte’s presenting problem as “L ankle fracture”. She referred for X-ray of her left ankle and chest on 5 April 2022.
[4] ARD page 24.
There is no reference in the notes throughout the entirely of Ms Duarte’s stay in hospital to injury to her left shoulder, either initially or as a result of the full, and no reference to complaints of pain in the left shoulder. There are occasional references to pain in the left chest.
Notes for 28 April 2022[5] show that Ms Duarte lost her balance on the scooter while opening blinds. They show:
“Fell on left side, left elbow and struck left head on carpet.
No headache, nausea or neurology symptoms. Alone.
[illegible] [illegible] scratched her left elbow
Informed Dr Soo
For hourly [observations?]
If any change [illegible]”.
[5] ARD page 90.
The next record is dated 2 May 2022 when Ms Duarte was awaiting transfer for respite.

Bondi Junction Medical Centre records and report

The first record in the general practitioners’ notes is dated 6 April 2022 when Ms Duarte’s husband called to say she was in hospital; she had a bad reaction to the vaccination and had a fall and had fractured her ankle. She was to have an operation and he needed her list of medications.[6]
[6] ARD page 542.
The next record is dated 15 April 2022 when Ms Duarte had a telehealth consultation about her blood pressure. On 14 May 2022 Dr Varady recorded that she had a fall on 5 April and had fractured her ankle. There is no mention in further consultations throughout 2022 to her left shoulder. The only references to injury concern her left ankle. On 17 June 2023, Dr Varady noted that “physical problems not changed”, Ms Duarte was making slow improvement but was now suffering severe emotional distress. The last consultation date was 23 September 2023. There is no reference to Ms Duarte's left shoulder in that time.
Dr Varady completed a form for the insurer on 29 April 2023.[7] He described Ms Duarte’s injury to her left ankle on 5 April 2022. He referred to her capacity for employment and her attempts to upgrade her capacity. He referred to her physical treatment as physiotherapy, hydrotherapy, and exercise rehabilitation.
[7] ARD page 44.

Workers Doctors

Dr Eric Lim reported to the insurer on 18 March 2024.[8] he stated that Ms Duarte initially presented on 18 March 2024 following left ankle and left shoulder injuries sustained on 5 April 2022. Relevant to her left shoulder, he diagnosed left shoulder strain.
[8] ARD page 243.
Dr Lim took a history of the injury that Ms Duarte injured her left ankle and left shoulder “after fainting whilst working from home”. He described the treatment for her left ankle at St Vincent's Hospital and rehabilitation. He made no reference to the fall from the scooter on 5 April 2022.
Dr Lim referred Ms Duarte for an MRI of her left shoulder stating “has L) shoulder pain with reduced ROM.”
Records for 18 March 2024 show that Ms Duarte saw psychologist Dr Ben Dickson at the same practice. His notes refer to “leg injury from work (April 2022)” but otherwise mostly concern her psychological injury.[9] On the same date, physiotherapist, Matt Meoli, saw Ms Duarte for cervical spine and left shoulder examinations. He saw her again on 27 June 2024 for her left shoulder.
[9] ARD page 273.
On 8 April 2024, Dr Rawdon Waller noted ultrasound of the left shoulder showed “cuff tendinosis and small articular surface tear within the anterior insertional fibers of supraspinatus with surprisingly minimal bursitis”.[10]
[10] ARD page 263.
Records of consultations on April 30 2024 and 27 May 2024 with other doctors at the practice refer to Ms Duarte’s left ankle injury on 5 April 2022.
Records for 24 June 2024 and 27 June 2024 show that Ms Duarte presented for review with left shoulder pain when lifting objects and “intermittent pain and aching in the shoulder”. Dr Lim reported that the injury occurred “after fainting whilst working from home” and that, while she was in hospital, Ms Duarte “fell and landed on her L) arm aggravating her left shoulder.” Dr Lim noted continuing weakness and dysfunction in the left shoulder and said Ms Duarte “has reported L) shoulder pain since the date of the injury on 05/04/2022”. He said that “Due to the initial nature and severity of her [ankle injury], her L) shoulder injury was treated with low precedence [sic]”.

Dr Rowe’s report

Orthopaedic surgeon Dr Roger Rowe saw Ms Duarte for assessment on 7 May 2024 and reported to the insurer on13 May 2024.[11]
[11] Reply page 29.
Dr Rowe took a history that Ms Duarte fractured her right[12] ankle in the fall on 5 April 2022. He noted that she fell from her knee scooter in the hospital and “landed on her left side and hurt her left shoulder and generally the left side of her body”.
[12] This is clearly an error and should read left ankle.
Under “Additional Injury” Dr Rowe took a history from Ms Duarte that, around November 2023, she lifted a plastic bag full of household goods that she was delivering to a charity shop and felt pain in her left shoulder. She saw Dr Varady. It took about one month to settle. Early in 2024, she picked up a brick in her garden which resulted in “much pain in the left shoulder again”. She saw Dr Varady. She was also checked over by a paramedic and was taken by ambulance to St Vincent's Hospital as she was fainting due to shoulder pain. Ms Duarte reported she had no history of problems in her shoulder. She said the left shoulder still ached on an intermittent basis.
On examination of Ms Duarte’s left shoulder, Dr Rowe found no deformity. He said the ache was sited mainly in the trapezius region and could be reproduced by neck rotation to the left. The shoulder joint itself had no restricted range of movement compared to the other side. He noted there was no report of any imaging of the left shoulder.
In response to questions, Dr Rowe said:
“The diagnosis in regard to the left shoulder is not clear but clinically there appeared to be no problem with her shoulder. Her discomfort is in the trapezius and is reproduced by neck rotation to the left. Thus it is arising from the cervical spine.”
Dr Rowe said there was no evidence of left shoulder strain secondary to the ankle fracture itself. He noted three incidents regarding the shoulder, one when Ms Duarte fell from the scooter well in hospital, and the others in late 2023 and early 2024. He said there seemed “little evidence to relate these symptoms to her original injury unless the fall from the knee scooter was documented as being significant.” He said:
“If the fall from her scooter whilst in hospital was documented as producing significant left shoulder pathology at the time or at least significant left shoulder region symptoms at the time, then it would be reasonable to relate the shoulder symptoms to the fall. It should be noted that my clinical assessment is that her shoulder region symptoms are probably arising from the cervical spine.”

Dr Chien’s report

Orthopaedic surgeon Dr Calvin Chien saw Ms Duarte for assessment on 22 July 2024 and reported to her solicitors on the same date.[13]
[13] ARD page 20.
Dr Chien noted that Ms Duarte fainted at home on 5 April 2022 “and had a left ankle injury.” He noted that she fell from the knee scooter in early May “injuring her left shoulder”. He said there were “no urgent injuries detected and [it] was largely ignored to be sorted as an outpatient”. He noted that she had ongoing shoulder pain since the fall in hospital and there were two other episodes that aggravated her left shoulder. He said these were “simple actions that usually would not cause pain in a normal shoulder”.
Dr Chien noted that the MRI of the left shoulder on 3 April 2024 showed cuff tendinosis with a small articular surface tear within the anterior insertional fibres of supraspinatus. He diagnosed, relevantly, left shoulder partial rotator cuff tear.
As to causation, Dr Chien referred to the fall in hospital, that Ms Duarte could not weight bear on her left ankle and she also had to use a knee scooter. He said “All 3 factors, are substantial contributing factors to her injury and symptoms in her left shoulder” and were all the result of the initial injury. He said had she not injured her ankle and subsequently injured her left shoulder, then holding a plastic bag and a single brick would not have caused any problems “like anyone else”.
With respect to Dr Rowe, Dr Chien said lifting a plastic bag or a single brick would not cause shoulder pain or a partial cuff tear. He said it could “certainly aggravate” an injured shoulder and it was “much more likely that the fall while in hospital that initially injured her left shoulder was the more substantial contributor of her shoulder symptoms and diagnosis.”

Physiotherapy report

On 13 February 2024, physiotherapist Dr Andrew Leaver reported to the insurer recommending approval for further physiotherapy. He noted that Ms Duarte injured her left ankle at work on 5 April 2022 and underwent surgery. He reported slow improvement in her ankle function. Her treating physiotherapist confirmed the history of fracture of the left ankle.
There is no reference in Dr Leaver’s report to Ms Duarte’s left shoulder.

Injury claim form

On 4 July 2022, Ms Duarte completed an injury claim form.[14] She described the circumstances of her injury as follows:
“When I work [sic] up on 05/04/2022 around 8:00 AM and went to the bathroom I felt faint and wanted to get back to my bedroom …. Before I reached the bedroom I fainted in the hallway.
When I came around I could not move and noticed that my left foot was in a right angle to my leg and very painful. The ambulance was called and I was taken to St Vincent's hospital emergency for surgery.
[14] ARD page 225.
As to the body parts affected, Ms Duarte identified her left ankle. There is no reference to her left shoulder.

SUBMISSIONS

The applicant’s submissions

Mr Necovski refers to Ms Duarte’s statement of evidence and submits there is no doubt that she needed significant rehabilitation for her left ankle injury.
Mr Necovski acknowledges there is “not much evidence” of a frank injury to the Ms Duarte’s left shoulder on 5 April 2024. It is not disavowed but her focus is on the subsequent injury.
Mr Necovski submits that the hospital records show that Ms Duarte was found on the floor on 28 April 2022 on her left side after a fall. Dr Rowe says there would need to be evidence of a significant fall. Ms Duarte says it was a significant fall. Mr Necovski submits that, in effect Dr Rowe supports her evidence.
Mr Necovski submits that Dr Chien took a history of the injury to Ms Duarte's left shoulder. The reality is that she was preoccupied with the serious injury to her left ankle and this may explain the lack of reference to the left shoulder in the records. Dr Chien noted that she had ongoing pain in the left shoulder. Further, that the relatively insignificant incidents in November 2023 and 2024 would not otherwise have caused her problems. She had a problem with her left shoulder already and it was made worse by the later incidents.
Mr Necovski refers to the MRI which showed injury to Ms Duarte’s left rotator cuff. A copy of the MRI is not in the documents but Dr Chien and Dr Lim both refer to it. Dr Chien and Dr Lim both supported claim of injury to the left shoulder. Mr Necovski submits that I would find the incident on 28 April 2024 was a significant injury applying the commonsense test in Kooragang Cement Pty Ltd v Bates[15] and the test in Murphy v Allity Management Services Pty Ltd.[16]
[15] Kooragang Cement Pty Ltd v Bates 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[16] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy v Allity).

The respondent’s submissions

Mr Stiles submits that nothing in the records of Bondi Junction Medical Centre refers to injury to Ms Duarte’s left shoulder. The records from St Vincent's Hospital on 28 April 2022 refer to her fall from the knee scooter and note that she fell on her left side. They refer to her elbow and her head. Mr Stiles submits there is no reference to her left shoulder even though it is clear that she fell on her left side. Mr Stiles submits that it is not enough for Ms Duarte to question how detailed the records need to be to support her claim.
Mr Stiles refers to Ms Duarte's statement dated 21 June 2022. He submits there is no reference to hurting her shoulder on 5 April 2022. She simply says she woke up on the floor. There is no reference in this statement to a fall from the scooter on 28 April 2022 and nor is there a reference to her left shoulder in her statement dated 13 October 2022.
Mr Stiles refers to the injury claim form which Ms Duarte completed on 4 July 2022 which contains no reference to her left shoulder
Mr Stiles submits that the first reference by any doctor to Ms Duarte's left shoulder was when she saw Dr Lim in March 2024. In contrast, on 29 April 2023, 12 months after the claimed injury, Dr Varady, who had treated her since the original fall at home, referred only to her left ankle. Similarly, Dr Leaver makes no reference to the left shoulder in his report of 13 February 2024.
Mr Stiles submits that it was only when Ms Duarte saw Dr Lim that conditions including her right hip and left shoulder appear. Even then, Mr Stiles submits, Dr Lim does not identify the cause of the left shoulder injury. He does not refer to the fall from the scooter, only that Ms Duarte fainted at home. Dr Lim's report is not consistent with Ms Duarte’s claim. Mr Stiles submits that, between April 2022 and March 2024, there is no clinical, objective evidence concerning her left shoulder.
Mr Stiles submits that Dr Rowe does not support Ms Duarte’s claim as Mr Necovski suggests. Dr Rowe considered that her symptoms could be from her neck. He found no evidence of injury to her left shoulder on 5 April 2022 and said it would only be reasonable to relate the fall on 28 April 2024 to a shoulder injury if the fall was documented as significant. Mr Stiles submits there is no such evidence.
As to the incidents in November 2023 and early 2024, Mr Stiles submits that, absent more contemporaneous evidence at the time, it is probable that they are the cause of any condition in Ms Duarte’s left shoulder. Mr Stiles submits that Dr Chien noted that she fell from the scooter and injured her shoulder but he has not considered the absence on the clinical records of reference to her left shoulder.

Mr Stiles refers to documents in the ARD concerning a workers compensation claim in 2014 which show that Ms Duarte had problems with her left shoulder for some years before the fall in 2022. A physiotherapy report on 21 February 2014 to Dr Varady shows “neck and left shoulder problems started a few months ago”.[17] A report dated 3 December 2014 from orthopaedic surgeon Dr George Kalnins also refers to pain in Ms Duarte’s left neck and shoulder from answering telephones.[18] Mr Stiles submits that we do not know the extent of previous problems but Dr Chien’s report to the effect that this was the initial injury to her neck cannot be accepted.
[17] ARD page 877.
[18] ARD page 968.
Mr Stiles submits that, in her statement dated 19 September 2024, Ms Duarte says she fell hard on her left shoulder, but that is not what she told the investigator in June 2022 when she said she passed out. Mr Stiles submits that her statement cannot be accepted in the context of all the other evidence including that Ms Duarte originally said she did not know what had happened when she fainted on 5 April 2022.
Mr Stiles submits that Ms Duarte bears the onus of establishing her claim. He submits there is no clear causal connection to a frank or consequential injury to her left shoulder. There is no reference to her left shoulder until she saw Dr Lim in March 2024, and he gives a very unclear diagnosis. Mr Stiles submits that I would not accept his opinion.

Submissions in reply

In reply, Mr Necovski submits that Ms Duarte was 68 at the time of the fall at home and it is reasonable to conclude that its effects were substantial. Further, that I would accept Dr Chien’s opinion that the only explanation for the routine activity Ms Duarte undertook in November 2023 and early 2024 was that she already had significant symptoms in her left shoulder as a result of her injury.

FINDINGS AND REASONS

Section 4 of the 1987 Act relevantly defines “injury” as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, … ”
Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
I have to determine whether Ms Duarte suffered injury to her left shoulder in the initial fall on 5 April 2022 within the meaning of s 4(a) of the 1987 Act and/or injury in the fall from the scooter on 28 April 2022 (pleaded as a consequential condition).
A “common sense” approach is to be taken to determining questions of causation, by careful analysis of the evidence, including a careful analysis of the expert evidence: Kooragang and Kirunda v State of New South Wales (No 4).[19]
[19] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang); Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45.
Ms Duarte bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[20] and Nguyen v Cosmopolitan Homes.[21]
[20] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[21] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
There is no dispute that Ms Duarte sustained a serious injury to her left ankle in the fall on 5 April 2022. There was clear objective evidence of the fracture. However, the extent of evidence of injury to her left shoulder on that date is her statement dated 19 September 2024 and the opinions of Dr Lim from March 2024 and Dr Chien in July 2024.
With all respect to Ms Duarte, her recollection of what happened on 5 April 2024 is not reliable. In her statement to the investigator on 21 June 2022 she says she cannot remember exactly what happened or how it happened, and “the next thing” was that she woke up on the floor; she did not know how long she was there for. In her statement dated 19 September 2024 she says she lost consciousness. Her statement that she “fell hard” on her left shoulder cannot be based on her own recollection.
Ms Duarte suffered a serious and obviously painful injury to her left ankle. It would not be surprising if it had the effect of diverting attention from another less serious or less painful injury. However, she was in hospital until 4 May 2022 when she was discharged to respite care and then rehabilitation. There is no reference at all in the hospital records to injury to her left shoulder or complaints of pain in her left shoulder in that time.
Courts have cautioned against over-reliance on clinical records which are prepared for the purpose of treatment, often by a busy doctor: Mason v Demasi.[22] However, that does not mean that evidence can be inferred from records that is simply not there. In the course of a stay in hospital over several weeks, it is reasonable to conclude, had Ms Duarte complained of pain in her left shoulder, that it would have been noted.
[22] Mason v Demasi [2009] NSWCA 227.
In the absence of any evidence until March 2024 when Ms Duarte saw Dr Lim of injury to her left shoulder or complaint of symptoms, I am not persuaded that she sustained injury to her left shoulder in the fall on 5 April 2022. Even if there was a reasonable explanation for the absence of evidence up until then, Dr Lim’s opinion does not assist her. He states that she injured her left shoulder after fainting while working at home. For the reasons outlined above, that statement must be unreliable. Even if Ms Duarte’s recollection was better, Dr Lim does not explain the mechanism of injury. He does not consider the absence of evidence of injury for nearly two years, and he does not appear to have considered the incidents in November 2023 and early 2024.
Dr Chien also does not assist. He refers to an MRI on 3 April 2024 of Ms Duarte’s left shoulder which showed “cuff tendinosis with a small articular surface tear within the anterior insertional fibres of supraspinatus”. He does not explain how this relates to either fall. The MRI was taken two years after the initial fall and after Ms Duarte fell from the scooter. He does not appear to have considered when the tear might have occurred and whether either of the incidents she related in November 2023 and early 2024 could have caused it.
I am not persuaded, on the evidence before me, that Ms Duarte injured her left shoulder in the fall on 5 April 2022.
Nor am I persuaded that Ms Duarte injury to her left shoulder in the fall from the knee scooter. The records indicate that she fell on her left side, and they refer to her left elbow and left head. It does not stand to reason, as Mr Necovski suggested, that she injured her left shoulder as well. Again, Ms Duarte remained in hospital for another week without any note of complaint about her left shoulder.
I do not accept that the commonsense test in Kooragang can be applied in the circumstances of this case to find a chain of causation leading to the conclusion that Ms Duarte suffered injury, whether “frank” or an aggravation, that has materially contributed to the need for treatment for her left shoulder.
For these reasons, I find that Ms Duarte has not discharged the onus of establishing, on the balance of probabilities, that she suffered injury to her left shoulder on 5 April 2022 or 28 April 2022. It follows that her claim for reasonably necessary treatment expenses must fail.

[2024] NSWPIC 723

31 December 2024