Herbert v Thomson Haulage Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Herbert v Thomson Haulage Pty Ltd [2022] NSWPIC 413
APPLICANT:	Douglas Herbert
RESPONDENT:	Thompson Haulage Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	27 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 (1987 Act) expenses as a result of a frank incident causing injury to right shoulder; dispute as to the nature of the injury whether aggravation of pre-existing degenerative condition or a tendon injury; dispute as to whether the injury had resolved prior to a later non-work injury to the shoulder; dispute as to the severity of the non-work injury and whether the applicant’s claim for section 60 of the 1987 Act expenses was reasonably necessary as a result of the work injury; Held — finding that the work injury consisted of an aggravation of pre-existing degenerative condition in the shoulder which had resolved before the second non-work injury to the shoulder; award for the respondent in respect of the claim for section 60 of the 1987 Act expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury on 16 April 2020 in the form of aggravation of a pre-existing degenerative condition in his right shoulder. 2. The applicant recovered from this injury prior to May 2021. 3. The medical treatment claimed by the applicant is not reasonably necessary as a result of injury on 16 April 2020. 4. Award for the respondent in respect of the applicant’s claim for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 as a result of such injury.

STATEMENT OF REASONS

BACKGROUND

Douglas Herbert (the applicant/Mr Herbert) seeks compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 16 April 2020 to his right upper extremity (shoulder) arising out of or in the course of his employment as a truckdriver by Thompson Haulage Pty Ltd.
On that day Mr Herbert was driving a truck when it broke down causing him to pull over to the side of the road and investigate the problem. He ascertained that it was a broken universal joint. Mr Herbert contacted his employer and was instructed to attempt to fix it. As he was trying to remove the rear tail shaft of the truck, working in a confined space with a short spanner, the spanner gave way and “with full force” he hit the back of his right shoulder and his neck against the truck.
Mr Herbert experienced a sharp burning pain in the back of his right shoulder and contacted his boss to report the injury. He managed to complete the delivery and return to the workshop of his employer’s yard, and then home. He had pain and discomfort in his right shoulder and consulted his general practitioner, Dr Richard Morrow, the following day.
Mr Herbert was referred for an X-ray and ultrasound of his shoulder. On his return to
Dr Murrow he was referred for physiotherapy with Ricky Li. He was at that stage advised by Dr Murrow that he was unable to return to work in any capacity. Physiotherapy sessions commenced in April 2020.
The applicant says that he returned to work on restricted duties in June 2020, and was allowed by his employer to perform trucking jobs for particular clients in which he was not likely to aggravate his right shoulder injury. He was able to complete these duties relying on his left arm and avoided using his right arm.
The applicant alleges that between June 2020 and May 2021, despite returning to work and engaging in light restricted duties, he would often experience an aching pain and stiffness in his right shoulder. When he was required to perform any manual tasks such as opening truck doors, moving material or cleaning the truck, such tasks would often increase the discomfort in his right shoulder. In doing minor renovations around his house, Mr Herbert says that he struggled to lift any mildly heavy objects such as hammers and wrenches due to weakness and stiffness in his right shoulder. He struggled to change light bulbs as he was unable to lift his right arm above shoulder height due to stiffness in his shoulder. He relied on the advice of his medical professionals and continued to manage his injuries. He used analgesic medication, icepacks and heat packs.
In around May 2021 the applicant while on leave from work was moving house and experienced gradual deterioration in the pain and restrictions in the right shoulder when attempting to move boxes from his truck to the ground. He requested and was granted an additional week off work and attempted to return to work on 7 June 2021. However on his return to work his employer informed him that he was being “let go” as a result of his ongoing right shoulder injury. He later pursued proceedings for unfair dismissal.
The applicant returned to Dr Morrow on 22 June 2021and underwent an X-ray of the right shoulder. Dr Morrow referred Mr Herbert for recommencement of physiotherapy treatment in July 2021 and to Dr Anthony Burneikis, orthopaedic surgeon, for treatment. Mr Herbert eventually saw Dr Burneikis on 21 October 2021.
In about September 2021 the applicant commenced work with Mountain Ridge Haulage as a casual truck driver, working approximately eight hours per day, two to three days a week. This work did not involve the requirement to perform “third party work” manually hooking up and unhooking trailers, and he was not obliged to spend extended amounts of time turning the steering wheel of the truck in tightly confined areas.
The applicant says that he continues to experience numbness in his right shoulder, pins and needles radiating down his right arm, and consequent problems with sleep. He continues to consult his general practitioner on an as needs basis, and self manages his injury with pain medication and home exercise.
The foregoing summary is taken from the applicant’s statement of evidence dated
[1] Application to Resolve a Dispute (ARD) p 2, noting that the page references herein are to those on the electronic records of the Personal Injury Commission (the Commission).
20 April 2022[1].
The applicant was independently medically examined via Telehealth by Dr Richard Powell, orthopaedic surgeon, at the request of the respondent’s insurer, icare, on 1 September 2021. Dr Powell produced a report dated 22 October 2021[2].
[2] Reply p 2.
Icare issued to the applicant on 28 October 2021 a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[3] in response to a certificate of capacity issued by Dr Morrow dated 22 June 2021 containing a statement that the applicant’s capacity for work had been downgraded from pre-injury duty to suitable duties for pre-injury hours[4]. In the s 78 notice icare noted that there was evidence that the recent downgrade in capacity was not due to the work related injury sustained on 16 April 2020, and that the original workplace injury had resolved. Liability for the applicant’s claim for right shoulder injury was declined pursuant to ss 33, 59 and 60 of the 1987 Act.
[3] ARD p 12.
[4] Reply p 20.
The applicant was independently medically examined by Dr Murray Hyde Page, consultant orthopaedic surgeon, at the request of his solicitor on 23 February 2022. Dr Hyde Page produced a report dated 1 March 2022[5]. The doctor found on examination that the applicant’s right shoulder indicated some rotator cuff tendonitis and posterolateral pain and tenderness. The AC joint appeared to be normal. Dr Hyde Page found that Mr Herbert had suffered the following injuries:
(a) acute right shoulder rotator cuff tendonitis on 16 April 2020, and
(b) aggravation of acute right shoulder rotator cuff tendonitis in May 2021 where the aggravation had ceased, and the right shoulder was then back to where it was prior to the injury when Mr Herbert moved house.
[5] ARD p 21.
In response to a request from the applicant’s solicitor to icare pursuant to s 287A of the 1987 Act, supported by:
(a)    report of Dr Hyde Page dated 1 March 2022;
(b)    report of Dr Anthony Burneikis dated 21 October 2021[6];
(c)    X-ray and ultrasound report dated 22 April 2020[7];
(d)    X-ray and ultrasound report dated 20 [sic, 30] June 2021[8], and
(e)    MRI report dated 11 August 2021[9],
the insurer issued a review decision in which it did not dispute that the applicant sustained a workplace injury to his right shoulder, but expressed preference for the opinion of
Dr Powell. It said that the evidence indicated that the aggravation of the applicant’s
[6] ARD p 39.
[7] ARD p 44.
[8] ARD p 46.
[9] ARD p 47.
pre-existing degenerative condition in his right shoulder due to the workplace injury had resolved. Icare’s decision of 28 October 2021 was maintained pursuant to ss 33, 59 and 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the workplace injury which Mr Herbert suffered to his right shoulder on 16 April 2020 had resolved prior to May 2021 with appropriate conservative management, and that the downgrade in work capacity certified by Dr Morrow on 22 June 2021 was not related to the original workplace injury.

The respondent concedes that if there is a finding in favour of the applicant on liability, it is not in issue that the applicant requires treatment for his right shoulder injury pursuant to s 60 of the 1987 Act, including if appropriate, surgery thereon.

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.
The parties attended a conciliation conference and arbitration hearing on 12 July 2022 conducted via MS Teams. Mr Gallimore of counsel appeared for the applicant briefed by
Ms King. The applicant attended. Mr Doak of counsel appeared for the respondent. A representative of the insurer attended.

EVIDENCE

Documentary evidence

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

Oral Evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary, they are as follows.

Applicant

The applicant relies on the report of Dr Hyde Page, noting the past medical history recorded therein revealed that he had never had any trouble with his right shoulder up until the work injury in April 2020. This history is corroborated by Dr Morrow in his report dated 4 August 2021 (“No predisposing problems”). The applicant relies on his evidence in his statement as to the occurrence of the injury and the pain that he experienced in the immediate aftermath, until he commenced physiotherapy treatment with Ricky Li, and his return to work up until May 2021. The applicant notes that he consulted Dr Morrow on 6 October 2021 complaining of having problems with his shoulder[10], and again on 3 March 2021 in a telephone call when the “occasional” use of “panadeine forte for shoulder neck pain” is recorded by Dr Morrow[11].
[10] See clinical note, ARD p 100.
[11] ARD p 99.
The applicant notes the reference in the s 287A review notice to the report of Ricky Li dated 21 May 2020 which contained a recording that the applicant had experienced no pain in the previous three days, had a full range of movement of the right shoulder and could lift 15kg without pain. The applicant noted however that record in the report was that he had experienced “…almost no pain in the last few days”.[12] (emphasis added)
[12] ARD p 43.
The applicant refers to his subsequent progress as noted by Dr Hyde Page of his estimated shoulder improvement of about 75%. He notes the doctor’s opinion that, in the context of no pre-existing condition and the accepted injury to the shoulder on 16 April 2020, his current presentation is more probably in keeping with the original injury. The May 2021 incident is a flare up of the original injury.
The applicant refers to the radiological investigations listed above at [14 (c)- (e)], and the opinion of Dr Hyde Page that overall, ultrasounds are able to show the underlying pathology better than the MRI scan. The applicant submits that there is medical evidence of a problem with the tendon in the shoulder as opposed to a degenerative problem. In this context the applicant submits that the opinion of Dr Burneikis in his report dated 21 October 2021 that the dominant finding of “…AC joint degenerative change that may be causing or at least significantly contributing to his current symptoms” is speculative only. The opinion of Dr Hyde Page that the problem appears to be in the rotator cuff, not the AC joint which is displaying only very mild joint arthritis, is to be preferred.
The applicant notes that he was not examined in person by Dr Powell, but rather by Telehealth. He relies on the comments of Dr Hyde Page that apparently due to the television not working, Dr Powell could not see Mr Herbert whereas Mr Herbert could see the doctor. In this context the applicant submits that the better evidence is as a result of the in person physical examination and the opinion of Dr Hyde Page should be accepted. Having regard to the consistency of complaint of pain, the radiological imaging and the findings of Dr Hyde Page, there should be an award in favour of the applicant.

Respondent

The respondent submits that the applicant’s case is somewhat unusual in that it relies solely on the opinion of Dr Hyde Page and the veracity of the history supplied to the doctor by
Mr Herbert. In the Summary and Assessment of the doctor in his report, Dr Hyde Page records that following the injury on 17 April 2020 the applicant made good progress and got back to work satisfactorily doing his normal job, but was on lighter duties for the first four months. The history of the duration of lighter duties is not correct. Further, the history that the applicant gave to Dr Hyde Page that he feels his right shoulder is now back to where it was before he suffered the strain moving house in May 2021, which is 75% better, forms the basis of the doctor’s opinion. If the applicant has not been truthful in supplying that history, the respondent submits that the opinion of Dr Hyde Page cannot be accepted.
In respect of the degenerative condition in the right shoulder, the respondent submits that the applicant relies on the opinion of Dr Hyde Page and ignores the opinion of Dr Burneikis, the treating orthopaedic surgeon. The respondent rejects the applicant’s submission that Dr the opinion of Burneikis that the dominant finding is AC degenerative change is speculative only, and submits that his opinion should be accepted.
The respondent submits that the only evidence as to the inability of Dr Powell to see the applicant at the independent medical examination he conducted of the applicant is in
Dr Hyde Page’s report. The applicant does not refer to it in his statement nor does Dr Powell refer to it in his report. The respondent submits that there is an insufficiency of evidence for this assertion to be accepted.
The respondent submits that the opinions of Dr Powell and Dr Burneikis are largely consistent in that both doctors are of the opinion that the applicant suffers from degenerative change in the right shoulder. These opinions should be accepted in preference to the opinion of Dr Hyde Page, who discounts the significance of degenerative change in the shoulder, which is based on an incorrect history.
The respondent refers to documentation attached to the ARD completed and signed by the applicant in relation to the commencement of the applicant’s employment by Mountain Ridge Haulage. The first is a FITNESS TO DRIVE REPORT signed both by Dr Morrow and
Mr Herbert on 1 July 2021[13]. That report contains a certification at [1] thereof that the applicant:
“Unconditionally meets the medical criteria for fitness to drive”
[13] ARD p 111.
The next document relied upon is a “CLINICAL ASSESSMENT RECORD” and “DRIVER HEALTH QUESTIONNAIRE (to be completed by driver)”, signed by the applicant on
[14] ARD pp 117–120.
29 June 2021 (second and last pages of the document), and by Dr Morrow on 1 July 2021 (last page of the document)[14]. In Part 3 thereof “Do you suffer from or have you ever suffered from any of the following:”, at [3.15] the answer supplied is “No” to the question “Neck, back or limb disorders”. The health professional’s comments at the end of Part 3 refer only to anxiety and depression, and not to any other condition.
The respondent submits that this document reveals that as at the date thereof the applicant is representing that he had no problems with his limbs and was fit to drive. This is consistent with the respondent’s case, and with the opinions of Dr Burneikis and Dr Powell that the applicant experiences flare ups of his arthritic condition, not related to what occurred in
April 2020. The answer supplied by the applicant calls into question his credit. The statement was either true as at 29 June 2021 or demonstrates that he was prepared to lie to Dr Morrow in order to obtain the job at Mountain Ridge Haulage. If the applicant was back to 75% of what his condition was prior to the incident on May 2021, it would not permit him to fill in the document as he has done.
The respondent submits that either the applicant was truthful in supplying that answer and thereby representing that as at June 2021 there was no impediment to him driving, or he is lying. The respondent submits that, although on occasions a person will lie as to his state of health in order to obtain a job, in this case the answer supplied by Mr Herbert is critical. If he was prepared to lie to obtain the job at Mountain Ridge Haulage, he was also prepared to lie to Dr Morrow. For this reason the applicant’s credibility must be called into question when he said to Dr Hyde Page that his condition settled back to 75% of what it was before the May 2021 box lifting incident. The applicant cannot have it both ways according to the respondent.
If the applicant cannot be accepted as a witness of truth, the respondent submits that the report of Dr Hyde Page cannot be relied upon. The opinion of Dr Hyde Page is entirely dependent upon the truthfulness of what Mr Herbert told the doctor that he experienced a flare up of his condition in May 2021 and that thereafter it settled down to 75% of what it was before that incident.
The respondent submits that other evidence supports its case, that is, there was a recovery after the work injury of 16 April 2020. The respondent refers to the clinical notes of
Dr Morrow which commence with the clinical note of a consultation with Dr Morrow on
15 October 2017[15] and proceed in reverse date order in the ARD. In that entry, there is a reference to taking panadeine forte occasionally for neck pain. The next entry referred to by the respondent is that dated 3 October 2019 in which there is again a reference to occasional use of panadeine forte for neck pain[16]. The respondent refers to the entry of 17 April 2020[17] which contains reference to the injury the subject of the proceedings, and to the entry dated 22 May 2020 with Dr Morrow, which contains reference to a “final certificate”. The respondent notes that this entry is consistent with the Certificate of Capacity dated
[15] ARD p 103.
[16] ARD p 101.
[17] ARD p 101.
[18] Reply p 18.
22 May 2020[18] containing certification that the applicant is fit for pre-injury work. This certification is not consistent with the history of the applicant recorded by Dr Hyde Page that Mr Herbert was on light duties for three or four months after the injury of 17 April 2020 before getting back to normal duties. The respondent submits that this history of being on light duties for three or four months is plainly incorrect.

The respondent refers to the report of the physiotherapist, Ricky Li, dated 7 May 2020 to
Dr Morrow[19] in which there is a record of the applicant seemingly being ready to return to a trial of truck driving if the doctor so agrees. The next report from Ricky Li dated
[19] ARD p 42.
[20] ARD p 43.
21 May 2020[20] contains a record that the applicant had almost no pain in the previous few days. That is the last report from the physiotherapist, meaning according to the respondent that the applicant received no treatment after that date.
The respondent submits that the clinical note of the applicant’s attendance on Dr Morrow on 6 October 2020[21] in which there is a record of the applicant having problems with his shoulder is an isolated instance of shoulder pain. The applicant is recorded as next attending on his general practitioner in person on 2 March 2021, and by phone 3 March 2021, with the latter clinical note containing a reference to occasional use of panadeine forte for “shoulder neck pain”. The respondent submits that nothing can be made of this entry. The respondent noted that there are entries in Dr Morrow’s clinical notes of the applicant complaining of neck pain in October 2017 and October 2019, and there is no indication in the clinical note 3 March 2021 as to whether the pain is emanating from the neck or the shoulder.
[21] ARD p 100.
The respondent refers to the entry of 22 June 2021[22] which records ongoing problems with pain and weakness in the right shoulder. There is no reference therein to the incident of lifting boxes in May 2021, nor is there in Dr Morrow’s report dated 4 August 2021 (referred to above at [22]). No weight should therefore be placed on that report.
[22] ARD p 99
The respondent submits that the activity in which the applicant engaged in May 2021 moving boxes whilst moving house is not the sort of activity engaged in by a person with a sore shoulder.
The respondent submits that the applicant was lying when he provided his history to
Dr Hyde Page and that such incorrect history, together with the lack of a history of the
May 2021 lifting boxes incident taken by both Dr Morrow and Dr Burneikis, would lead the Commission to reject the opinion of Dr Hyde Page. The respondent submits that Dr Powell had a complete history, and that his opinion is consistent with the medical evidence in the case apart, from the report of Dr Hyde Page. The applicant’s case that he is experiencing ongoing symptoms from the work injury of 16 April 2020 is not borne out by the medical evidence apart from Dr Hyde Page’s report. Rather the opinion of Dr Powell the applicant suffered an aggravation of the pre-existing degenerative disease in his right shoulder in the work related incident on 16 April 2020, was treated appropriately following that incident and made a full recovery, and then suffered a further aggravation of the pre-existing degenerative condition in May 2012, should be accepted in preference to the opinion of Dr Hyde Page. There should therefore be an award for the respondent.

Applicant in response

The applicant submits that the completion of [3.15] of the Driver Health Questionnaire by him in the manner referred to in [32] above was simply an error in completion of the form, and that no great significance should be attached to this. The applicant points out that Dr Hyde Page based his opinion of the radiological imaging he had before him, his physical examination of the applicant and the history provided to him. Although the May 2021 incident was not recorded by either Dr Morrow of Dr Burneikis, it was nevertheless recorded by
Dr Hyde Page. It would therefore be safe for the Commission to rely on the opinion of the doctor expressed therein, and find that the treatment sought by Mr Herbert was reasonably necessary as a result of the undisputed injury to the right shoulder on 16 April 2020.

FINDINGS AND REASONS

Nature of the injury

The report on the ultrasound of the applicant’s right shoulder carried out on 22 April 2020 revealed:
(a)    tenosynovitis in the long head of the biceps tendon;
(b)    a partial thickness tear (articular) measuring 4 x 5 mm of the superior fibres of the subscapularis tendon, and
(c)    an 8 x 5 mm partial thickness tear (articular) of the anterior fibres of the supraspinatus tendon.
The comment in the report is that there is tendinosis in the supraspinatus tendon with small
partial thickness tears in subscapularis and supraspinatus tendons.
The report on the ultrasound of the applicant’s right shoulder carried out on 30 June 2021, that is, after the May 2021 incident when the applicant hurt his shoulder lifting boxes while moving house, recorded:
(a)    there is a heterogeneous appearance of the supraspinatus tendon in keeping with tendonitis;
(b)    possible intrasubstance tear in the mid fibres measuring 5 x 2mm, and
(c)    there is a linear echogenic area in the subscapularis tendon measuring 8 x 7mm. This is possibly a calcific focus and could indicate calcific tendonitis.
The report on the MRI scan of the applicant’s right shoulder taken on 11 August 2021 contained a history of “Right shoulder pain following injury”. Relevant findings were:
(a)    mild AC joint arthrosis;
(b)    mild upper subscapularis tendinosis, and
(c)    otherwise normal rotator cuff, with no rotator cuff tear.
The comment in the report is “Mild AC arthrosis. No cuff tear present”.
Dr Burneikis had these reports when he examined the applicant and reported on him on
21 October 2021. He said that the dominant finding is AC joint degenerative change with increased signal in the joint and capsulitis, and that overall the AC joint degenerative change may be causing or at least significantly contributing to the applicant’s current symptoms. The applicant submits that this last mentioned opinion is speculative only, but advances no other reasons for such a submission presumably apart from the wording thereof.
Dr Powell also had access to the radiological investigations when he saw the applicant via Telehealth on 1 September 2021. His provisional diagnosis was that the applicant suffered a soft tissue injury and aggravation of some AC joint degeneration on a background of some rotator cuff tendinopathy in the work accident on 16 April 2020.
Dr Hyde Page had access to the radiological investigations, Dr Morrow’s records, the report of Dr Burneikis and the report of Dr Powell. He found on examination on 23 February 2022 indication of some right shoulder rotator cuff tendonitis and posterolateral pain and tenderness, and that the AC joint appeared to be normal. His diagnosis was acute right shoulder tendonitis on 16 April 2020, and aggravation of acute right shoulder rotator cuff tendonitis in May 2021 where that aggravation has ceased, and that the right shoulder was then back to where it was prior to the injury when Mr Herbert moved house. Dr Hyde Page said that the MRI scan in August 2021 confirmed mild AC joint arthritis which is unlikely to be symptomatic, and does not show any other significant changes. He also said that it would also appear that the ultrasounds are able to show the underlying pathology better than the MRI scan.
Dr Hyde Page’s diagnosis was that the applicant’s current right shoulder presentation with rotator cuff tendonitis is in keeping with the applicant’s original injury on 16 April 2020. Any aggravation caused by the incident in May 2021 had ceased when he carried out his examination of the applicant, who was back to the level of symptoms and functions in his right shoulder that he experienced prior to the second strain.
In the final analysis it is difficult to determine what the correct diagnosis of the applicant’s injury sustained on 16 April 2020 is. Dr Burneikis finds AC joint degenerative change on consideration of the radiological evidence and having regard to his physical examination of the applicant who displayed full range of motion but tenderness over the AC joint, made worse with cross body adduction manoeuvre. Dr Powell, who did not physically examine
Mr Herbert and may not have been able to see him, but only speak to him, provisionally diagnoses soft tissue injury and aggravation of some AC joint degeneration on a background of some rotator cuff tendinopathy. Dr Powell acknowledges that the lack of opportunity to undertake a directed (emphasis added) clinical examination (which incidentally seems to confirm that he could not see that applicant) would have been useful in the circumstances to assist in providing a diagnosis. Dr Hyde Page diagnoses acute aggravation of rotator cuff tendonitis on 16 April 2020 with further aggravation thereof in May 2021. He also finds that there is “…only a minor element of AC joint arthritis and discomfort that has only come on more recently, and is still related to his original injury”. This contrasts with Dr Burneikis’ finding of tenderness over the AC joint.
I do not accept the submission of the applicant that the diagnosis of Dr Burneikis was speculative only. He finds that both the X-ray evidence and the MRI scan reveal AC joint degenerative change. Dr Hyde Page does not state why it would appear that ultrasounds are able to show the underlying pathology better than the MRI scan. Possibly this is because what is shown on the ultrasounds is consistent with what he believes is the correct diagnosis of the injury sustained on 16 April 2020.
My view is that the diagnosis of Dr Burneikis is to be preferred to that of Dr Hyde Page, who does acknowledge that there are some degenerative changes in the AC joint, but these are only mild and more likely to be in keeping with someone who is over 60 years of age and has led an active life. The AC joint was symptomatic when Dr Burneikis examined Mr Herbert on 21 October 2021.
What must now be determined is if the aggravation of the degenerative changes sustained on 16 April 2020 had resolved by the time of the second injury in May 2021, and if that injury was, as submitted by the respondent, a flare up of the pre-existing degenerative condition.

The applicant’s credibility

The respondent puts this squarely in issue. It submits that because:
(a) the applicant misled Dr Hyde Page as to the length of time he was on light duties following the work injury, and
(b) he either lied when supplying the answer “no” to question [3.15] in the Driver Health Questionnaire, thereby incorrectly representing to his prospective employer that as at 29 June 2021 he was fit to drive, or that he was in fact fit to drive as at that date. If the answer to the question and the representation conveyed thereby was truthful, that fits in with the respondent’s case that in May 2021 he experienced a flare up of his pre-existing condition which had settled by that time.
I do not accept the applicant’s submission that the completion of [3.15] of the Driver Health Questionnaire by him in the manner referred to in [32] above was simply an error in completion of the form, and that no great significance should be attached to this. It was clearly an incorrect answer, perhaps given in the hope of obtaining employment with Mountain Ridge Haulage, which may be understandable but nevertheless significant.
I am not so sure that the applicant was consciously lying in representing to Dr Hyde Page that he was on light duties for three or four months after the work injury on 16 April 2020. The respondent submits that it is inconsistent with the final certificate of capacity issued by
Dr Morrow on 22 May 2020 containing certification of fitness for pre-injury work, and with the reports of Ricky Li, the treating physiotherapist, referred to above at [37].
In the report dated 7 May 2020 Mr Li records that the applicant was continuing to recover well from his right shoulder contusion injury, with the ability to lift some firewood the previous day, with only mild discomfort afterwards. On examination the applicant had mild end-range pain into elevation. Rotator cuff strength tests were normal in strength, but mildly provocative into internal rotation and at the supraspinatus position. The applicant was able to lift 15kg off the floor without pain but had slight pain at 20kg. He was able to push against 30kg without pain, but had slight pain at 40kg. He could pull 30kg without pain. Mr Li said that Mr Herbert seemed ready to return to truck driving if Dr Morrow agreed.
In the report dated 21 May 2020 Mr Li reported that the applicant had almost no pain in the previous few days, had a full range of movement at the shoulder and could lift 15kg to shoulder height without pain. Mr Li suggested to the applicant to be wary of overhead activities under loading due to partial thickness tears and to also continue to stretch out the deltoid/triceps for the contusion. Self-management from that point on was noted.
The applicant says at [21] of his statement dated 20 April 2022 the following:
““Between June 2020 and May 2021, despite returning to work, and working light restricted duties I would often experience an aching pain and stiffness in my right shoulder. For example, after an extended day of driving, and using my right arm to open the cab door, use the handbrake and steering wheel, my right shoulder injury was often aggravated. As a result, I would suffer from an aching pain and stiffness in my right shoulder. Furthermore, if I was required to perform any manual tasks such as opening truck doors, moving material or cleaning the truck, these tasks would often increase the discomfort in my right shoulder.”
Mr Herbert does not specify in this statement evidence the period of time he was on light duties, but one reading of the foregoing could be that he continued to work light duties for up to the three or four month period he mentioned to Dr Hyde Page.
I accept the respondent’s submission at [38] above that the clinical note of the applicant’s attendance on Dr Morrow on 6 October 2020 in which there is a record of the applicant having problems with his shoulder is an isolated instance of shoulder pain. However it is consistent with the applicant’s evidence that he experienced symptoms in his shoulder at that time. That isolated incident of shoulder pain may or may not have been a sequelae of the work injury of 16 April 2020. The evidence does not permit a finding either way. However I accept that nothing can be made of the attendances on Dr Morrow by phone and in person on 2 and 3 March 2021.
Giving Mr Herbert the benefit of the doubt on this issue, I find on the available evidence that he may not have commenced pre-injury duties with the respondent until sometime in July or August 2020, that is three to four months after the injury of 16 April 2020.
The next relevant entry in Dr Morrow’s clinical notes after the entry of 6 October 2020 is that of 22 June 2021, which contains the following history:
“WC case re-opened.
Has ongoing problems with pain and weakness in the right shoulder. Right shoulder is sore if doing lifting. No longer employed by company he was working for at the time of the injury. Not able to get another job as not passing the medical due to his right shoulder. Hs spoken with insurance company and advised to get a cetificate [sic] first.”
There is no history recorded therein, or in Dr Morrow’s report dated 4 August 2021, of the incident in which the applicant was involved in May 2021. For this reason Dr Morrow’s opinion that the effects of the work injury have not resolved is of no assistance.
Similarly the report of Dr Burneikis dated 21 October 2021 contains no reference to the May 2021 incident. The doctor was not asked for a report with an opinion on causation of the applicant’s symptoms, so in that sense the report neither assists nor hinders his case.
Dr Burneikis does record that the applicant’s symptoms had waxed and waned somewhat, but that he never stopped working. He also notes that the applicant had undergone physiotherapy which improved things somewhat in terms of range of motion and function. He records that the applicant still noticed intermittent crepitus, stiffness and weakness. The weakness was particularly concerning as Mr Herbert could not abduct a 5kg weight or lift a box weighing 10kg to shoulder height, two of the requirements for passing medicals in some of the job applications he had attended. Mr Herbert was noted to be working casually but wished to return to full time work. These physical restrictions contrast with those recorded by Mr Li on 7 and 21 May 2020, referred to at [57] - [58] above.
These findings of Dr Burneikis, five months after the May 2021 incident, would suggest that it was significant. Dr Hyde Page records it as an acute exacerbation of right shoulder pain. The applicant describes what he felt at the time as like someone was sticking a burning needle into his right shoulder. In my view this accords with Dr Powell’s opinion that the downgrade in capacity appeared to relate primarily to the aggravation of the degenerative right shoulder condition sustained while moving house in May 2021. Dr Powell says that the activity which involved moving a large number of boxes was sufficient to have caused aggravation of the pre-existing degenerative disease process.
Corroboration of evidence is not necessary in proceedings in the Commission. Nevertheless, where a person’s credit is in issue, it is of assistance in determining if his or her evidence can be accepted. In this case Mr Herbert was less that truthful in completing his Driver Health Questionnaire on 29 June 2021. I am not so sure that such was the case when he informed Dr Hyde Page that he was on light duties for three or four months following his right shoulder injury on 16 April 2020. He was certified fit for pre-injury duties by Dr Morrow on
22 May 2020. Thereafter, apart from the entry in Dr Morrow’s clinical notes of
6 October 2020, there is no record of complaints of problems with the right shoulder until the attendance on Dr Morrow on 22 June 2022, apart from the entries of 2 and 3 March 2021 to which no significance can be attached.
I also think that it is not to the applicant’s credit that he failed to mention to Dr Morrow on
2 June 2022 the May 2021 lifting incident, nor apparently, to Dr Burneikis.
Having regard to:
(a)    my finding as to the nature of the injury sustained by the applicant on
16 April 2020;
(b)    the medical evidence that I have summarised above, in particular the failure of
Mr Herbert to tell Dr Morrow and Dr Burneikis of the May 2021 injury, and
(c)    my finding that the applicant’s credit has been called into question,
I do not accept as correct the opinion of Dr Hyde Page, based on what he was told by the applicant, that over a period of months after the May 2021 incident the condition of the right shoulder improved to a point where it was prior to that incident.
In my view the applicant recovered from the aggravation of the pre-existing degenerative condition which occurred on 16 April 2020, and the May 2021 incident represented a flare up of that pre-existing condition.
In this circumstance the applicant is not entitled to an award pursuant to s 60 of the 1987 Act for the past and future medical expenses particularised in the ARD. There will be an award for the respondent.

SUMMARY

The applicant sustained injury on 16 April 2020 in the form of aggravation of a pre-existing degenerative condition in his right shoulder.
The applicant recovered from this injury prior to May 2021.
The medical treatment claimed by the applicant is not reasonably necessary as a result of injury on 16 April 2020.
Award for the respondent in respect of the applicant’s claim for medical expenses pursuant to s 60 of the 1987 Act as a result of such injury.

[2022] NSWPIC 413

27 July 2022