Hawkins v Active Vac Pty Ltd ATF the Active Vac Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hawkins v Active Vac Pty Ltd ATF the Active Vac Trust [2023] NSWPIC 436
APPLICANT:	Jamie Hawkins
RESPONDENT:	Active Vac Pty Limited ATF The Active Vac Trust
MEMBER:	Gaius Whiffin
DATE OF DECISION:	31 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to the right shoulder and neck, together with a consequential condition to the left shoulder alleged to result from the right shoulder injury; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports and other treatment records, as well as claim correspondence; consideration of whether the applicant sustained a consequential injury to his left shoulder resulting from the accepted injury which he sustained on 15 July 2020; Kumar v Royal Comfort Bedding Pty Ltd, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Drca v KAB Seating Systems Pty Ltd considered; Held – the applicant has sustained a consequential injury to his left shoulder as a result of the injury which he sustained on 15 July 2020; the determination of the applicant’s whole person impairment as a result of the injury will be remitted to the President for referral to a Medical Assessor (in relation to the body systems/parts: cervical spine, right upper extremity (shoulder), and left upper extremity (shoulder).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential injury to his left shoulder as a result of the injury which he sustained on 15 July 2020. The Commission orders: 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 15 July 2020; (b) body systems/parts: cervical spine, right upper extremity (shoulder), left upper extremity (shoulder), and (c) method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute, and attached documents (save for all copies of Dr Teoh’s report dated 23 June 2021); (b) the Reply lodged by the respondent, and attached documents (save for all copies of Dr Teoh’s report dated 23 June 2021); (c) the Application to Admit Late Documents lodged by the applicant and dated 16 June 2023, and attached documents; (d) the Application to Admit Late Documents lodged by the applicant and dated 4 July 2023, and attached documents, and (e) the Application to Admit Late Documents lodged by the respondent and dated 19 July 2023, and attached documents.

STATEMENT OF REASONS

BACKGROUND

Jamie Hawkins (the applicant) is 38-years-old. He was employed by Active Vac Pty Limited as trustee for the Active Vac Trust (the respondent) as a labourer, when he was injured on 15 July 2020.
The respondent has accepted that the injury arose out of or in the course of the applicant’s employment with it pursuant to s 4 of the Workers Compensation Act 1987 (1987 Act), as well as that his employment with it was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. It has made relevant payments to the applicant for weekly benefits compensation and for his expenses pursuant to s 60 of the 1987 Act.
The applicant now makes a claim for lump sum compensation in relation to the injury, pursuant to s 66 of the 1987 Act. The claim was made by letter dated 26 August 2022 and was based upon an assessment provided by Dr New of 43% whole person impairment. In making that assessment, the doctor assessed the applicant’s neck, his right shoulder, and his left shoulder.
The respondent (on 2 December 2022) issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant’s claim pursuant to s 66 of the 1987 Act, specifically denying liability for any left shoulder injury sustained on 15 July 2020, or sustained as a result or consequence of other injuries sustained on that date.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant requests that the Commission determine his entitlement pursuant to s 66 of the 1987 Act.
The dispute came before the Commission for a preliminary conference on 28 June 2023, when the respondent confirmed that it did not deny that the applicant sustained injuries to his right shoulder and neck on 15 July 2020. It confirmed that the only issue it was disputing was whether the applicant had sustained a consequential left shoulder injury as a result of his accepted injuries to his right shoulder and neck on that date.

ISSUES FOR DETERMINATION

The parties therefore agree that the following issue remains in dispute:
(a) did the applicant sustain a consequential injury to his left shoulder resulting from the accepted injury which he sustained on 15 July 2020.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference was held in the dispute before the Commission on 4 August 2023. On that occasion, Mr Misha Hammond of counsel appeared for the applicant instructed by Mr Malai. The applicant was present. Mr Tom Grimes of counsel appeared for the respondent, instructed by Ms Oliver. Ms Moujalli, from the respondent’s insurer, was also present. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The issue in dispute (see paragraph 7 above) was agreed upon between the parties, and it was also agreed that if the Commission determined that issue in favour of the applicant, there would be a referral to a Medical Assessor appointed by the President of the Commission for that assessor to assess the level of the applicant’s whole person impairment in relation to his right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine. It was further agreed that if the Commission determined the issue in favour of the respondent, there would be referral to a Medical Assessor appointed by the President of the Commission for that assessor to assess the level of the applicant’s whole person impairment in relation to only his right upper extremity (shoulder) and cervical spine. It was finally agreed that the relevant Medical Assessor would have access to the documents admitted into evidence at the arbitration hearing before me (see paragraph 12 below).
In relation to the documents to be admitted into evidence, I withdrew the report of Dr Teoh dated 23 June 2021 from all places where it appeared within the ARD or the respondent’s Reply (Reply). The report was withdrawn because in my opinion, reliance upon it by either party would have infringed cl 44 of the Workers Compensation Regulation 2016, as both parties were relying upon other forensic medical reports, and it was confirmed that the applicant had not been treated by a treating psychiatrist (the specialty of Dr Teoh).

EVIDENCE

Documentary evidence

The following documents were therefore in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents – save for all copies of Dr Teoh’s report dated 23 June 2021;
(b)    the Reply and attached documents – save for all copies of Dr Teoh’s report dated 23 July 2021;
(c)    the Application to Admit Late Documents lodged by the applicant (applicant’s first AALD) and dated 16 June 2023, and attached documents;
(d)    the Application to Admit Late Documents lodged by the applicant (applicant’s second AALD) and dated 4 July 2023, and attached documents, and
(e)    the Application to Admit Late Documents lodged by the respondent (respondent’s AALD) and dated 19 July 2023, and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

Much of the evidence presented relates to the applicant’s accepted injuries to his right shoulder and neck. I have considered all the evidence, but will be concentrating on reviewing the specific evidence relevant to the issue that I need to determine regarding the applicant’s left shoulder condition.
The applicant has provided three signed statements.
The first statement is dated 27 January 2023 and found at page 1 of the ARD.
The applicant says that prior to 15 July 2020, he considered himself to be “healthy, fit and highly capable at handling the physical demands of my employment”. He had not had any previous pain or restrictions affecting either shoulder or his neck.
He describes what occurred on 15 July 2020 as follows:
“I was pulling a beam with my right hand. I consequently felt an agonising stabbing pain in my neck, right shoulder, and right arm which hand caused me to fall back, injuring my right shoulder and neck”.
He did not initially take time off work, but continued working “with severe pain in my right shoulder, right arm and neck”. His work involved driving trucks, manoeuvring ladders, removing tiles from roofs, and changing over bats with new bats.
He eventually stopped working on 25 November 2020 due to unbearable pain in his right shoulder. He sought medical attention on 27 November 2020, and eventually came under the care of Dr Lim at Workers Doctors on 16 December 2020.
His statement details his initial treatment for his right shoulder condition and advises that for “the first 6-7 months my focus was obtaining treatment for my right shoulder as the left shoulder was not concerning me at the time”. He says however that between July 2020 and December 2020, he predominantly completed all daily activities (including dressing, driving, carrying groceries, and cleaning) by using his left shoulder in order to protect his right shoulder. He also says that he completed most of his employment duties with his left shoulder between 15 July 2020 and 25 November 2020. By late December 2020, he noticed that his “left arm wasn’t moving as freely and that I had intermittent niggles in my left shoulder”. He informed Dr Lim about his left shoulder restrictions.
The statement then details his further treatment for his right shoulder and neck conditions, without mentioning any significant treatment for his left shoulder condition, although he does mention that he underwent physiotherapy throughout 2022 during which he received treatment to both shoulders and to his neck.
He summarises his symptoms at the date when he signed his statement as follows:
“I currently experience a constant sharp and shooting pain in my right shoulder. This pain sends a burning sensation down my right arm that extended into my fingertips. The pain in my neck remains severe and restricted. When I move my neck, it feels like its tearing apart from the rest of my body. This pain is chronic and causes daily headaches. If I try and look upwards, I feel the onset of a severe pinching sensation which forces me to spend the rest of the day in bed. My left shoulder pain remains restricted with intermittent pain. This pain flares up after overuse and makes it difficult to complete daily tasks”.
Apart from his intermittent pain in his left shoulder, he also advises that he continues to suffer restricted movement in his left shoulder, pain in his left shoulder when sitting for extended periods, pain in his left shoulder when standing for extended periods, pain in his left shoulder when driving or sitting in a motor vehicle, pain in his left shoulder when bending, pain in his left shoulder when lifting heavy objects, pain in his left shoulder during colder weather, pain in his left shoulder when moving his left arm, loss of strength in his left arm, as well as weakness and numbness in his left hand.
The applicant then addresses his activities of daily living “prior to my injuries” and “since my injuries”. He describes that “since my injuries”, he struggles with physical activities, he cannot “kick the footy in the backyard”, he cannot teach martial arts, driving off-road is no longer enjoyable, he cannot camp, he cannot bushwalk or fish, he cannot mow the lawn, he struggles with gardening, he struggles with shopping, he avoids mopping and vacuuming, he has to “bring the clothesline down to waist level so I can help unpeg the washing”, he has to guard his movements when shampooing his hair or shaving, he only has hot baths 2-3 times per week, he is in pain when dressing and walking, putting on his shoes and socks is difficult, prolonged periods of standing aggravates his neck pain, and he has sleep disturbance. He specifically mentions that he relies upon his wife to perform “the brunt of the domestic duties”.
The applicant’s second statement is dated 3 April 2023 and found at page 11 of the ARD.
The statement largely deals with the applicant’s initial delay in making his compensation claim with respect to his 15 July 2020 injury (an issue not complained about by the respondent during the arbitration hearing before me). However, the statement does mention an injury that the applicant sustained to his left elbow and wrist on 17 February 2023, in relation to which he was diagnosed with a bruised elbow, took medication, and used a sling for a short period. He advises that this “injury did not affect my work-related neck or shoulder injuries”.
In relation to the respondent’s denial of liability regarding his left shoulder condition, he advises:
“I believe it is common sense for me to have developed a left shoulder injury from the overreliance following the right shoulder and neck injury…As aforementioned, the left shoulder arose from me overcompensating for my right shoulder injury. I would do most of my domestic tasks with my left shoulder including dressing, washing and other chores. I did not notice the seriousness of the left shoulder due to the severity of the right shoulder pain”.
The applicant’s third statement is dated 28 May 2023 and found at page 14 of the ARD.
The statement mentions an injury that the applicant sustained in 2017/2018 when he fell heavily onto his left elbow. He had about a week off work and three to four sessions of physiotherapy. He acknowledges that he complained to his general practitioner at the time about left shoulder pain, but cannot recall “my left shoulder actually being that sore”. He says that he had no ongoing problems with his left shoulder or his left elbow following the completion of his physiotherapy treatment.
He then describes the “difficult heavy work which again I was trying to do with my left arm because my right arm was so sore” in the period when he worked for the respondent after his 15 July 2020 injury. The work included climbing ladders, removing heavy insulation from ceiling cavities, using a heavy vacuum, holding a flexible heavy tube from the vacuum under his left arm, carrying new insulation into ceiling cavities, and spreading out that insulation in the cavities.
He also describes his activities at home which “eventually led to me developing symptoms in my left shoulder sometime in November or December”. His wife had health concerns and he was “doing everything with the kids, around the house, including cooking, washing, vacuuming and all the usual household tasks with my left arm rather than my right arm”.
He says that his left arm symptoms came on gradually, and he reported them to Dr Lim in December 2020.
Since then, he had continued to favour his left arm as “my left shoulder symptoms are not as bad as my right shoulder symptoms”.
The applicant’s partner, Kylie Minett, has also provided a statement dated 28 May 2023 (at page 17 of the ARD).
She has been in a relationship with the applicant since December 2016, and she advises:
“Following his injuries, I saw Jamie starting to overuse his left arm and shoulders to do domestic chores like cleaning, vacuuming, folding sheets, cooking etc…I had suffered injuries and health issues myself and so Jamie was performing the majority of the household chores. I saw Jamie overuse his left arm and shoulders too when he had to look after the kids because of his right shoulder condition…Whenever we went shopping, I also noticed that Jamie would be overcompensating on his left side due to his right shoulder injury”.
The ARD also contains the applicant’s initial claim form regarding his 15 July 2020 injury, dated 12 February 2021 (at page 19). The form specifically describes the injury/condition as follows:
“Injury to right shoulder and consequential condition to left shoulder due to overcompensation/over-reliance”.
In relation to medical evidence, the applicant relies upon four reports from Dr New dated 11 August 2022 (page 43 of the ARD), 7 March 2023 (page 49 of the ARD), 5 April 2023 (page 52 of the ARD), and 3 July 2023 (page 1 of the applicant’s second AALD).
As to the applicant’s left shoulder condition, the doctor:
(a)    notes in his 11 August 2022 report that the applicant presented with “predominantly right shoulder pain” – he records that the applicant “states that his right shoulder is the worst problem followed by his neck and his left shoulder, which he believes is a consequential injury, noting that he is right handed”;
(b)    takes no history of any shoulder or neck symptoms of the applicant’s prior to 15 July 2020;
(c)    advises in his 11 August 2022 report that the applicant reported pain over both scapulae and into both armpits, as well as down both arms – the doctor assesses the applicant’s activities of daily living and notes that he had to be slow and careful with his personal care, that he could only lift very light weights, that he had restrictions with walking, sitting, or standing, that his sleep was disrupted, that his sexual relations had been affected, and that travelling by motor vehicle caused him pain;
(d)    finds in his 11 August 2022 report that the applicant “has very significant restrictions in range of movement of his bilateral shoulders and cervical spine” – the doctor is however quite brief in his opinion as to causation, stating:
“Mr Hawkins states that prior to this injury he had not had any problems associated with his neck or either shoulder…It would be my opinion, on the basis of history given to me, that the employment was the substantial contribution factor, resulting in the injury and his presentation”;
(e)    assesses in his 11 August 2022 report that the applicant had 25% right upper extremity impairment and 26% left upper extremity impairment;
(f)    refers in his 7 March 2023 report to the opinions expressed by Dr Smith and advises that he “cannot remember a single patient that Dr Smith has ever seen that I have been involved with where he agrees with my opinion, and I think that reflects more upon him, and obviously that is an issue that will need to be considered” – the doctor examines the applicant again and confirms that his left shoulder restricted range of movement remains as previously – he finds the restriction to be significant and disagrees that the applicant is malingering;
(g)    takes a history from the applicant (referred to in his 5 April 2023 report) that he “has stated that he has had to do all activities of daily living with a dependence on his left shoulder and that has become quite painful and stiff” – he acknowledges however that the applicant has not had any left shoulder investigations;
(h)    advises in his 5 April 2023 report, following a further examination of the applicant, that his left shoulder restricted range of movement has improved – the doctor now assesses 21% right upper extremity impairment and 20% left upper extremity impairment, and
(i)    opines in his 3 July 2023 report, following a further examination of the applicant (in which he finds that the applicant’s left shoulder range of movement had not changed since his previous examination), that:
“I concur with Dr Lim that he has had a consequential left shoulder injury presentation due to the over-reliance and over-compensation of his left shoulder in activities of daily living…On the balance of probabilities, and with reference to the Patient Statement and comments at review today, it is my opinion that the left shoulder symptoms are a consequence of the accepted right shoulder and neck injury”.

The applicant also relies upon medical opinions from his treating specialist, Dr Khong.
It is apparent from his clinical records (from page 210 of the ARD) that the doctor consulted with the applicant on 17 November 2021, 20 January 2022, 4 March 2022, and 6 May 2022. It is clear from reports that the doctor sent to the applicant’s treating general practitioner on each date that the focus of the doctor’s treatment was in relation to the applicant’s symptoms in his neck and right shoulder. However, the doctor does record a history on 17 November 2020 of “starting to get some left shoulder symptoms as well, can’t abduct past 70 degrees”, and he also records a history on 20 January 2022 of “left shoulder has started to hurt more”.
Dr Khong then provides a report to the applicant’s solicitors dated 5 June 2023 (page 1 of the applicant’s first AALD) answering two questions posed by them. He opines:
“Mr Hawkins states that after his injury, he continued to work for another 4 months, predominantly relying on his left arm due to pain in his right shoulder. He also completed activities of daily living with his left arm. He clearly overcompensated for his right shoulder injury by using his left arm almost exclusively. This has led to a consequential left shoulder injury…Yes, I agree that Mr Hawkins' left shoulder symptoms, pain and dysfunction have developed as a direct consequence of his right shoulder injury, which led him to rely on his left arm much more. This overcompensation directly cause his consequential left shoulder injury”.
There are two medical reports from Dr Lim in the ARD.
The first report (at page 56) is dated 16 December 2020, which was the first date when the applicant consulted with the doctor.
The doctor’s diagnosis is:
“R) shoulder strain, subacromial bursitis with bursal impingement on abduction (U/S 11/2020); L) shoulder strain (overcompensation); Adjustment disorder”.
The doctor notes a past medical history of a left shoulder injury at work in 2018 from which the applicant recovered. The doctor takes a history of the applicant’s injury on 15 July 2020 to his right shoulder, and also notes that overcompensation since then has led to a left shoulder injury. When discussing the applicant’s domestic duties, the doctor records that the applicant is using his left arm to clean.
There is then a medico-legal report from Dr Lim to the applicant’s solicitors dated 15 February 2023 (at page 71).
The doctor confirms the diagnosis in his 16 December 2020 report, and provides the following conclusion:
“He has sustained a R) shoulder injury after he grabbed a beam to pull himself backwards at work. Work was the main contributing factor for their injury…As a result of his work related R) shoulder injury, he has favoured his L) arm causing a L) shoulder aggravation. He has also suffered altered biomechanics which has caused hitching of his shoulders causing a neck aggravation…As a result of his work related R) shoulder injury, he has suffered chronic pain and incapacity causing an adjustment disorder”.
The remaining medical evidence relied upon by the applicant consists of:
(a)    various referrals in relation to the applicant’s treatment from his treating general practitioners (from Dr Sathiyamoorthy on 2 December 2020, from Dr Lim on 16 December 2020, and from Dr Mo on 20 October 2021 and 4 November 2021) – none of these referrals refer to left shoulder symptoms save for a referral on 16 December 2020 from Dr Lim for physiotherapy treatment (which refers to bilateral shoulder pain);
(b)    hydrotherapy reports dated 19 February 2021 (page 63 of the ARD) – which only deal with the applicant’s complaints relating to his right shoulder;
(c)    a discharge summary from Nepean Hospital (page 75 of the ARD) in relation to the applicant’s admission there on 17 February 2023 – the document refers to the applicant complaining of neck pain on the background of right shoulder bursitis from three years previously – the document also refers to a physical examination revealing “shoulder abduction limited by R shoulder bursitis and L shoulder overcompensation”;
(d)    various radiological reports – none of which relate to the applicant’s left shoulder;
(e)    certificates of capacity (from page 85 of the ARD) from the applicant’s treating general practitioners, covering the period between 2 December 2021 and 12 July 2022 – all of these certificates record “L) shoulder injury due to overcompensation”, and
(f)    clinical notes from the applicant’s treating general practitioners at HealthSmart Medical Centre and Workers Doctors - I have considered these notes and will refer to them in more detail if specifically directed to them during the parties’ submissions.

Respondent’s evidence

The respondent largely relies upon the medical opinions proffered by Dr Smith in his reports dated 7 November 2022, 24 March 2023, 25 May 2023, and 5 July 2023.
In his 7 November 2022 report (page 6 of the Reply), he refers to his earlier examination of the applicant on 23 June 2021 (in relation to which there is a report that is not included in the Reply but is found within the Workers Doctors’ clinical notes attached to the ARD), and summarises the opinion that he then expressed - that on 15 July 2020, the applicant “most likely sustained an injury to cervical degenerative disease, rather than any injury to his right shoulder”. He also confirms that he believed the applicant was “embellishing his condition” when he examined the applicant on 23 June 2021.
After obtaining an update from the applicant regarding his treatment and symptoms (which did not include any recording of left shoulder symptoms) and after reviewing Dr New’s 11 August 2022 report (which did refer to left shoulder symptoms), the doctor examines the applicant and finds:
“Actively shoulder extension is 5° bilaterally. Extension is 20° bilaterally. Abduction is 30° bilaterally. It was not possible for him to demonstrate any internal or external rotation. There is a reduction in the sensation of both upper limbs. There is a global gross weakness in all movements of both upper limbs, unaccompanied by any wasting. There are work-hardening changes on both his hands well in excess of either of my hands”.
The doctor then provides the following opinion:
“I have no reason to alter the opinion that I expressed previously regarded this man. On 15 July 2020, he sustained an injury to his cervical spine, aggravating his cervical degenerative disease, which he will have. That process has never been treated. There was no injury to the left shoulder. He now exhibits a very similar restriction in the range of movement actively in both shoulders and did so with Dr New…I have never seen a patient, who really did actually have an injury to their shoulder, who had as much restriction in movement of the shoulder/s as this man exhibits. He continues to manufacture weakness that is gross in both upper limbs. He is obviously engaged in some manual activities”.
The doctor maintains that the applicant does not suffer from any condition in his right shoulder “that is not within normal limits”, and he does not believe that there is any “detectable impairment” in either of the applicant’s shoulders. He assesses the applicant’s whole person impairment in relation to his cervical spine at 5%, but states that that is due to his degenerative disease rather than his 15 July 2020 injury.
In his 24 March 2023 report (page 22 of the Reply), Dr Smith reviews further documentation (including Dr Lim’s report dated 15 February 2023, Dr New’s report dated 7 March 2023, and the applicant’s 27 January 2023 statement) and addresses issues raised with him by the respondent’s solicitors without a further examination of the applicant. He confirmed his opinions as follows:
“It is inconsistent that one so severely affected by pain and with great weakness in both upper limbs, could have marked work hardening changes on both his hands…The range of movement described in the letter of Dr New, that I have referred to above, demonstrated a range of movement that is less than what one would expect to see if there was complete absence of all glenohumeral joint movement”.
In his 25 May 2023 report (page 25 of the Reply), Dr Smith reviews further documentation (including Dr New’s report dated 5 April 2023 and the applicant’s 3 April 2023 statement) and addresses further issues raised with him by the respondent’s solicitors without a further examination of the applicant. The doctor notes the applicant’s statement suggested that the applicant developed left shoulder symptoms from over-reliance on that shoulder, and the doctor also notes the history taken by Dr New of the applicant having a stiff and painful left shoulder, as well as Dr New’s findings relating to the restricted range of movement in both the applicant’s shoulders.
When specifically asked for an opinion as to whether the applicant had sustained a left shoulder injury, the doctor opines:
“In my opinion, there is no injury to either shoulder. His symptoms of pain referred into the right shoulder, down the right arm, and into the shoulder blade are coming from his cervical spine. In the event he sustained some form of injury to his rotator cuff on the right on the occasion of the work incident on 15 July 2020, then the ultrasound examination would have demonstrated something other than bursal swelling and bursal bunching. Dr Liam on 16 December 2020 described the presence of neck pain, pain in both shoulders, weakness in the right arm, and pins and needles in the right hand. Those symptoms are consequent to cervical problems”.
In his 5 July 2023 report (page 1 of the respondent’s AALD), Dr Smith addresses further issues raised with him by the respondent’s solicitors without a further examination of the applicant. He confirms his opinion that there was no injury to either of the applicant’s shoulders on 15 July 2020, and he also opines that any rotator cuff disease present in the applicant’s left shoulder is part of his normal ageing process and not work-related.
The Reply also includes:
(a)    a report from Dr Soo dated 20 September 2021 (the report is found within the Workers Doctors’ clinical notes attached to the ARD) – the doctor diagnoses adhesive capsulitis in the applicant’s right shoulder and notes reports from the applicant of constant right shoulder pain since his 15 July 2020 injury, but the doctor does not record any complaints of left shoulder pain;
(b)    a recent certificate of capacity dated 6 June 2023 (at page 30) issued in relation to the applicant by Dr Mo (one of his treating general practitioners at Workers Doctors) – the diagnosis in the certificate continues to include “L) shoulder strain (overcompensation)”, and
(c)    clinical notes from Drs Khong and Lim – I have considered these notes and will refer to them in more detail if specifically directed to them during the parties’ submissions.

Applicant’s submissions

The applicant’s submissions have been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The applicant relies upon Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), and submits that it is not necessary for me to find, nor is it my role to ascertain whether the applicant suffers significant left shoulder pathology – my enquiry needs to just relate to whether his left shoulder condition results from his 15 July 2020 injury “on a commonsense test of causation”.
The applicant identifies a contest between Dr Smith’s opinions and the opinions of Drs New and Khong in this regard. He also identifies that the left shoulder condition was recorded by Dr Lim as early as 16 December 2020, and then consistently referred to in certificates of capacity. Although there are treating doctors’ reports not mentioning left shoulder symptoms, they need to be read in the context of the applicant’s right shoulder symptoms being his main complaint, as well as the applicant himself identifying only intermittent left shoulder symptoms.
The applicant submits that his statement evidence and the statement evidence of his partner regarding his left shoulder symptoms, are unchallenged and should be accepted.
In relation to the applicant’s left shoulder injury in 2017, the applicant refers to clinical notes from HealthSmart Medical Centre on 10 October 2017 and 12 October 2017 (page 199 of the ARD), where a possible left shoulder dislocation is mentioned. However, there are no further entries detailing left shoulder symptoms, which is consistent with the applicant’s statement evidence that he recovered from that particular injury. Dr Lim also refers to the applicant as having recovered from that particular injury in his first report dated 16 December 2020.
In relation to Dr Smith’s opinions, the applicant submits that they do not assist me in my decision-making process. The doctor has not answered the questions posed to him by the respondent’s solicitors or engaged with the issue as to whether the applicant has suffered a consequential injury to his left shoulder. In his 23 June 2021 report, he does not refer to left shoulder symptoms, and in his subsequent reports, he does not accept that the left shoulder was injured in the 15 July 2020 accident (which is not what is alleged by the applicant – only a consequential left shoulder condition is alleged). In contrast, Drs New and Khong have directly engaged with the issue as to whether the applicant has suffered a consequential injury to his left shoulder.
Dr Smith’s opinion that the applicant did not injure either shoulder on 15 July 2020 is inconsistent with the respondent’s acceptance of a right shoulder injury on that date. The doctor is even unwilling to accept such a right shoulder injury in a hypothetical sense, in order to provide an opinion which would assist me in relation to the specific issue that I need to determine.
The applicant submits that Dr Smith’s opinions are in “stark contrast” to the balance of the evidence before me.
The applicant finally concedes that no definitive diagnosis has been made regarding the applicant’s left shoulder condition, but that is not relevant to the issue before me in circumstances where there are complaints of left shoulder symptoms, incapacity and disability, which is enough to establish that a left shoulder consequential condition has resulted from the 15 July 2020 injury.

Respondent’s submissions

The respondent’s submissions have also been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.

The respondent refers to Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) and reminds me of the need for me to feel a sense of actual persuasion in order to find that the applicant has met his onus of proving that he has sustained a left shoulder consequential condition.
The respondent initially refers to the clinical notes from HealthSmart Medical Centre (see paragraph 64 above) in relation to the applicant’s left shoulder injury in 2017. It concedes that following the entry on 12 October 2017, there is no mention of any left shoulder symptoms until after the applicant’s injury on 15 July 2020. However, it also notes that the entry on 12 October 2017 includes the ordering of a left shoulder x-ray and a left shoulder ultrasound. It asks me to contrast these radiological requests with the fact that there have been no radiological investigations in relation to the applicant’s alleged left shoulder symptoms consequential to his 15 July 2020 injury.
The respondent then alleges some inconsistencies within the applicant’s statement evidence:
(a)    he advises (see paragraph 21 above) that for six to seven months after 15 July 2020 his left shoulder was not concerning him, but then says that he was getting left shoulder symptoms in December 2020 which he reported to Dr Lim;
(b)    his description (see paragraph 25 above) of his restrictions “since his injuries” is inconsistent with his description of the extensive and heavy nature of the domestic duties and the employment duties that he says that he undertook (see paragraph 21 above) between July 2020 and December 2020, and that he says led to the development of left shoulder symptoms, and
(c)    his acknowledgement (see paragraph 25 above) that he relied upon his wife to perform domestic duties “since his injuries" is inconsistent with his claim (see paragraph 32 above) that due to his wife’s health concerns, he was performing all their domestic duties between July 2020 and December 2020.
As a result, the respondent submits that I could not accept the applicant’s explanation as to how he overused his left arm in the performance of his domestic duties between July 2020 and December 2020. I further could not accept the applicant’s explanation as to how he overused his left arm in the performance of his employment duties during that period as there were no complaints made by him in this regard during the period.
The respondent also alleges that the applicant’s statement evidence is inconsistent with Dr New’s finding (see paragraph 39(e) above) that his left upper extremity impairment was greater than his right upper extremity impairment. In this regard, the statement evidence (see paragraphs 23, 24, 34 above) suggests that his left shoulder symptoms were intermittent and significantly less than his right shoulder symptoms.
The respondent further alleges that the applicant’s statement evidence is inconsistent with his reporting of his left arm symptoms to his treating doctors, in that it would have been expected for his treating doctors to order investigations for the extensive symptoms described (see specifically paragraph 24 above) in the statement evidence.
In relation to the medical evidence, the respondent:
(a)    emphasises that left shoulder symptoms of the applicant’s are not mentioned in Dr Lim’s referrals (except his referral to physiotherapy) on 16 December 2020 (see paragraph 49(a) above), in the hydrotherapy reports dated 19 February 2021 (see paragraph 49(b) above), as well as in Dr Soo’s notes from a consultation on 8 February 2021 (found at page 237 of the ARD within the clinical notes from Workers Doctors);
(b)    submits that any left arm pain found by Dr New is referred pain from the applicant’s neck, rather than any pain as a result of any shoulder condition, and
(c)    urges me to accept the evidence from Dr Smith on the basis of the applicant’s presentation to the doctor of left shoulder symptoms as too inconsistent and “beyond any normal limits” – the respondent emphasises the quotes from the doctor found at paragraphs 52, 53, 55, and 56 above, as well as the following quote from the doctor in his first report dated 23 June 2021 (found at page 496 of the ARD within the clinical notes from Workers Doctors):
“There is no injury to the left shoulder, although the left shoulder does not examine normally. The weakness that he exhibits in the upper limbs is unphysiological. There is no organic illness that could produce that pattern of weakness. It is more likely than not that the symptoms he described are consequent to cervical degenerative disease”.
In conclusion, the respondent submits that the applicant has failed to discharge his onus of proof in relation to his allegation of a left shoulder consequential condition. The condition has not been treated and has presented inconsistently to Dr Smith and to Dr New.

Applicant’s submissions in reply

These submissions have also been recorded and form part of the Commission’s record. I do not intend to summarise them in detail.
The applicant makes the following points:
(a)    Dr New’s assessment of the applicant’s left shoulder whole person impairment is an assessment based upon range of movement, and does not relate to the subjective effect upon the applicant of his left shoulder condition – Dr New certainly (see paragraph 39(a) above) takes a history that the applicant’s right shoulder symptoms are much worse than his left shoulder symptoms;
(b)    there is “not enough inconsistency” in the applicant’s statement evidence for his credit to be challenged - there is a gap in the evidence as there are no dates given to explain what periods the applicant is referring to when he describes his activities of daily living “prior to my injuries” and “since my injuries” (see paragraph 25 above), but it is submitted that “since my injuries” refers to the period after all the injuries (including the applicant’s left shoulder condition) developed, and
(c)    the applicant’s evidence regarding his swift recovery from his 2017 left shoulder injury is unchallenged.

FINDINGS AND REASONS

Did the applicant sustain a consequential injury to his left shoulder resulting from the accepted injury which he sustained on 15 July 2020

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In this regard, the applicant referred me to Kumar, in which a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) was provided by Roche DP, as follows:
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”

In Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), Roche DP stated:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
As discussed in Moon, all the applicant has to establish is that he has left shoulder symptoms and restrictions that have resulted from the accepted injuries to his neck and right shoulder. The applicant attempts to establish this by alleging that the injuries to his neck and right shoulder led to him overusing his left shoulder particularly in the period between 15 July 2020 and December 2020, and as a result of this overuse and overreliance, he developed left shoulder symptoms and restrictions. Whether the applicant can establish this is (as noted by Kirby P in Kooragang) a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence, including, where applicable, expert opinions.
The applicant explains the heavy nature of the employment duties that he performed for the respondent between 15 July 2020 and December 2020 (see paragraphs 19 and 31 above). He tried to do that work by mainly using his left arm. The respondent has not led any evidence disputing the applicant’s description of the heavy nature of his employment duties.
The applicant also explains (see paragraphs 21 and 32 above) that during that period he completed his daily domestic and personal activities by using his left arm rather than his right arm. He says that his partner had health concerns, which increased the domestic activities that he needed to perform. His partner corroborates both the existence of her health concerns as well as the applicant’s overuse of his left arm (see paragraph 36 above).
I accept the statement evidence of the applicant. His evidence as to the onset of his left shoulder symptoms around December 2020 is consistent with the recording of a left shoulder strain (due to overcompensation) in Dr Lim’s 16 December 2020 report, as well as with the information contained within his claim form dated 12 February 2021. I do not find the respondent’s criticism at paragraph 72(a) above to be warranted in this regard.
He also maintains throughout his statement evidence (see paragraphs 23, 28 and 34 above) that his left shoulder symptoms have been intermittent and not as serious as his right shoulder symptoms. As a result, I do not accept that there is any necessary inconsistency between his statement evidence and:
(a) the fact that his treating general practitioners did not further investigate the left shoulder symptoms – certificates of capacity from them (see paragraph 49(e) above) consistently record a left shoulder injury, but they seem to have decided that the injury did not require further investigation, and
(b) the fact that left shoulder symptoms are not mentioned in various referrals, hydrotherapy reports, and radiological reports (see paragraphs 49(a), 49(b), and 49(d) above) – these documents only refer to right shoulder symptoms, which were the applicant’s main, if not overwhelming, concern.
As to the restricted ranges of movement found in the applicant’s left shoulder (which were found by both Drs New and Smith to be similar to the restricted ranges of movement in his right shoulder), I accept the submission of the applicant at paragraph 79(a) above that range of movement findings do not always reflect the subjective effect of an injury on an injured person. The applicant’s position that his right shoulder symptoms were and are significantly greater than his left shoulder symptoms is consistent in his statement evidence, and as recorded by Drs New, Lim and Khong.
I do not accept the criticism of the applicant’s statement evidence made by the respondent at paragraphs 72-73 above. It is unclear as to the timeframe being described by the applicant (in paragraph 25 above) when he refers to his activities that have been affected “since my injuries”, but I am willing to accept that in the context of his other statement evidence, his intention was to include all his injuries (including his left shoulder symptoms) when he refers to “my injuries”. In those circumstances, it would seem to me that the relevant time frame refers to the period after the development of his left shoulder symptoms around December 2020. There is therefore no inconsistency in this regard between the applicant’s description of the activities (as well as the fact that his partner did not perform those activities) which he performed between 15 July 2020 and December 2020, and his description of the activities that have been affected “since my injuries”.
The medical evidence presented from Drs Lim, Khong, and New is also consistent. These medical practitioners are in a strong position to provide opinion evidence, as they have consulted with the applicant on multiple occasions, even Dr New consulting with him four times.
While none of these medical practitioners provide a detailed scientific analysis as to how an injury to one shoulder can lead to a person overusing the other shoulder with the result that symptoms develop in that other shoulder, they all have no difficulty in clearly supporting the proposition (see paragraphs 39(i), 42, and 48 above), and then explaining (as well as agreeing with each other regarding) how the applicant’s specific left shoulder symptoms resulted from him overusing his right shoulder.
They have also each obtained histories from the applicant consistent with his statement evidence. They record his history of overusing his left shoulder (particularly in the period prior to his first examination by Dr Lim on 16 December 2020), and they also record the applicant’s focus upon his right shoulder symptoms rather than his left shoulder symptoms.
I prefer to rely upon their opinions rather than to rely upon the opinion of Dr Smith. In this regard:
(a)    Dr Smith only had the benefit of consulting with the applicant on two occasions;
(b)    I accept the applicant’s submission (see paragraph 67 above) that Dr Smith’s opinion is in “stark contrast” to the remainder of the medical evidence – he very much provides an opinion that is not supported by Drs Lim, Khong, and New;
(c)    Dr Smith does not accept that the applicant injured his right shoulder on 15 July 2020, despite the respondent’s acceptance of that injury – I therefore believe that it makes it difficult for him to properly engage with the issue as to whether the applicant sustained a consequential left shoulder condition to a right shoulder injury (which he does not accept occurred);
(d)    Dr Smith does not provide any (emphasis added) analysis as to how an injury to one shoulder can or cannot lead to a person overusing the other shoulder with the result that symptoms develop in that other shoulder – I accept the applicant’s submission (see paragraph 65 above) that Dr Smith only seems to be providing opinions as to whether the applicant’s shoulders were actually injured on 15 July 2020 - see the comments of the doctor recorded at paragraphs 53, 57, 58 above, and
(e)    Dr Smith does not seem to have initially obtained (see paragraph 52 above) a proper history of the applicant’s left shoulder symptoms, and seems to have only been advised about how he claimed to have developed those symptoms when his 25 May 2023 report was requested (see paragraph 56 above).
The respondent submits that, in accordance with Nguyen, I should not feel a sense of actual persuasion that the applicant has met his onus of proving that he has sustained a left shoulder consequential condition.
In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca), Roche DP stated:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
Having regard to my acceptance of the applicant's statement evidence, together with my reliance upon the consistent opinions expressed by Drs Lim, Khong, and New, I am in fact comfortably satisfied that the applicant has met his onus of proving that he has sustained a consequential left shoulder condition as a result of the accepted injury to his right shoulder that he sustained on 15 July 2020. After evaluating all the evidence presented, and applying the commonsense test necessary per Kooragang, I find that there is an unbroken causal chain between the right shoulder being injured on 15 July 2020 and the left shoulder developing symptoms due to its overuse in the months thereafter. While no definitive diagnosis has been made regarding the applicant’s left shoulder condition (other than Dr Lim describing it as a “strain”), I accept the applicant’s submission (see paragraph 68 above) that there is more than sufficient evidence of symptoms and restrictions in the left shoulder to establish a consequential condition in that shoulder, in accordance with Moon.
I accept that the applicant injured his left shoulder in 2017, and had treatment for that injury in October 2017. The applicant says that he recovered from the effects of that injury, and indeed, it seems that he was not treated for it after 12 October 2017. Having found that the applicant sustained a consequential condition to his left shoulder as a result of his 15 July 2020 injury, it is not my role to determine the relevance of the 2017 injury to the causation of the applicant’s current left shoulder symptoms or impairment. That is a role for the relevant Medical Assessor appointed by the President of the Commission, and may involve consideration of s 323 of the 1998 Act.

SUMMARY

I find that the applicant has sustained a consequential injury to his left shoulder as a result of the injury which he sustained on 15 July 2020.
In accordance with the agreement between the parties, the applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the 15 July 2020 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, in order for that assessor to assess the level of the applicant’s whole person impairment in relation to his right upper extremity (shoulder), left upper extremity (shoulder), and cervical spine.

[2023] NSWPIC 436

31 August 2023