Goss v Secretary, Department of Transport

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Goss v Secretary, Department of Transport [2024] NSWPIC 680
APPLICANT:	Graham Goss
RESPONDENT:	Secretary, Department of Transport
MEMBER:	Adam Halstead
DATE OF DECISION:	6 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury; section 4; substantial contributing factor; section 9A; claim for medical expenses to undergo shoulder arthroscopy surgery, section 60; motor vehicle collided with right side of applicant’s body; claim for frank injury to left shoulder; liability disputed by respondent; Held – applicant has not established left shoulder condition arose from work injury; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission is not reasonably satisfied the applicant suffered a frank injury to his left shoulder during employment with the respondent on 21 December 2023. 2. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

These proceedings are about whether the applicant, Mr Graham Goss, sustained injury to his left shoulder while working for the respondent, Secretary of the Department of Transport. The applicant was at all relevant times employed by the respondent as an emergency patrol vehicle operator. His duties included response and attendance at motor vehicle accidents, where he was required to work in a road traffic environment.
It is uncontentious that while attending a motor vehicle accident at Westmead on 21 December 2023, a passing vehicle contacted the right side of the applicant’s body. He claims to have received an injury to his left shoulder because of that contact. He has made a claim for the injury to be accepted as work-related and seeks the cost of associated medical treatment by way of arthroscope surgery.
The respondent disputes the claim made by the applicant.
An Application to Resolve a Dispute (ARD) related to his claim was filed by the applicant in the Personal Injury Commission (Commission) on 16 August 2024.

PROCEDURE BEFORE THE COMMISSION

After progressing through the usual preliminary conference and conciliation stages, the matter was before the Commission for arbitration on 1 November 2024 in a virtual hearing room. Mr Horan of counsel, instructed by Mr Thomas solicitor, appeared for the applicant, who was also present. The respondent attended by way of an authorised officer and was represented by Mr Jones of counsel, instructed by Ms Gallagher solicitor.
I am satisfied the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an agreed outcome and am satisfied that the parties have had sufficient opportunity to explore settlement. They were unable to reach agreement on resolution of the dispute.

ISSUE FOR DETERMINATION

The parties agree that the issue in dispute is whether the applicant received a frank injury to his left shoulder in the course of employment on 21 December 2023.
It is undisputed that the medical treatment sought by the applicant, left shoulder arthroscopy rotator cuff and bicep tendon repair, is reasonably necessary should the injury be found to have arisen in the course of employment.

EVIDENCE

There was no application to call oral evidence or cross-examine any witness at the hearing.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply with attachments from the respondent (Reply);
(c)    documents provided with the Application to Admit Late Documents signed by the respondent’s solicitor on 29 October 2024 and received by the Commission at the arbitration hearing (AALD1), and
(d)    documents provided with the Application to Admit Late Documents filed by the applicant on 24 October 2024 (AALD2).
I considered various objections made by each party about the applications for late evidence. A determination on the admission into evidence of various documents was made at the arbitration hearing. My reasons for the determination follow.
The applicant sought to introduce the report of Dr Warren Kuo dated 17 October 2024 and the report of Dr Charles New dated 23 October 2024.
The report of Dr New had been foreshadowed at the preliminary conference as a reply to the report of Dr Stephen Rimmer dated 11 September 2024 served by the respondent, which raised the issue of respondent liability for the applicant’s left shoulder condition for the first time. Given that novel issue, it was reasonable for the applicant to have an opportunity to obtain and rely upon Dr New’s expert opinion in response. The report of Dr Rimmer also commented on Dr Kuo’s treatment and proposal for future treatment of the applicant. It was considered procedurally fair for the applicant to obtain and rely upon a response from Dr Kuo in the circumstances.
The reports of Dr New and Dr Kuo were accepted into evidence on the basis there was little or no prejudice to the respondent and it was in the interests of justice to do so overall. They now comprise AALD2.
The respondent’s application related to admission into evidence of the reports of Dr Rimmer dated 11 September 2024 and 31 October 2024, a report of Dr New dated 28 September 2022 and CCTV footage of the vicinity of the incident on 21 December 2023 that is central to the dispute.
The 11 September 2024 report of Dr Rimmer was provided to the applicant in sufficient time for it to be reviewed by his medical expert and treating surgeon. The 28 September 2022 report of Dr New was previously in the applicant’s possession and was well known to him by the time of these proceedings. There was no prejudice to the applicant for those reports to be accepted into evidence and it was in the interests of justice to do so. Those reports are now within AALD1.
The report of Dr Rimmer dated 31 October 2024 and the closed-circuit television (CCTV) footage was essentially surprise evidence served at a very late stage, without notice, immediately before the arbitration hearing. There was no reasonable opportunity for those items to be properly considered by the applicant’s counsel and instructing solicitor with the benefit of full instructions from the applicant. Admission into evidence of those would have been procedurally unfair and not otherwise in the interests of justice. The respondent’s application as it related to those documents was rejected accordingly.

Workplace incident

The applicant provided his recollection of the relevant event in his statement dated 15 August 2024:[1]
“16. On 21 December 2023 I was (during the normal course on my employment) attending to a motor vehicle accident on the corner of the Great Western Highway and Good Street, Westmead, New South Wales. Upon arriving at the scene of the accident I had to move one of the vehicles involved in the accident.
17. One of the vehicles involved in the motor vehicle accident was mounting a footpath and had hit a fence. I had to move this car out of the way to enable the traffic to flow freely. Whilst I was standing at the intersection of Good Street and the Great Western Highway, directing traffic I was struck by a car travelling westbound on the Great Western Highway. I was attempting to try and stop the traffic when that car came through and struck me.
18. The car that struck me was travelling on the Great Western Highway and was attempting to turn into Good Street and collided with me on the right hand side of my body causing me to turn and twist around to my left hand side. I remember turning around to my left and catching a glimpse of the vehicle that struck me, and it was a Hyundai sedan. As the car hit the right hand side of my body and I twisted and turned to the left, my knee twisted as did my shoulder, especially my left shoulder causing the tear (which I did not know at the time).”
[1] ARD pp 2-3.
The applicant went on to state that he “did not lose consciousness” and described other injuries that are not the subject of these proceedings. He also recalled having “immediate pain” in his left shoulder and that an ambulance did not attend the scene but that the contact with the car caused him to “twist and turn which threw [his] left shoulder out and caused the tear”.[2] The applicant said he then “notified my employer of the workplace incident and advised that I was going home” and that was his “understanding that a Workers Compensation claim was lodged and accepted shortly after”.[3]
[2] ARD p 3.
[3] ARD p 3.

Insurer notification form

The workers compensation insurer initial notification form sent on 22 December 2023 referred to the incident as “slight contact to right knee and hip” in the description of the injury and that there had been “[n]o medical treatment required for worker”.[4] It is unclear whether the incident as being “slight contact” was recorded exactly as reported by the applicant.
[4] Reply pp 1-2.

Dr Bill Moss

The applicant attended a consultation with his usual treating general practitioner (GP), Dr William Moss, the day following the workplace incident. Dr Moss issued a Certificate of Capacity, dated 22 December 2023, assessing the applicant as having no capacity for work from 22 December 2023 to 12 January 2024. Injury to the right hand, right hip and right knee were cited in that certificate.[5]
[5] ARD p 239.
In the Certificate of Capacity issued by Dr Moss on 4 January 2024, reference was made to several additional injuries arising from the 21 December 2023 incident, including the left trapezius.[6] The following certificate, issued 12 January 2024, referred to left “trapezius/shoulder injury”.[7] The next certificate is dated 24 January 2024 and cites left “trapezius/shoulder sprain”. Dr Moss then referred to left “trapezius strain”, left “shoulder supraspinatus tendon tear” and left “shoulder subacromial bursitis” in the certificate that appears to have been issued on 9 February 2024.[8] Presumably the more specific diagnosis became possible after reporting from a referral made by Dr Moss on 24 January 2024 for the applicant to undergo an X-ray and ultrasound of his left shoulder,[9] however that investigation report is not before the Commission (nothing turns on its absence for the purpose of this determination).
[6] ARD p 259.
[7] ARD p 264.
[8] ARD p 274.
[9] ARD p 399.
The applicant was referred to Dr Warren Kuo, orthopaedic surgeon, by Dr Moss for specialist treatment of the left shoulder. In the letter of referral dated 9 February 2024, Dr Moss listed “left bursitis, subacromial” and “left supraspinatus tendon tear” as past history for the applicant from 9 April 2019. The same past history is recorded in referral letters of 30 January 2023 and 28 September 2023 to another specialist, Dr Eli Olschewski, that both pre-date the workplace incident on 21 December 2023.[10] It also appears again in a referral letter to Dr Raymond Ko dated 16 June 2023[11] and in a referral to a dentist of 12 May 2023.[12] The references in the clinical notes history to a tear in the applicant’s left supraspinatus tendon presumably relate to the report to Dr Moss from Dr James Metri, radiologist, dated 4 April 2019.[13]
[10] ARD pp 234 and 339.
[11] ARD p 306.
[12] ARD p 280.
[13] Reply p 17.

Dr James Metri

The radiology report from Dr Metri referred to a clinical history of left shoulder “stabbing pain of supraspinatus [and] impingement” and an ultrasound investigation conducted on 4 April 2019 identified tearing to the supraspinatus with rotator cuff tendinosis, biceps tendon sheath effusion, mild tendinosis of the subscapularis and bursitis with impingement. A “4 x 18mm” partial-thickness tear of the supraspinatus was identified. Dr Metri commented that there was also evidence of joint osteoarthritis. That report is compelling evidence that the applicant had various, not insignificant, problems with his left shoulder before the incident on 21 December 2023.

Dr Warren Kuo

The applicant was referred to Dr Kuo for specialist orthopaedic attention to the left shoulder condition. Dr Kuo prepared an initial report to Dr Moss dated 28 March 2024 wherein he referred to “X-rays taken 2^nd of February 2024 [that] show some irregularity of the greater tuberosity” and an ultrasound reporting “a 15x5mm full thickness supraspinatus rotator cuff tear with bursitis”. Dr Kuo’s “clinical impression” at that time was “left rotator cuff injury/tear”.[14] He referred the applicant for an MRI scan.
[14] ARD p 396.
In his next report, dated 16 May 2024, Dr Kuo reviewed an MRI obtained on 17 April 2024 that confirmed “a left full thickness supraspinatus rotator cuff in its anterior aspect” with “associated bursitis” and that there was “ongoing impingement with some reduction in power with associated pain”. The intention to apply for insurer approval for arthroscopy surgery was foreshadowed at that time.[15]
[15] ARD p 397.
The 20 June 2024 report of Dr Kuo refers to the applicant receiving “limited benefits” from physiotherapy to his left shoulder and that consideration be given to proceeding with “left shoulder arthroscopy and rotator cuff repair/biceps tenodesis”. He also noted at the time “the Insurance Company is disputing liability”.[16]
[16] ARD p 398.
Dr Kuo prepared a “confidential medico-legal report” on 5 August 2024, which referred to the content of his earlier reports, provided a general and clinical history and outlined future treatment options.[17] Dr Kuo also reported that “[b]ased on the history I am of the opinion that [the applicant’s] employment and workplace is a substantial contributing factor to his symptoms”. He did not however describe the basis for that opinion in any detail. That is, Dr Kuo did not explain how the 21 December 2023 incident caused injury to the applicant’s left shoulder.
[17] ARD p 179.
A medico-legal report was prepared by Dr Kuo for the applicant’s solicitor on 17 October 2024.[18] That report largely restates the content of his 5 August 2024 report but includes some additions relevant to the cause of the left shoulder condition:
“… My opinion is solely based on the patient’s history and the mechanism described of being impacted by a vehicle despite hitting him on the right side but causing him to twist and turn onto his left could plausibly cause a left shoulder injury. Perhaps importantly [the applicant] was not symptomatic in the left shoulder prior to this incident and now is plagued by a painful left shoulder which has not recovered despite non operative management.
I am of the opinion that the injury caused by the motor vehicle striking [the applicant] has caused the need for surgery that has been recommended.
I am of the opinion that [the applicant] is incapacitated from employment as a result of his injury…
…
I make comment that Dr Rimmer states that [the applicant] did not mention the left shoulder was injured at the time of his original injury but in my history obtained at our initial consultation [the applicant] had specifically mentioned that his left shoulder had become painful as a result of the accident. There are also medical reports from the GP that would indicate that the left shoulder has been mentioned as a source of pain and pathology.
He also makes comment about a ‘degenerative’ rotator cuff tear. This can only be speculation. His MRI scan shows a full thickness tear measuring 9mm and there is no atrophy of the muscle which would indicate that this is less likely to be a chronic tear…”
[18] AALD2 p 5.
Dr Kuo accepts that despite the applicant being hit on the right side of his body, the “twist and turn onto his left could plausibly cause a left shoulder injury”. He does not however explain the mechanism by which such injury might occur. There is no reasoning offered by Dr Kuo to base his opinion that the injury caused by the motor vehicle striking the applicant. Although he found it plausible, Dr Kuo did not describe in any way how a “twist and turn” might have caused the applicant’s left shoulder injury.
The reference by Dr Kuo to “medical reports from the GP that would indicate that the left shoulder has been mentioned as a source of pain and pathology” is vague as to whether those documents include the referral letter from Dr Moss of 9 February 2024 that identified pre-existing “left bursitis, subacromial” and “left supraspinatus tendon tear” originally recorded on 9 April 2019. If it did, that would suggest the applicant experienced “pain and pathology” prior to the 21 December 2023 incident.
In reference to a report of Dr Stephen Rimmer, Dr Kuo discounted comment about degenerative rotator cuff tear as “speculation”, which is inconsistent with the 4 April 2019 findings of Dr Metri that established a tear with a high degree of clinical certainty. It seems in the circumstances Dr Kuo did not have the benefit of reviewing Dr Metri’s earlier investigation report.
The extent to which Dr Kuo considered the “left bursitis, subacromial” and “left supraspinatus tendon tear” referred to in the 9 February 2024 letter from Dr Moss is unclear. It is not certain that Dr Kuo had the 4 April 2019 report of Dr Metri that contained evidence of an earlier highly relevant injury. Had he been aware of the report, it is reasonable to expect, particularly with regard to his last two reports prepared for medico-legal purposes, that Dr Kuo would have addressed the earlier similar left shoulder condition diagnosed in 2019 and anything related that may be underlying at the relevant date in the context of contribution it may have had to the pathology as diagnosed in 2024.
The opinion of Dr Kuo is lacking in substance in that proper reasoning has not been given for its conclusion and, in circumstances where it seems previous pathology has not been addressed, his opinion as to causation can be given limited weight.

Dr Eugene Ng

Dr Eugene Ng was the radiologist responsible for the MRI scan and report of 17 April 2024 that had been requested by Dr Kuo.[19] Dr Ng’s conclusion was of a “full-thickness tear involving the anterior 9.2mm of the supraspinatus tendon with no significant atrophy involving the supraspinatus muscle” and referred to a “predisposition to impingement”. Dr Ng noted “left rotator cuff tear” as clinical history, but without providing any context or comment as to the source of that history.
[19] ARD p 402.

Dr Charles New

The applicant qualified Dr Charles New, orthopaedic and spinal surgeon, to conduct an independent medical examination, which occurred on 5 July 2024. In his subsequent 24 July 2024 report, Dr New recorded that the applicant indicated various injuries arose at the time of the incident but did not refer to left shoulder amongst them. That injury was nonetheless considered “the major issue” by the applicant when he consulted Dr Moss and Dr Kuo, according to the history taken by Dr New.
Dr New referred to an ultrasound of the applicant’s left shoulder of 4 April 2019 as a radiology investigation and made the following related comment:[20]
“Confirmed a minor degenerative change and spurring on the AC joint. Supraspinatus showed partial thickness articular surface changes with early glenohumeral joint osteoarthritic changes.”
[20] ARD p 176.
The 4 April 2019 ultrasound investigation cited is presumably that of Dr Metri, however it is unclear whether a full copy of that report was available to Dr New since he did not specifically mention the 4 x 18mm partial-thickness tear of the supraspinatus identified by Dr Metri. Nor was there any comment by Dr New about the tendonitis reported at that time. It seems Dr New’s comment about the presence of “partial thickness articular changes” may be reference to the tear, but that would be conjecture in the absence of further information such as whether he had a complete copy of the original report.
Dr New considered on “the balance of probabilities” that it was his “opinion that there is a connection between the [applicant’s] employment and the injuries sustained and described when the car hit him on 21^st December 2023”.[21] He further opined that the applicant’s “employment was a substantial contributing factor to the injury”. However, Dr New provided no reasoning or basis for those conclusions about the cause of the left shoulder condition.
[21] ARD p 177 at [17].

It was also reported by Dr New that the applicant “states that he had not had any significant shoulder problems prior to the motor vehicle accident”. Any such statement by the applicant is demonstrably incorrect given he undoubtedly had left shoulder problems in 2019 to the extent that medical investigations were required, that resulted in the ultrasound report from Dr Metri. It is also inconsistent with an earlier report prepared by Dr New on 28 September 2022 in relation to the applicant for an earlier claim.[22] In that report, Dr New recorded that the applicant stated “he sustained injuries to his back, neck and shoulders” in an incident on 4 April 2021.
[22] AALD2 p 12.
In his later report of 22 October 2024, Dr New states:[23]
“It is my opinion, with regard to the mechanism of injury regarding [the applicant’s] left shoulder, that his current presentation was as a result of the motor vehicle accident in which he was a pedestrian. He was predominately injured on the right side however the mechanism of injury described to me would result in pathology in the left shoulder, which has been investigated.”
[23] AALD2 p 3.
The description referenced by Dr New presumably being that recited earlier in the report where the applicant “described to me the mechanism of injury, noting the points of contact on the right side and the twisting of his left shoulder”. Although he purports to do so, Dr New does not explain the mechanism of the injury, but rather recounts a version of events given by the applicant. There is no proper explanation or reasoning as to how a point of contact on the applicant’s right side and related “twisting of his left shoulder” might have caused the injuries diagnosed, including the full thickness supraspinatus rotator cuff tear as reported by Dr Kuo. In the absence of a cogent explanation, it is not for the Commission to speculate as to whether “twisting” secondary to right-side contact would be sufficient to cause, inter alia, the supraspinatus tear and, if so, how that might occur.
Accordingly, the weight given to the reports of Dr New must also be limited given the lack of proper reasoning and explanation for his conclusions combined with the doubt about whether he reviewed the complete report of Dr Metri from 4 April 2019 or fully took into account the documented (including by himself) prior shoulder problems experienced by the applicant.

Dr Stephen Rimmer

The respondent qualified Dr Rimmer, orthopaedic surgeon, to conduct an independent medical examination of the applicant. He prepared a report dated 11 September 2024[24] wherein he considered that the applicant was “extremely vague” in response to questioning about his left shoulder condition and its cause as well as describing it as “a secondary injury”.
[24] AALD1 p 2.
An MRI of 17 April 2024, which is undoubtedly that prepared by Dr Ng, was identified as available to Dr Rimmer at the time of his report. He formed the opinion that the applicant’s left shoulder “was not injured in the subject accident” and that “constitutional/age-related change” was relevant for consideration as a contributing factor generally, including for other injuries examined. Dr Rimmer recorded that the applicant “even confirmed that it was at a later date he developed left shoulder pain” and that “as to the cause, [the applicant] could not establish one”.[25]
[25] AALD2 p 8.
The report of Dr Rimmer suffers from similar deficiencies to those of Dr Kuo and Dr New. His opinion, that the applicant’s left shoulder condition was not caused by the 21 December 2023 incident, was stated as a conclusion without an explanation or any reasoning process described. It might be argued that inferences could be drawn that the applicant’s apparently unsatisfactory account of injury and that “constitutional/age-related change” are the basis for the opinion, however I do not consider there is sufficient detail available to draw such inferences. It is also apparent that Dr Rimmer did not have the benefit of the earlier clinical records and investigations reports that outlined left shoulder problems the applicant had experienced previously. Accordingly, while Dr Rimmer’s opinion is noted, it too is afforded the appropriate weight in the circumstances.

CONSIDERATION AND FINDINGS

The Commission is requested to resolve the dispute concerning liability for the applicant’s left shoulder condition. The applicant’s claim is that he sustained frank injury to his left shoulder when he came into contact with a motor vehicle at work on 21 December 2023.
Section 4 of the Workers Compensation Act 1987 (the Act) is relevant and provides that an injury must have arisen out of, or occurred in the course of, employment for compensation to be available. Section 9A of the Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury).
The applicant bears the onus of establishing his case of workplace injury on the balance of probabilities with reference to s 4 of the Act: Department of Education and Training v Ireland [2008] NSWCCPD 134.
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (at [429]). The Commission has consistently applied this meaning to injury: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), with Roche DP observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is ‘a sudden identifiable pathological change’”.
I am therefore required to determine whether the applicant’s left shoulder was injured on 21 December 2023 when a motor vehicle contacted his right side while he was working for the respondent. Examination is required of whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s left shoulder because of the motor vehicle incident.
According to the 22 December 2023 incident notification provided to the respondent’s workers compensation insurer, the incident involving the applicant the day before consisted of “slight contact to right knee and hip”. That notification suggests the incident was of a very minor nature. However, the available evidence is inconclusive as to whether that description originated from the applicant. His evidence of the event suggests something more substantial.
In his statement of 15 August 2024, the applicant refers to a vehicle that “collided with me on the right hand side of my body causing me to turn and twist around to my left hand side”. The applicant’s evidence is that he received “immediate pain” in his left shoulder and that contact with the car caused him to “twist and turn which threw [his] left shoulder out”. The nature of that evidence is unequivocal; the effect of the contact was immediate, resulted in left shoulder pain and the shoulder joint was thrown out of its normal position.
The applicant visited Dr Moss on several occasions thereafter in relation to the incident. The first consultation occurred on the day after the incident, 22 December 2023. There is no reference by Dr Moss to the applicant having injured his left shoulder during the session on that date. Had the applicant received immediate pain associated with his shoulder being thrown out of normal position as claimed, it is reasonable to assume it would have been reported and Dr Moss would have recorded that injury. It was a notable and substantial injury according to the applicant’s own evidence. The absence of such reporting is considered significant.
It was not until the third related consultation on 12 January 2024, more than three weeks after the incident, that the applicant’s left shoulder is first recorded as having been injured. It was argued that the consultation of 4 January 2024 included indirect reference to the left shoulder in that reference is made to left trapezius injury. Notwithstanding that consultation was two weeks after the incident, Dr Moss referred to the trapezius and shoulder injuries separately in the certificates thereafter, which suggests they were separate problems.
Whether it was two or three weeks later, there was a not inconsiderable delay in reporting an injury that is claimed by the applicant to have been immediate and substantial. Indeed, it was the “major issue” arising from the incident with the motor vehicle according to the applicant in his meeting with Dr New on 5 July 2024.
A submission was made on behalf of the applicant that it was likely the case the nature of the left shoulder condition was such that pain did not fully develop or manifest until the days following the incident. It is a submission that is consistent with the information Dr Rimmer reports to have been given by the applicant that he “even confirmed that it was at a later date he developed left shoulder pain”. It is also consistent with the account given to Dr New in that left shoulder was not included as an injury on the day of the incident. That submission is however in direct conflict with the applicant’s own evidence of “immediate pain” following the contact with the motor vehicle. His statement contradicts the account of injury and timing of pain given by the applicant to both Dr New and Dr Rimmer. I consider that discrepancy in the applicant’s evidence to be significant and unreconcilable with the submission and versions of events he gave to the independent doctors. The cause and nature of the left shoulder injury is the central tenet of his case, yet his accounts and statement evidence on this critical issue are contradictory. It is not possible to establish with any precision when the applicant’s left shoulder pain arose. His evidence on that key point is treated as unreliable in the circumstances and given little weight.
There is also the issue of historical evidence of left shoulder pain and injury prior to the 21 December 2023 incident. Unfortunately, the expert medical opinion in evidence does not assist the Commission to determine the extent to which the applicant’s pre-existing condition may be relevant to his claim. The available evidence is that the applicant experienced a related injury around early April 2019 and again in an incident on 4 April 2021. I am unable to determine the contribution either or both of those events may have had on the applicant’s left shoulder, or indeed whether those may have been the actual cause of his current pathology.
The evidence relied upon by the applicant is either unreliable or does not address critical relevant medical issues. It has not been established to my reasonable satisfaction that there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s left shoulder at the time of the 21 December 2023 incident.
I have been unable to determine that state of the applicant’s shoulder immediately before the incident and do not accept the available evidence establishes that the incident with the motor vehicle on 21 December 2023 was a substantial contributing factor responsible for the applicant’s left shoulder injury as required by s 9A of the Act. Had the injury arisen in the manner, and had the immediacy, claimed by the applicant in his statement then it would have undoubtedly been reported to Dr Moss the following day, yet that did not occur. Instead, there is reference to left trapezius injury two weeks later and then the shoulder is included only after three weeks. The medical evidence relied upon by the applicant is deficient for the reasons already cited and does not allow me to properly consider the factors listed in s 9A(2) of the Act.
The applicant’s case is based upon conflicting evidence, a lack of medical evidence of substance and is generally muddled about how the injury is said to have occurred. No cogent explanation has been given as to how a right-side contact by a vehicle might cause left shoulder injury without an associated impact with some other object, which has not been contended to have happened. The reference to twisting and turning is vague and does not assist in resolving the conundrum.
I cannot be satisfied, based on the evidence, that the workplace incident on 21 December 2023 was a substantial contributing factor to, and so did not cause, the applicant’s left shoulder condition.

SUMMARY

The applicant was involved in an incident at work on 21 December 2023 when a vehicle came into contact with the right-side of his body. I am not reasonably satisfied the incident caused the applicant’s left shoulder condition. This means there must be an award for the respondent.

[2024] NSWPIC 680

6 December 2024