Hall v Opal Healthcare

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hall v Opal Healthcare [2025] NSWPIC 516
APPLICANT:	Barry Victor Hall
RESPONDENT:	Opal Healthcare
MEMBER:	John Turner
DATE OF DECISION:	29 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; reasonably necessary; material contribution; incapacity; no current work capacity and suitable employment; sections 4, 32A, 33, 37, 60, and Schedule 3 of clause 9 referred to; Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, Murphy v Allity Management Services Pty Ltd, Rose v Health Commission (NSW), Elliot v Franklins Pty Limited, Bartolo v Western Sydney Area Health Service, Diab v NRMA Limited, and Wollongong Nursing Home Pty Ltd v Dewar applied; Held – the applicant did not sustain injury to his right hip, neck and lower back as alleged; there is an award for the respondent in respect to injury to the right hip, neck and lower back; the right shoulder replacement surgery is reasonably necessary as a result of the injury sustained at work; pursuant to section 60 the respondent is to pay the costs of and associated with right shoulder replacement surgery; the applicant has had no current work capacity and continues to have no current work capacity; the respondent is to pay the applicant pursuant to section 37.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. That the applicant did not sustain injury to his right hip, neck and lower back on 22 August 2023 as alleged. 2. There is an award for the respondent in respect to injury to the right hip, neck and lower back. 3. That the right shoulder replacement surgery proposed by Dr Macgroarty is reasonably necessary as a result of the injury sustained at work on 22 August 2023. 4. Pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the respondent is to pay the costs of and associated with right shoulder replacement surgery as recommended by Dr Macgroarty. 5. That the applicant has had no current work capacity since 7 January 2025 and continues to have no current work capacity. 6. The respondent is to pay the applicant pursuant to s 37 of the 1987 Act: (a) $1,465.94 per week from 7 January 2025 to 31 March 2025, and (b) $1,472.24 per week from 1 April 2025 to date and continuing subject to indexation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Barry Victor Hall (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury to his right upper extremity, right lower extremity, right hip, lower back and neck when on 22 August 2023, whilst in the course of his employment with Opal Healthcare (respondent), he tripped and fell whilst walking down a hallway.
The applicant seeks payment of weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) from 7 January 2025 to date and ongoing. The applicant also seeks pursuant to s 60 of the 1987 Act that the respondent pay the costs of and incidental to right shoulder replacement surgery.
It is the applicant’s evidence that on or about 22 August 2023 whilst in the course of his employment he was walking down a hallway when his shoe became caught on the floor causing him to lose balance and fall forward striking the right side of his body on a wall before landing heavily on the ground. It is the applicant’s evidence that he experienced immediate severe pain in his right upper extremity, right hip, right lower extremity, lower back and neck. The applicant was helped to an office where the incident was reported.
The respondent does not dispute that the applicant sustained injury to his right shoulder. The respondent does however dispute that the applicant sustained injury to his neck, lower back and right hip.
The applicant was involved in a motorcycle accident in or about 2002 in which he sustained injury to his pelvis and lumbar spine. It is the applicant’s evidence that he made a full recovery from these injuries and continued to perform his daily work and domestic activities without issue.

Following the injury at work the applicant was off work for a time before returning to work on light duties. It is the applicant’s evidence that he ceased work in or about November 2024 as the condition of his right upper extremity, right hip, right lower extremity, lower back and neck had deteriorated.
It is the applicant’s evidence that he continues to experience severe pain, discomfort and restricted mobility in his right upper extremity, right hip, right lower extremity, lower back and neck.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    section 4 of the 1987 Act - injury (including main contributing factor) to the neck, right hip and lower back;
(b)    section 9A of the 1987 Act – whether employment was a substantial contributing factor to the alleged injury to the neck, right hip and lower back,
(c)    section 33 of the 1987 Act - capacity/incapacity for work; and
(d) section 60 of the 1987 Act - whether the proposed surgery is reasonably necessary as a result of the injury.
The respondent does not dispute injury to the right shoulder but does dispute the nature of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
2 September 2025. Mr Josh Beran, counsel, instructed by Mr Claudio Meireles, solicitor, appeared for the applicant, who was present. Mr David Saul, counsel, instructed by Mr Alex Mileski, solicitor, appeared for the respondent. The proceedings were conducted on
MS Teams. 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to Application to Lodge Additional Documents lodged on behalf of the respondent dated 28 August 2025.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Injury

The applicant alleges, and it is his evidence that he sustained injury to his right shoulder, right hip, lower back and neck on 22 August 2023 when he tripped and fell whilst walking down a hallway whilst in the course of his employment. The respondent does not dispute that an injury to the right shoulder was sustained. The respondent however does dispute that the applicant sustained injury to his right hip, lower back and neck.
The applicant bears the onus of proving injury to his right hip, lower back and neck on the balance of probabilities. Causation is determined on the facts through a commonsense evaluation of the causal chain.[1]
[1] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

The evidence

It is the applicant’s evidence that he felt an immediate onset of severe pain in his right upper extremity, right hip, right lower extremity, lower back and neck as a result of the incident on 22 August 2023. It is also the applicant’s evidence that he complained to his general practitioner (GP), Dr John Follent, a couple of days after the incident of severe pain, discomfort and restricted mobility in his right upper extremity, right hip, right lower extremity, lower back and neck.

The clinical records of the Tweed Banora Medical Centre record that the applicant attended on Dr Follent on 24 August 2023 with a history of the fall at work and complaining that he hurt his right thigh, numbness in lower leg, pain under his right breast with pleuritic pain and reduced mobility of the right shoulder.
The doctor’s observations of his examination of the applicant include that he was mildly tender under his right breast, that there was normal air entry, that there was “nil of note” in respect to the right leg but did observe that the applicant was limping. The doctor requested X-rays of the chest, ribs (right side), right shoulder and right hip as well as an ultrasound of the right shoulder.[2]
[2] ARD pp. 144-145.
On 25 August 2023 Dr Kulatunge reported to Dr Follent in respect to X-rays of the chest, right ribs, right shoulder and right hip noting a history of the fall at work and pain under the right breast which was worse on breathing and shoulder pain with reduced mobility. Relevantly the doctor identified in respect to the right hip mild arthritic changes.[3]
[3] ARD pp. 56-57.
The applicant next consulted Dr Follent on 30 August 2023 and 6 September 2023. The clinical notes for those attendances do not contain any mention of the right hip, lower back or neck. However, the clinical notes for the consultations are extremely brief and contain little reference to the applicant’s symptoms.
On 13 September 2023 the applicant again consulted Dr Follent. The record of the consultation records that he was “still suffering but more legs and joints now as he "got cold" on Sunday”. The doctor questioned whether the applicant had reactive arthritis and if so whether it was related to the fall. The clinical record does not contain any direct mention of the right hip nor any mention of the neck or lower back.[4]
[4] ARD p. 143.
On 20 September 2023 Dr Follent observed that it “sounds like” the applicant had some viral arthritis as his knees and feet had swelled and were sore but had settled by the time of the consultation. The doctor noted that inflammatory markers were up and that the applicant had described getting cold that Sunday.[5]
[5] ARD p. 143.
On 20 September 2023 Dr Follent also completed a questionnaire on behalf of the respondent in respect to the fall at work recording that the applicant hurt his thigh, leg, ribs and right shoulder. The doctor provided a diagnosis of subacromial bursitis and “other soft tissue injuries.”[6] The doctor does not mention any injury to the neck or lower back nor make any direct reference to any injury having been sustained to the right hip.
[6] Reply pp. 20-21.
The applicant next attended on Dr Follent on 18 October 2018. The clinical record of the attendance records little more than that the applicant attended for a workcover certificate.[7]
[7] ARD p. 143.
On 15 November 2023 the applicant again attended on Dr Follent who noted that the applicant’s right shoulder pain had been stirred up lifting during physiotherapy.[8]
[8] ARD p. 142.
The applicant again attended on Dr Follent on 13 December 2023 however the sole purpose of the attendance appears to have been to obtain a workcover certificate.[9]
[9] ARD p. 142
On 10 January 2024 there is the first mention of the applicant’s neck following the fall at work when Dr Follent records that the applicant had hurt his neck without elaborating as to how the injury was sustained. However, the doctor did record “I think related to present injuries”. The clinical record contains no mention of the applicant’s right hip, and his back is only referred to in respect to bilateral renal angle pain.[10]
[10] ARD p. 142.
On 12 January 2024 Dr Follent noted that microbiology was “all clear”. This appears to be related to a test requested by the doctor following the consultation on 10 January 2024 when the applicant had complained of bilateral renal angle pain. The doctor went on to note “back possibly related to fall and mechanical problems…will check with physio and I can do X-rays when needed.”[11]
[11] ARD pp. 141-142.
An Allied health recovery request completed by Madison Sumsion of Active Life Physiotherapy on 13 February 2024 records in addition to the applicant’s right shoulder problems that he had a reduced range of motion of his neck and that he had been getting left sided neck pain.[12]
[12] ARD p. 95.
On 7 March 2024 Dr Follent recorded “[a]fter MRI to review lwer back and neck”. The record is unclear as to whether the applicant was seeking the MRI or whether the doctor was wishing to obtain the MRI which may have required approval from the insurer.[13]
[13] ARD p. 140.
On 19 June 2024 Dr Vibhudesh Muthukumaru, who was covering for Dr Follent, noted that the applicant was having left sided neck pain only upon movements.
On 21 August 2024 Dr Kevin Leong reported on an MRI scan of the cervical spine noting by way of history the work fall and neck pain which was worse when turning to the left.[14]
[14] ARD pp. 151-152.
On 29 October 2024[15] Alex Margan, a physiotherapist with Murwillumbah Physiotherapy, reported to Dr Follent that the applicant reported experiencing right shoulder pain and limited function since the fall at work. The physiotherapist reported a history that the applicant had injured his neck in the fall and reported ongoing neck pain and stiffness since then.
[15] ARD p. 62.
The clinical records of the Tweed Banora Medical Centre do record on 9 January 2025 chronic conditions “[n]eck and lower back due to shoulder injury”. However, the entry was not made by the doctor but rather by a registered nurse for administration purposes.[16]
[16] ARD pp. 129-130.
Dr Paul Robinson, orthopaedic surgeon, provided forensic reports to the respondent. The doctor having examined the applicant on 17 June 2024 reported on 27 June 2024[17] that the applicant reported experiencing cervical pain, right shoulder pain as well as lower spinal pain at the time of the fall. The doctor did not report any history of injury to the right hip.
[17] Reply pp. 6-14.
Dr Robinson provided a supplementary forensic report to the respondent dated
[18] Reply pp. 18-19.
7 November 2024[18] in which the doctor advised that the applicant had not disclosed on examination any right hip problems. In the opinion of Dr Robinson “[a]ny injury” which the applicant sustained to his right hip in the fall at work would have been soft tissue in nature irritating underlying mild arthritic change but not contributing or causing such. In the opinion of the doctor any right hip injury had resolved.
Dr Roger Pillemer, orthopaedic surgeon, examined the applicant on 14 April 2025 and provided a forensic report to the applicant dated 25 June 2025.[19] The doctor recorded a history of the fall at work and that the applicant developed discomfort in his neck, right shoulder region, back and right leg. The doctor recorded that the applicant had suffered from ongoing problems with his right shoulder and neck since the fall at work. The doctor did not record a history of any injury to the right hip.
[19] ARD pp. 49-54.
Relevantly Dr Pillemer is of the opinion that the accident at work aggravated previously asymptomatic degenerative changes in the cervical spine. The doctor did not provide any diagnosis in respect to any injury to the lower back or right hip.

Findings and reasons

The evidence in my view does not support that the applicant sustained injury to his right hip, lower back or neck in the fall at work on 22 August 2023.
It is the applicant’s evidence that he felt an immediate onset of “severe” pain in his right upper extremity, right hip, right lower extremity, lower back and neck as a result of the incident on 22 August 2023. It is also the applicant’s evidence that he complained to his general practitioner (GP), Dr John Follent, a couple of days after the incident of severe pain, discomfort and restricted mobility in his right upper extremity, right hip, right lower extremity, lower back and neck.
Despite the applicant’s evidence that he was in “severe pain” and that he complained to
Dr Follent of the injuries the doctors clinical record of the applicant’s consultation on
24 August 2023 does not record any mention of the lower back or neck.
Whilst the doctor did request an X-ray of the right hip the clinical note of the consultation records that the applicant complained that he had hurt his right thigh and that he had numbness in his lower leg and the doctor observed the applicant to be limping. The doctor did not record that any injury had been sustained to the right hip in circumstances where it is the applicant’s evidence that the pain was “severe”. From that point on there is no mention at all of the right hip in the clinical records. There is also no evidence from Dr Follent as to his reasoning in requesting the X-ray of the hip and no treatment has been provided for any injury to the hip.
The subsequent clinical records of Dr Follent also initially record no mention of the lower back or neck.
On 13 September 2023 Dr Follent does record that the applicant was “still suffering but more legs and joints now as he ‘got cold’ on Sunday” and the doctor questioned whether the applicant had reactive arthritis and if so whether it was related to the fall. This clinical record needs however to be read in conjunction with the clinical record of 20 September 2023 where Dr Follent observed that it “sounds like” the applicant had some viral arthritis as his knees and feet swelled and were sore but had settled by the time of the consultation with the doctor noting that the inflammatory markers were up and that the applicant had described getting cold that Sunday. The applicant’s complaints on 13 September 2023 therefore do not appear to relate to his right hip but to multiple joints and the symptoms seem to relate to a virus rather than to any injury.
Significantly when Dr Follent is asked to provide details in respect to the mechanism of injury and provide a diagnosis in regard to the fall at work on 22 August 2023, the doctor on
20 September 2023 reports that the applicant hurt his thigh, leg, ribs and right shoulder. The doctor provided a diagnosis of subacromial bursitis and “other soft tissue injuries.” The doctor does not mention any injury to the neck or lower back nor make any direct reference to any injury having been sustained to the right hip despite the applicant having by this time consulted the doctor on five occasions and the doctor having requested an X-ray of the right hip.
The first mention of any neck complaints in the clinical records does not occur until
10 January 2024, more than four months after the fall at work. At that time Dr Follent records that the applicant had hurt his neck without elaborating as to how the injury was sustained however the doctor did record “I think related to present injuries”.
Whilst one would not expect a clinical record to necessarily contain reasoning, the applicant bears the onus of proving injury. There is nothing from Dr Follent to explain why he thought the neck symptoms were related to the incident on 22 August 2023 or how they may be related, in circumstances where no neck complaints have been recorded since the fall and the doctor had reported on the injuries sustained without any reference to any injury to the neck.
Furthermore, it is the applicant’s case that he sustained injury to his neck on 22 August 2023 in the fall. The applicant does not allege that any neck condition is a consequential condition. The clinical record is ambiguous as to whether the doctor thinks that the relationship to the fall is a direct one or consequential.
Whilst Dr Follent does on 10 January 2024 refer to the applicant’s back, he does so in the context of renal angle pain. On 12 January 2024 following microbiology testing which was “all clear”, Dr Follent noted that the back symptoms were “possibly related to the fall and mechanical problems”. This is a possibility which the doctor never elaborates on. The doctor does not explain how the back symptoms may be related to the fall in circumstances where no previous lower back complaints have been recorded and again where the doctor has reported on the injuries suffered in the fall without mention of the lower back. As is the case with the neck the applicant does not allege that any back condition is a consequential condition. The clinical record is ambiguous as to whether the doctor thinks that the relationship to the fall is a direct one or consequential.

The first history of the applicant sustaining injury to his neck and lower back in the fall at work appears to have been recorded by Dr Robinson who examined the applicant at the request of the respondent on 17 June 2024, almost 10 months after the fall. Dr Robinson did not take a history of injury having been sustained to the right hip. In my view the weight of evidence does not support the history taken by Dr Robinson that the applicant did sustain injury to his neck and lower back in the fall.
Dr Pillemer on 14 April 2025, over a year and a half after the accident, takes a history of the applicant developing neck, back and right leg symptoms with the fall however the doctor does not take a history of injury to the right hip and provides no diagnosis in respect to the injury sustained to the lower back. Dr Pillemer is of the opinion that the accident at work aggravated previously asymptomatic degenerative changes in the cervical spine.
I do not accept the opinion of Dr Pillemer. The opinion of Dr Pillemer is based on the applicant having experienced discomfort in his neck, back and right leg since the fall. The evidence in my view does not support that the applicant did experience such discomfort.
Whilst Dr Robinson did provide a diagnosis in respect to injury to the right hip he only did so on a theoretical bases noting that the applicant had not reported any injury to him at the time of his examination.
To be satisfied on the balance of probabilities that the applicant sustained injury to his right hip, lower back and/or neck in the fall at work on 22 August 2023 I must feel an actual persuasion of the existence of those facts[20] and I do not. The initial lack of any recorded report of injury to the right hip, lower back and neck in the contemporaneous clinical records and then the ongoing continuous failure of there to be any recorded report of injury to the neck and lower back until the applicant attends on Dr Robinson weighs against the applicant having sustained injury. Neither Dr Robinson nor Dr Pillemer took a history of injury having been sustained to the right hip. Dr Pillemer on whom the applicant relies also provides no diagnosis in respect to the right hip. Whilst Dr Robinson does provide a diagnosis he only does so on a theoretical basis assuming that an injury had been sustained.
[20] Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
The applicant has not discharged his onus, and I find for the above reasons that the applicant did not sustain injury to his right hip, neck and lower back on 22 August 2023.

Right shoulder replacement surgery

The applicant seeks pursuant to s 60 of the 1987 Act that the respondent pay the costs of and incidental to right shoulder replacement surgery recommended by Dr Kelly Macgroarty.
The respondent does not dispute that the applicant sustained injury to his right shoulder in the fall at work on 22 August 2023. In the respondent’s submission the proposed surgery is needed due to an underlying degenerative condition and not due to the injury sustained on 22 August 2023.
Section 60(1) of the 1987 Act states:
“(1) 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).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
In terms of whether a proposed treatment is reasonably necessary as a result of the
work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] …a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
The evidence supports, and the applicant does not dispute, that the applicant has a degenerative arthritic condition of the right shoulder which was present prior to the injury on 22 August 2023.
Three days after the injury was sustained on 22 August 2023 a CT scan and X-ray was performed of the right shoulder. Dr Kulatunge who reported on the scans identified subacromial bursitis and impingement with abduction, degenerative changes in the acromioclavicular joint, osteoarthritic changes in the glenohumeral joint as well as asymmetric joint space narrowing and osteophytic protrusion in the humeral head and the glenoid.

The evidence

It is the applicant’s evidence that he does not recall suffering injuries to his right shoulder or making any complaints to any treating doctors in respect to his right shoulder prior to the subject injury on 22 August 2023. It is also the applicant’s evidence that prior to injury on
22 August 2023 he was able to engage in physical sporting and work-related activities.
The clinical records of the Tweed Banora Medical Centre which commence on
9 January 2019 record no complaints in respect to the right shoulder prior to sustaining injury on 22 August 2023. Following the injury on 22 August 2023 the clinical notes contain regular references to the right shoulder condition.
On 7 June 2024 Dr Macgroarty reported to the respondent that the applicant had suffered an aggravation of right shoulder acromioclavicular joint osteoarthritis with a background of longstanding glenohumeral joint arthritis.[21]
[21] Reply pp. 23-26.
On 26 July 2024 Dr Macgroarty reported to Dr Follent that a cortisone injection into the applicant’s right acromioclavicular joint had not provided much pain relief which in the doctor’s opinion suggested that the glenohumeral joint osteoarthritis is the primary cause of the symptoms. The doctor observed that the applicant has quite severe glenohumeral joint arthritis and the doctor was not surprised by the limited range of movement which in the doctor’s opinion is due to the arthritis rather than a “frozen shoulder”.[22]
[22] ARD p. 121.
On 13 September 2024 Dr Macgroarty reported to Dr Follent that a cortisone injection into the right glenohumeral joint took 80% of the pain away over a few weeks. This in the doctor’s opinion confirmed that the glenohumeral joint arthritis is the primary source of pain. The doctor observed that the applicant was "not managing" and that the next step was to consider total shoulder replacement. The doctor was not sure if workcover would support the claim given that the pathology is longstanding degenerative pathology.[23]
[23] ARD p. 119.
Dr Macgroarty responded to a questionnaire from the respondent dated 13 September 2024 that the proposed surgery is to treat longstanding glenohumeral head joint osteoarthritis, “unlikely work related”. The doctor recommended clarification from an independent medical expert.[24]
[24] Reply pp. 27-28.
The respondent relies on the opinion of Dr Robinson. Dr Robinson in his initial forensic report dated 27 June 2024 was of the opinion that the applicant had in the fall at work aggravated underlying pre-existing problems in his right shoulder which continued to cause the symptoms he was experiencing and the restriction of movement.
In the doctor’s opinion there was no evidence of any pathology which required immediate or further investigation and conservative treatment should continue.
Dr Robinson provided a supplementary forensic report to the respondent dated
[25] Reply pp. 15-17.
9 October 2024.[25] In the opinion of Dr Robinson the proposed surgery is required to treat the underlying pre-existing arthritis. The doctor believed that the surgery would have been required in the future for the pre-existing arthritic change and that the fall at work exacerbated the symptoms bringing the requirement for surgery forward. The doctor did not think that conservative treatment would assist but would rather delay any improvement which can occur. In the opinion of Dr Robinson there is no appropriate alternative surgical option. In the doctor’s opinion the work-related injury had not resolved, and the applicant requires the proposed surgery.
Dr Robinson in an undated supplementary forensic report reportedly received by the respondent on 17 October 2024 reported that there has been an exacerbation of underlying pre-existing arthritis. This resulted in pain due to the pre-existing arthritic condition.
Dr Robinson agreed with Dr Macgroarty’s opinion of 13 September 2024 that the proposed surgery is for longstanding arthritis affecting the glenohumeral joint and it was unlikely that there is any work-related condition associated with such requirements.
In the opinion of Dr Robinson any exacerbation caused by the incident on 22 August 2023 had ceased and he was now experiencing symptoms related to this underlying pre-existing problem.
The applicant relies on the opinion of Dr Pillemer. In the opinion of Dr Pillemer, the injury at work aggravated degenerative changes in the right shoulder. In the doctor’s opinion the fall was the main contributing factor to the development of the shoulder symptoms. The doctor noted that the applicant was entirely asymptomatic prior to his injury and very active with all of his sporting and recreational activities.
In the opinion of Dr Pillemer if not for the fall the applicant “might well have remained asymptomatic and fully active for a considerable period of time.” In the doctor’s opinion any need for shoulder replacement surgery had been brought on much earlier than might otherwise have been the case.
The doctor noted that the applicant was very keen to have something done as he is very restricted at the present time, having been very fit, healthy and active previously. At this stage apart from avoiding activities that aggravate his symptoms and taking his oral medications Dr Pillemer did not feel that there was much more that could be suggested for him.
In the opinion of Dr Pillemer in the absence of the proposed surgery, the applicant will have ongoing problems with his right shoulder in the long-term.
In the opinion of Dr Pillemer, the proposed right shoulder replacement surgery recommended by Dr Macgroarty is reasonably necessary.

Findings and reasons

I am of the view that the right shoulder replacement surgery proposed by Dr Macgroarty is needed “as a result of” the injury sustained at work on 22 August 2023.
The medical consensus is that the surgery is required due to the right shoulder degenerative arthritis. Whilst the shoulder was arthritic prior to the fall at work on 22 August 2023 the evidence supports that it was asymptomatic. The applicant’s evidence is to that effect and that evidence is supported by the clinical records of the applicant’s GP which do not record any complaints in respect to the right shoulder prior to the fall at work.
There does not appear to be any dispute that the applicant suffered an aggravation and/or exacerbation of the underlying degenerative changes in his right shoulder in the subject fall at work. The applicant’s complaints to his GP in respect to his right shoulder commence following the fall and Dr Pillemer, Dr Robinson and Dr Macgroarty all agree.
In the opinion of Dr Robinson, the aggravation suffered in the fall at work has resolved. In the applicant’s submission the opinion is a bald assertion which is not supported by the evidence. I accept the applicant’s submission.
Dr Robinson does not provide any reasons for his opinion. This is in circumstances where at no time has the applicant experienced a cessation of symptoms and where the doctor had expressed the opinion in his report of 9 October 2024 that the work-related injury had not resolved and that the need for the proposed surgery had been brought forward in time as a result of the exacerbation suffered in the fall. The change in the doctor’s opinion approximately one week later is not explained especially in circumstances where the doctor had not undertaken a further examination of the applicant.
For the above reasons I do not accept the opinion of Dr Robinson that the exacerbations had ceased. In circumstances where the applicant was asymptomatic prior to the injury and has continued to be symptomatic since the fall without any period of cessation of symptoms
I prefer the opinion of Dr Pillemer.
The respondent bears the onus of proving that the aggravation has ceased[26] and it has not discharged that onus.
[26] Elliot v Franklins Pty Limited [2022] NSWPICPD 38 at 132.
Whilst Dr Macgroarty responded to a questionnaire from the respondent dated
[27] Murphy.
13 September 2024 that the proposed surgery is to treat longstanding glenohumeral head joint osteoarthritis, “unlikely work related” and Dr Robinson agrees that the proposed surgery is for longstanding arthritis affecting the glenohumeral joint and it was unlikely that there is any work-related condition associated with such requirements. The test to be applied is whether the work injury materially contributes to the need for the surgery. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment.[27]
The applicant concedes that the surgery is required to treat the underlying arthritic condition. The applicant however submits that the work injury materially contributes to the need for the surgery as it has exacerbated the arthritic condition making it symptomatic and bringing the need for the surgery forward. I accept the applicant’s submission.
The surgery is required due to the shoulder becoming symptomatic. I have already found that the aggravation suffered in the fall at work on 22 August 2023 has not resolved. In the opinion of Dr Pillemer, the need for the shoulder replacement surgery has been brought on much earlier than might otherwise have been the case. This opinion was shared by
Dr Robinson however Dr Robinson’s opinion is subsequently cut across by his view that the aggravation had ceased. Having found that the aggravation has not ceased I prefer and accept the opinion of Dr Pillemer.
For the above reasons I find that the proposed surgery is needed as a result of the injury sustained to the right shoulder on 22 August 2023.
Section 60 of the 1987 Act requires that the treatment is “reasonably necessary” as a result of injury.
Burke CCJ considered the expression “reasonably necessary”, then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) relating to treatment expenses, in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
The “reasonably necessary” test was also considered in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of “reasonably necessary” as follows:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

I now turn to a consideration of the factors referred to in Diab.
Dr Pillemer, Dr Macgroarty and Dr Robinson all agree that the proposed surgery is appropriate. There does not appear to be any alternative treatment. Dr Robinson is of the opinion that conservative treatment would not assist but would rather delay any improvement which can occur and that the proposed surgery is the only surgical option. In the opinion of Dr Pillemer in the absence of the proposed surgery, the applicant will have ongoing problems with his right shoulder in the long-term. The costs of the type of surgery proposed are regularly paid at workers compensation and there is nothing extraordinary or unusual about those costs which would weight against the surgery proposed. There is no dispute on the medical evidence as to the effectiveness of the proposed treatment and that it is an accepted form of treatment.
For the above reasons I find that the right shoulder replacement surgery is reasonably necessary as a result of the injury sustained at work on 22 August 2023.

Incapacity

The applicant seeks payment of weekly compensation pursuant to s 37 of the 1987 Act from 7 January 2025 ongoing on the basis of him having no capacity for work.
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note.
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Clause 9 of Schedule 3 of the 1987 Act defines “current work capacity” and “no current work capacity” and states:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)    An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)    An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Following the fall on 22 August 2023 the applicant did return to work with the respondent after a period off work. He returned to work on restricted duties and continued on restricted duties before ceasing work in or about November 2024. Prior to ceasing duties, the applicant was certified with a capacity for some type of employment working three hours per day, three days per week with a lifting/pushing/pulling restriction of 5kg.
Dr Robinson provided a supplementary forensic report to the respondent dated
[28] Reply pp. 15-17.
9 October 2024.[28] Dr Robinson reported that the applicant found that working three hours per day, three days a week was his maximum at that stage, and the doctor did not believe he would be able to return to increased work duties because of the lifting and stress which would be required through the shoulder, such as was undertaken. Initially, the doctor had believed that the applicant would be able to return to work, but the doctor observed that this did not appear possible according to Dr Macgroarty’s statements.
Dr Robinson in an undated supplementary forensic report reportedly received by the respondent on 17 October 2024 reported that he believed that the applicant would have problems in returning to full activities as an assistant in nursing with the lifting involved in the course of his occupation.
In the opinion of Dr Pillemer, the applicant is not fit for any employment using his right arm. In the opinion of Dr Pillemer, he is “certainly” unable to engage in his pre-injury duties.
The evidence supports that the applicant as result of the injury to his right shoulder does not have the capacity to return to his pre-injury duties.
Suitable employment is defined in s 32A of the 1987 Act as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”

The evidence

It is the applicant’s evidence that he continues to experience severe pain, discomfort and restricted mobility in his right upper extremity, right hip, right lower extremity, lower back and neck.
On 29 October 2024[29] Alex Margan, a physiotherapist with Murwillumbah Physiotherapy, reported to Dr Follent that the applicant reported experiencing right shoulder pain and limited function since the fall at work. The applicant had also injured his neck in the fall and reported ongoing neck pain and stiffness since then.
[29] ARD p. 62.
The physiotherapist recorded that the applicant reported constant right shoulder pain as well as heaviness and stiffness in his shoulders and neck. The applicant was working light duties three days a week, three hours per day. The applicant reported that he would be unable to work much more than this due to the level of the shoulder and neck pain he was experiencing.
Dr Follent in a series of Certificates of Capacity has certified the applicant with no current work capacity for any employment from 6 January 2025 to 21 July 2025.
Dr Pillemer in his forensic report dated 25 June 2025[30] recorded a history that the applicant had suffered from ongoing problems with his right shoulder and neck since the fall at work.
[30] ARD pp. 49-54.
The doctor records that the applicant performed the restricted duties with the respondent with considerable difficulty until November 2024 when he was put off work, having been told that there were no further restricted duties. The applicant had not worked since.
Dr Pillemer reported that the applicant’s main concern was with his right shoulder region where he felt that the symptoms were getting worse with time. The discomfort extended from the neck down to the shoulder with no referred pain down his right arm.
The applicant also complained of discomfort in his cervical region posteriorly and on both sides. The symptoms being present on a daily basis and aggravated by any excessive movements of his neck and are improved by resting.
In the opinion of Dr Pillemer, the applicant is not fit for any employment using his right arm and is “certainly” unable to engage in his pre-injury duties.
Dr Robinson in his forensic report to the respondent dated 27 June 2024[31] reported that on examination the applicant complained of cervical pain as well as right shoulder pain. The doctor reported that the applicant was unable to sleep for more than three to five hours without waking due to the cervical and right shoulder pain. The applicant also complained of low back pain in the L5/S1 region without radiation.
[31] Reply pp. 6-14.
The doctor noted that at the time the applicant was working three hours per day, three days per week with a 5kg lifting restriction. The applicant reported that he found that he was fairly exhausted by the end of this period.
In the doctor’s opinion the applicant should gradually increase his work capacity if possible, depending on symptoms and hopefully will return to full function within 12 months of the injury. The doctor believed that the applicant should be able to increase his work hours from three hours to four to five hours and then increase his days per week over a period of perhaps six weeks to see if he can return to his pre-injury duties with the same employer. This would depend on the applicant’s symptoms as he increased his hours. If he was unable to do so he could then involve himself in a more sedentary position. The doctor would change his opinion as to the applicant’s capacity and being provided with further information from the applicant’s treating surgeon.
Dr Robinson in his supplementary forensic report to the respondent dated 9 October 2024[32] reported that the applicant found that working three hours per day, three days a week was his maximum at that stage. The doctor did not believe he would be able to return to increased work duties because of the lifting and stress which would be required through the shoulder. Initially, as noted above the doctor had believed that he would be able to return to work, but the doctor observed that this did not appear to be possible according to
[32] Reply pp. 15-17.
Dr Macgroarty’s statements.

Dr Robinson in his undated supplementary forensic report reportedly received by the respondent on 17 October 2024 reported that he believed the applicant would have problems in returning to full activities as an assistant in nursing with the lifting involved.[33]
[33] RALAD pp. 1-2.

Findings and reasons

I will now consider the factors to have regard to in considering “suitable employment” as detailed in s 32A of the 1987 Act.
In considering the incapacity I have previously found that the applicant did not sustain injury to his neck, lower back or right hip. The applicant also does not rely on any psychological condition.
Prior to ceasing duties with the respondent, the applicant was working three hours per day three days per week performing restricted duties. With a 5kg restriction on lifting, pushing and pulling. That restriction appears to be as a result of the shoulder injury. Whilst it is the applicant’s evidence that he ceased working as the condition of his right upper extremity, right hip, lower back and neck deteriorated. Dr Robinson also recorded, having examined the applicant whilst he was still performing the restricted duties, that the restricted duties left him fairly exhausted. Dr Robinson did not believe that the applicant would be able to return to increased work duties because of the lifting and stress which would be required through the shoulder. Dr Pillemer is of the opinion that the applicant is not fit for any employment using his right arm and is “certainly” unable to engage in his pre-injury duties.
The duties which the applicant performed with the respondent were restricted both in terms of the hours undertaken and the duties performed. The evidence does not support that the applicant could return to his unrestricted pre-injury duties on the reduced hours of three hours per day, three days per week. The restrictions placed on the applicant as a result of the right shoulder injury are incompatible with those duties.
The applicant has worked for the respondent as an assistant in nursing since in or about April 2013 and is 61 years of age. The applicant left school after completing year 10 at high school. He is a certified butcher, duties which are manual in nature involving the lifting, storing and cutting of meat which would appear to be now outside the applicant’s capacity due to the shoulder injury. The only other qualifications which the applicant has is a Certificate III in Assistant in Nursing which as previously discussed is an occupation
which the applicant does not have the capacity to perform due to his shoulder injury.
Mr Saul submitted on behalf of the respondent that the applicant could perform driving duties such as Uber driver or working as a courier. Whilst the Certificates of Capacity indicate that there are no restrictions on the applicant’s ability to drive, the role of driving passengers often involves the lifting and loading of luggage which the applicant does not have the capacity to perform.
Whilst the applicant may be able to deliver individual packages as a courier driver the vehicle would need to be loaded with the packages and parcels which he would be delivering. This would not be done one package at a time. From time-to-time reorganising of the packages and parcels within the vehicle would also be required so that they could be accessed as the deliveries occurred which would require lifting, pushing and pulling. All duties which the applicant could not perform due to his shoulder injury.
Mr Saul also submitted that the applicant could perform clerical duties. However, there is no evidence that the applicant has any skills, training or experience in clerical work.
There is within the evidence in this matter no vocational assessment or other evidence identifying any suitable occupation which the applicant could perform given the restrictions which result from the injury to the right shoulder.
In Mr Beran’s submission there is no real job which the applicant can perform. Suitable employment must be employment that is real and potentially available in the open labour market at large.[34] For the above reasons I accept the applicant’s submission that there is no such job.
[34] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
For the above reasons I find that the applicant has and has had no current work capacity since 7 January 2025.
The parties have proceeded on the pleadings in respect to the applicant’s pre-injury average weekly earnings (PIAWE). Both parties have provided wages schedules in which the indexed PIAWE from 7 January 2025 to 31 March 2025 is $1,832.42 and $1,840.30 from
1 April 2025.
Having found that the applicant has had from 7 January 2025 no current work capacity and continues to have no current work capacity, the applicant is entitled pursuant to s 37(1) of the 1987 Act to weekly compensation at 80% of his PIAWE as indexed. I therefore find that the applicant is entitled pursuant to s 37 of the 1987 Act to the following:
(a) $1,465.94 per week from 7 January 2025 to 31 March 2025, and
(b) $1,472.24 per week from 1 April 2025 to date and continuing subject to indexation.

[2025] NSWPIC 516

29 September 2025