Hoang v Cochlear Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hoang v Cochlear Limited [2022] NSWPIC 668
APPLICANT:	Thi Thanh Hoang
RESPONDENT:	Cochlear Limited
Member:	Rachel Homan
DATE OF DECISION:	5 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; accepted lumbar injury and consequential right shoulder condition; whether consequential left shoulder condition; whether applicant’s explanation plausible applying a common-sense test; lack of radiological investigation; whether medicolegal opinions ought to be accepted; Held – symptoms of pain and restriction at left shoulder resulted from the lumbar injury; matter remitted to President of the Personal Injury Commission for referral to a Medical Assessor.
determinations made:	1. The applicant sustained a consequential condition at her left shoulder as a result of the injury to her lumbar spine on 31 October 2017 (deemed). 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 31 October 2017 (deemed) Body parts: lumbar spine right shoulder (consequential) left shoulder (consequential) Method: whole person impairment 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments and the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ms Thi Thanh Hoang (the applicant) was employed by Cochlear Limited (the respondent) between 2005 and 2018 as a hearing implant moulder.
The applicant sustained a work injury to her lumbar spine, liability for which has been accepted by the respondent’s insurer. It is also not in dispute that the applicant sustained a consequential condition at her right shoulder as a result of her lumbar spine injury. The applicant claims that she has also sustained a consequential condition at the left shoulder.
The applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on 18 February 2021, in reliance upon an assessment by orthopaedic surgeon, Dr James Bodel, of 14% whole person impairment (WPI) of the lumbar spine and right shoulder. That claim was amended on 2 June 2022 to seek compensation for 16% WPI based on an assessment by Dr Bodel that included the left shoulder.
A dispute notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 by the respondent’s insurer on 5 August 2022, in which liability to pay lump sum compensation was disputed.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 21 September 2022. The applicant sought lump sum compensation in accordance with Dr Bodel’s most recent assessment as well as compensation for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 29 November 2022. The hearing was conducted in person. The applicant was represented by Mr Luke Morgan of counsel, instructed by Ms Marina Azer. The applicant was assisted by an interpreter in the Vietnamese and English languages. The respondent was represented by Mr Paul Stockley of counsel, instructed by Ms Hannah Whiting. A representative from the insurer was also present.
During the conciliation conference, leave was granted to the applicant to amend the ARD to discontinue the claim for medical and related treatment expenses. The description of injury was also amended to omit reliance on an injury to the lumbar spine in 2009 and an injury due to the nature and conditions of employment to the lumbar spine and both shoulders. The applicant relied only on the injury to the lumbar spine with a deemed date of 31 October 2017 and consequential bilateral shoulder conditions resulting from that injury.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential left shoulder condition as result of the injury to her lumbar spine on 31 October 2017; and
(b) the degree of permanent impairment resulting from the injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents; and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 10 May 2021 and
6 May 2022.
In her first statement, the applicant said she had been working for the respondent for approximately 15 years and her role had not changed. The applicant’s duties involved constant use of a microscope whilst in a seated position, moulding hearing aid implants. The applicant would sit forward and look down into a microscope for prolonged periods of time. The applicant used her thumb and index fingers on each hand to manipulate small tools to do the assembly work.
The applicant described an injury to her lumbar spine in March 2009 in a fall. The applicant continued to work with no variation to her duties.
On 31 October 2017, the applicant felt significant pain to her lower back due to the prolonged and flexed position required to undertake her role. The applicant notified the injury and performed light duties until 3 August 2018 when the applicant was unable to move out of bed.
The applicant was referred by her general practitioners to Dr Bhisham Singh to manage her lower back symptoms. The applicant was also referred for physiotherapy.
The applicant said that her lower back symptoms were worse when she tried to stand up or rise from a seated position. The applicant’s doctors had recommended using a walking stick to support her lower back. The applicant stated:
“Every morning, I have to turn to my right side, use my right arm and left hand to push my body up and to support the weight of my lower back when I try to get out of bed. My right arm is much stronger than my left. I rely on my right arm because I am afraid that the condition in my lower back would deteriorate if I am not careful when getting out of bed. This is the same when I use arm chair and utilise the shoulders to bear the brunt of the weight when getting out of a chair. When I am using my right arm for support, I have to do it very slowly to prevent any sudden movements which would aggravate my lower back symptoms. I do this every day. I have noticed a decrease of lower back pain every morning when I use my right arm as recommended by my physiotherapist.
…
Once I am out of bed, my day to day involves alternating between home based exercises, physiotherapy treatment, tai chi and walking in swimming pool. At first, I did not notice how much I relied on my right arm to support my weight when I rise from the ground or from my bed. Gradually over time, I began to notice symptoms in my right shoulder. It would feel stiff and sore. This was especially when I try to do repetitive movements in home based exercises, tai chi or the limited normal tasks around the home.”
The applicant complained of right shoulder pain to her general practitioner and was referred for an MRI of the right shoulder. The applicant was then referred to orthopaedic surgeon,
Dr Gavin Soo, who recommended that the applicant continue with physiotherapy and avoid elevation of the right arm above shoulder height and heavy lifting.
The applicant said her physiotherapist recommended that she alternate between shoulders to balance out the pain and to relieve her right shoulder symptoms. The applicant followed this recommendation and began to rely on her left shoulder. The applicant stated:
“I relied on my left shoulder to get out of bed to support my back, carry jugs and laundry and attend to general household maintenance. I attended to the same tasks as I would with my right shoulder but with my left. I felt less sore in my right shoulder over several months.
It was around May 2020, when I noticed increasing pain in my left shoulder. It was the same symptoms I felt in my right shoulder which included stiffness and constant aches and pain.
I currently feel more pain in my left than my right. When the pain becomes unbearable, I alternate between each shoulder.”
In her supplementary statement, the applicant described ongoing symptoms at her lumbar spine. The applicant said that, as a result of her lumbar spine injury, she developed a gradual onset of pain and discomfort in both shoulders. The applicant stated:
“Simple tasks such as lifting myself up when I am lying down or sitting down has become increasingly difficult due to the state of my lower back. As such, I have to overcompensate on my bilateral shoulders/arms to hold myself up in attempt to avoid using my lower back.
At first my right shoulder was worse as I began to rely on my right shoulder to compensate for the weakness in my lower back. However, since relying on my left shoulder to avoid using my right shoulder alone, my left shoulder also began to deteriorate. Due to my symptoms and limited strength in my lower back, I rely on my bilateral shoulders to manoeuvre items. I try to isolate all my strength and power to my bilateral shoulders as I worry that I will further hurt my back. This causes a further strain on my bilateral shoulders.
I rely on my bilateral shoulders for everything as I am reluctant to put any additional pressure on my lower back and aggravate my pain. I rely on my shoulders when I am completing domestic chores or cleaning around my home. I use all the strength in my bilateral shoulders to attend to vacuuming or mopping. Due to this, I require constant rest breaks as this places too much pressure on my bilateral shoulders.”
The applicant described secondary psychological symptoms as a result of her chronic pain and discomfort.

Treating evidence

The report of an ultrasound of the right shoulder taken on 20 April 2012 referred to evidence of subdeltoid bursitis. No rotator cuff tear was identified.
In a consultation with orthopaedic surgeon, Dr Bhisham Singh on 14 March 2019, it was noted that the applicant had developed shoulder pain. The applicant was referred to physiotherapy.
On the same day, the applicant was seen by physiotherapist, Mr Ryan Heuston, who noted,
“strained R) shoulder when pushing up from ground”
The applicant was also seen by general practitioner, Dr Sebastian Calvache-Rubio, on
14 March 2019, who recorded,
“SHolder pain
flare up for the last 2 weeks
from overcompensation
using arms more often to help her stand up
restricted movement”
Reports of right shoulder pain were noted in the clinical records during April and May 2019. On 3 May 2019, Mr Heuston reported that the right shoulder pain was worse than previously and worsened with reaching movements. The applicant was referred for an MRI of the right shoulder after reporting persistent shoulder pain and restricted movement due to pain on
17 May 2019 to Dr Calvache-Rubio.
An MRI of the right shoulder performed on 28 May 2019 was reported to show a partial articular surface tear of the interior mid fibres of the supraspinatus. A fusion was seen at the glenohumeral joint, subscapularis bursa and subacromial/subdeltoid bursa.
On 14 July 2019, Dr Calvache-Rubio referred the applicant to Dr Gavin Soo, after noting complaints of ongoing shoulder pain and restriction of movement.
Dr Soo prepared a report on 27 June 2019 in which he took a history of lower back pain and onset of symptoms in the right shoulder. Dr Soo stated:
“Thi sees me in the rooms today with a 3 month history of right shoulder pain. Clinically Thi has signs of adhesive capsulitis to the right shoulder. Thi tells me that she has been using her right arm and shoulder a lot to help sit herself up from lying positions and standing from seated positions as per recommendations from the physiotherapist. This overuse may be what precipitated the adhesive capsulitis and also caused her partial articular sided tear of her supraspinatus tendon. I have had a long discussion with Thi and recommended non-surgical management. I would encourage continued physiotherapy to the right shoulder and activity avoidance (avoid elevation of the arm above shoulder height, avoid heavy lifting).”
At a review on 9 August 2019, Dr Calvache-Rubio noted:
“ongoing shoulder pain
overcompensationg supporting body weight to help her movilise
due to back pain
regaining ROM
still restricted over 120degrees”
Improving symptoms at the right shoulder were noted in the clinical records during the second half of 2019.
On 19 May 2020, Dr Tonje Vestol recorded a consultation which noted pain to the left shoulder:
“Ongoing back pain.
Started getting some pain to left shoulder.
Goes to the supermarket.
Has to have a rest afterwards due to her back.”
The applicant’s physiotherapist noted continuing shoulder pain in May and June 2020. On
16 June 2020, Dr Vestol noted:
“Pain to left shoulder.
Occasionally sharp pain down left shoulder/arm.
Right shoulder is much better.”
At a physiotherapist consultation on 19 June 2020 it was recorded,
“L shoulder pain cont
avoid using the shoulder
back is worse compare to last week
pain can get aggravated by lying on the L shoulder
pt report clicking L shoulder with no pain, ask if need an X-ray. Explained to pt its likely due to lack of RC control, X-ray not required atm”
Increasing left shoulder pain, worse with cold weather, was noted by Dr Vestol on
6 July 2020.
On 12 August 2020 the applicant’s physiotherapist noted:
“L shoulder main concern
Location: anterior and posterior shoudler jt
Aggs: moving arm back, cannot put bra on at back, sleeping on L side
Very sharp pain
Nil P&N's/Numbness
Having trouble doing yoga exercises”
Fluctuating left shoulder symptoms were noted in the clinical records during the second half of 2020.
Dr Eric Lim prepared a report on 18 January 2022 for the applicant’s solicitor. Relevantly, that report states:
“As a result of the work related back injury, she struggles to get up from a lying a sitting pistion using her arms. This has caused an overcompensation injury to her right shoulder, and now her left shoulder as she has had to avoid the right shoulder.
…Her shoulder injuries are the direct consequence of the immobility of her work related lumbar spine injury, as she used them to get up.”

Dr Bodel

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr James Bodel, dated 11 February 2019, 17 July 2020, 21 June 2021 and 29 October 2021.
In his first report, Dr Bodel dealt exclusively with the applicant’s lumbar spine symptoms.
At the time of his reports dated 17 July 2020, Dr Bodel noted that he had not previously been given any history of any problems at the right shoulder. Dr Bodel took a history as follows:
“Now I am informed that she did develop right shoulder girdle pain which is said to be “only activity related”. It appears therefore that the intermittent symptoms came on gradually in association with the nature and conditions of work in general. She reports that she consulted her local doctor, Dr Hong Mai, and later Dr Eric Lim. She was referred to have physiotherapy.”
Dr Bodel performed an examination which showed restriction of movement in the right shoulder and mild tenderness and impingement over the rotator cuff on the right-hand side. Dr Bodel noted that the applicant had been seen by Dr Soo in regard to her right shoulder.
Dr Bodel gave an opinion that the nature and conditions of the applicant’s work for the respondent was a substantial contributing factor to both the back injury and the right shoulder injury.
Dr Bodel prepared a further report on 21 June 2021 in which he recorded:
“Today you have provided a signed statement dated 10 May 2021 which implies that in fact the right shoulder pain and then the left shoulder girdle pain have come about because of a recommendation from this lady’s physiotherapist that she should use her arms to help her get out of bed because of the back pain. I find the history very confusing but I can accept that because of the longstanding back complaint, which is the primary injury, that she has put an undue load on both shoulders in doing these transfers from bed to the standing position and also probably during the nature and conditions of her work which is very fine work under a microscope. This lady is a somewhat difficult historian because of the language issues but it does appear that there is probably a causal link between her longstanding back pain which has arisen as a result of the nature and work in general and the overloading of the right shoulder initially and then the left shoulder as a consequence of the back complaint.”
Dr Bodel was asked whether the applicant had sustained a left shoulder injury as a consequence of the accepted lumbar spine injury. Dr Bodel responded:
“I accept that there is a causal link between the development of shoulder girdle pain and the nature and conditions of this lady’s work with her back injury which dates from 30 October 2017. This has arisen as a result of favouring the shoulders to assist in transfer from a bed to standing each day and also as a result of the nature of work in general.”
In his most recent reports, dated 29 October 2021, Dr Bodel recorded current symptoms of ongoing pain and stiffness in both shoulders, aggravated by overhead use of the arms.
Dr Bodel’s examination revealed restriction of movement and tenderness over the rotator cuff anteriorly at both shoulders. There was mild impingement on the right side but not the left.
Asked about the applicant’s continuing incapacity, Dr Bodel stated:
“This lady’s ongoing clinical incapacity is a painful restriction of shoulder movement in both the right and left shoulders and mechanical backache in the lower part of the back. This lady is now 60 years of age. She undoubtedly has some underlying rotator cuff pathology which is constitutional in nature and also minor degenerative disc disease in the lumbosacral spine, also with a constitutional basis. Her injury however is covered by the disease provisions of the Act and she has had aggravation, acceleration, exacerbation and deterioration of this disease process in the form of the rotator cuff in both shoulders and the degenerative disc disease in the lumbosacral spine caused by work.”
Dr Bodel said he was satisfied that there was a “causal link” between the nature and conditions of the applicant’s work and incidents recorded to have occurred at work in 2009 and her ongoing disability and injury in both upper extremities and lower back.

Dr Bentivoglio

The respondent relies on medicolegal reports prepared by Dr John Bentivoglio, dated
20 November 2019, 29 September 2020, 18 January 2021, 25 May 2021, 8 July 2021,
8 July 2022 and 13 September 2022.
In his first report, Dr Bentivoglio took a history of right shoulder symptoms in addition to lumbar symptoms, stating:
“This lady started to develop symptoms in her right shoulder. She feels that the reason for this is that because of her ongoing back complaint she would need to push yourself up out of her chair using both upper limbs and around March 2019. She experienced symptoms in her right shoulder. She advised me she had not had a problem with her shoulder previously.”
Dr Bentivoglio noted that the applicant had undergone an MRI scan of the right shoulder and had seen Dr Soo, who considered she had developed a frozen shoulder syndrome which would eventually settle.

Dr Bentivoglio recorded the applicant’s symptoms and his examination of both shoulders. Restriction of movement was noted at the right shoulder but not the left.
Dr Bentivoglio concluded that the applicant did have some degree of adhesive capsulitis but now had good range of movement. Dr Bentivoglio stated,
“With regards her right shoulder, I do not consider her explanation of how she developed her shoulder complaint is appropriate and considered the frozen shoulder syndrome (if indeed she did have a frozen shoulder syndrome) is entirely constitutional in origin. Certainly it would appear that she has regained most of the movement present in her shoulder and I would expect that in the not too distant future she will have fully regained all movement present in her shoulder.”
At the time of his second report, Dr Bentivoglio took a similar history but noted that there had been significant improvement in the applicant’s right shoulder symptoms. On examination,
Dr Bentivoglio found the applicant had regained almost full range of movement in her right shoulder. Dr Bentivoglio noted that the applicant’s left shoulder demonstrated significantly decreased range of movement but no muscle wasting.
Dr Bentivoglio noted that the applicant had not had any investigations of her left shoulder but said that the applicant probably had adhesive capsulitis involving her left shoulder.
Dr Bentivoglio said given the relatively minor abnormalities seen on the investigations of her lumbar spine, he had difficulty attributing the applicant’s shoulder complaints to her back.
Dr Bentivoglio said:
“As indicated previously, I have difficulty attributing the development of the adhesive capsulitis in her shoulders to the need for pushing herself out of the chair, considering the minor abnormalities seen on her lumbar spine investigations.”
Dr Bentivoglio’s 18 January 2021 report dealt predominantly with the issue of capacity and is not presently relevant.
Dr Bentivoglio saw the applicant again in preparation of his report dated 25 May 2021.
Dr Bentivoglio took a history that included symptoms at the left shoulder over the previous 12 months. The applicant’s only active treatment at the time was hydrotherapy. At the left shoulder, the applicant experienced pain over the anterior, posterior and point of her shoulder. The applicant reported decreased movement and decreased strength.
Dr Bentivoglio recorded an examination of both shoulders, which revealed decreases in range of movement.
Dr Bentivoglio made a diagnosis of adhesive capsulitis at the right shoulder which was now fully recovered and symptoms suggestive of adhesive capsulitis at the left shoulder.
In response to a question as to whether the applicant had suffered an injury to her right shoulder and lumbar spine due to the nature of her employment with the respondent,
Dr Bentivoglio responded that the applicant had sustained injuries to her back as a result of her employment. In relation to the right shoulder, Dr Bentivoglio stated,
“With her right shoulder, her symptoms started after she had stopped work but probably represents a consequential injury to her right shoulder from her back complaint.”
Dr Bentivoglio made an assessment of 2% WPI at the right shoulder.
In his report dated 8 July 2021, Dr Bentivoglio noted again the development of a frozen shoulder on the right and the applicant’s explanation for this being that she was pushing herself up out of the chair because of her back condition. Dr Bentivoglio noted that on the last occasion the applicant had reported symptoms in her left shoulder but did not give any explanation as to why she would be experiencing symptoms in the left shoulder.
Dr Bentivoglio said that in a home environment, at most, a person would be getting up and down from a chair five or six times per day, and that would not be enough to cause a frozen shoulder syndrome in the left shoulder.
Dr Bentivoglio expressed the opinion that he did not consider the left shoulder complaint to be related to employment, although possibly the right shoulder was.
In his report dated 8 July 2022, Dr Bentivoglio recorded that he had seen the applicant again. The applicant reported more symptoms in the left shoulder than the right including pain present most of the time. On examination, Dr Bentivoglio found no muscle wasting but restriction of movement was recorded.
Dr Bentivoglio stated,
“Similarly with her left shoulder, Ms Hoang has not had any investigations done of her left shoulder. She was advised (possibly by a physiotherapist) that she also had adhesive capsulitis in her left shoulder despite not having any investigations done of her left shoulder. Her symptoms in her left shoulder she indicated started in May 2020, almost two years after she stopped work. It is not appropriate to consider her left shoulder symptoms have been caused by her employment.”
Dr Bentivoglio disagreed that the applicant’s shoulder symptoms were related to the nature and conditions of her employment with the respondent as suggested by Dr Bodel.
In his final report, Dr Bentivoglio reiterated the opinions expressed in his previous report stating,
“She subsequently started to develop symptoms in her left shoulder in May 2020 but at the time I saw her she did not have any investigations done of her shoulder. She similarly attributes her left shoulder complaint as a result of getting up and down out of chairs.
I do not consider that to be a plausible explanation as it would only be necessary to do this activity a few times per day. As her symptoms did not develop in her left shoulder for several years after she stopped work, I would not consider that to be a consequential injury. One would expect if her shoulder complaint was related to her back injury, her symptoms should have developed whilst she was still working. Also, in all my time of doing medicolegal reports, no other claimant has ever claimed the same disability.”

Submissions

Oral submissions were heard and recorded at the arbitration hearing on 29 November 2022.

Applicant’s submissions

The applicant noted that Dr Bentivoglio had accepted that the applicant had a consequential right shoulder condition as a result of her lumbar injury.
In considering the left shoulder condition, Dr Bentivoglio limited his consideration to the mechanism of getting in and out of chairs. The applicant relied on more than that in support of her allegation of a consequential condition.
Dr Bentivoglio was prepared to accept that the mechanism described to him was sufficient to give rise to pathology in the right shoulder but dismissed the allegation of a left shoulder consequential condition without explanation. The mechanism, pattern of onset, pathology and complaints of symptoms at the left were identical to the right and consistent with the contemporaneous clinical material. The dichotomy in Dr Bentivoglio’s opinion was not explained and lacked cogent reasoning. Dr Bentivoglio’s opinion stood in contrast to the other evidence and his own acceptance of a right shoulder condition.
The applicant referred to the commonsense test of causation in Kooragang Cement Pty Ltd v Bates[1].
[1] (1994) 10 NSWCCR 796 at [810].
The applicant also referred to her statement evidence, including her description of the onset of symptoms and subsequent treatment.
The applicant’s right shoulder was investigated and an MRI demonstrated pathology at that shoulder. The applicant’s evidence was that her physiotherapist recommended that she alternate use of the left and right shoulders in order to get out of bed and rise from chairs. As a result, the applicant’s right shoulder became less sore, but similar symptoms in the left shoulder developed, including, stiffness and pain.
The applicant submitted that she had worked in manual employment for the respondent for fifteen years in work which required the use of both hands and upper limbs. There was no record of the applicant reporting symptoms in her shoulders whilst performing this work prior to the back injury. There was no factual basis to reject the applicant’s evidence as to the progression of symptomology.
The applicant submitted that the Commission would accept that the relevant causal relationship existed. The only contrary voice was that of Dr Bentivoglio but he simply dismissed the claim without providing an analysis or suitably satisfactory explanation. Although Dr Bentivoglio referred to the onset of symptoms sometime after the applicant ceased work for the respondent, the applicant submitted that this was not relevant given the mechanism relied on.
The applicant referred to the decision of EMI (Australia) Ltd v Bes[2] and said the Commission was entitled to draw together the medical and factual evidence in making its determination.
[2] [1970] 2 NSWLR 238.
The applicant referred to the reports of Dr Bodel. The applicant conceded that Dr Bodel’s use of language in his final report was loose. The applicant submitted on a proper reading of his reports, the Commission would accept that he had identified a consequential condition at the left shoulder.
The applicant also referred to the treating reports of Dr Lim, Dr Singh and Dr Soo. The applicant noted that the history recorded by Dr Soo was consistent with the applicant’s evidence and the clinical material. The applicant referred to the reports of left and right shoulder symptoms in the clinical records.
Having regard to the evidence as a whole, the applicant submitted that the Commission would be comfortably satisfied that the lumbar injury materially contributed to a condition at the applicant’s left shoulder.

Respondent’s submissions

The respondent agreed that a commonsense approach ought to be applied in the evaluation of the evidence. The respondent submitted that the Commission would readily accept that the applicant would have been less active after ceasing work for the respondent. The applicant had failed to provide a detailed description as to how the left shoulder was “overused”.
The respondent submitted that it was easier to accept a consequential condition at the right shoulder, given the evidence of pre-existing pathology at that site. The respondent noted that an ultrasound in 2012 revealed subdeltoid bursitis at the right shoulder.
The applicant’s proposition that whatever led to the acceptance of the right shoulder condition should apply to the left shoulder was not made out. The right shoulder had exhibited pathology in the past. On the left, there was no evidence of pre-existing pathology.
The respondent observed that there had been a lack of radiological investigation of the left shoulder. None of the doctors treating the applicant had seen fit to refer the shoulder for investigation. The diagnoses in the evidence were based only on the applicant’s complaints from time to time. The respondent submitted that it was far from clear that there was pathology at the left shoulder identical to the right shoulder.
The respondent observed that the applicant is now 61 years old. Other explanations for the onset of left shoulder symptoms were available. Applying a commonsense analysis, the applicant’s explanation did not make sense. Although the applicant may be sincere in her belief that the shoulder symptoms were related to the lumbar injury, the applicant lacked relevant expertise. It was also noted that the evidence indicated that the applicant had a psychological response to her predicament. All of these circumstances mitigated against an acceptance of the opinion on causation proffered by the applicant. The respondent noted incidentally that the technical and legal language used in the written statements were not her own and gave little insight into the applicant’s actual views.
The respondent noted that the applicant claimed that her shoulders were overused when moving to and from bed and chairs. The respondent submitted that the applicant would have engaged in such activity infrequently. It was also likely that the applicant used her arms and shoulders to get out of bed even before the lumbar injury. The mechanism relied upon by the applicant appeared implausible.
The respondent submitted that Dr Bentivoglio agreed that it was unlikely that the onset of symptoms in the left shoulder was the result of the back injury.
The respondent observed that the clinical records did not deal with the cause of the applicant’s left shoulder symptoms.
The respondent noted the applicant’s criticism of Dr Bentivoglio’s opinion on the basis that it was lacking in analysis. The respondent submitted that there was nothing to analyse.
Dr Bodel’s reports lacked clarity. It was necessary for the applicant to backpedal from much of what Dr Bodel said. It was quite clear that Dr Bodel considered that the applicant’s shoulders were injured due to the nature and conditions of her work. That claim had appropriately been abandoned.
The respondent noted that the first reports of left shoulder symptoms in the clinical records pre-dated Dr Bodel’s first report by several months. Dr Bodel did not deal with the left shoulder in that report.

Applicant’s submissions in reply

The applicant noted that Dr Bentivoglio and the insurer had agreed that the mechanism relied on by the applicant was credible in relation to a right shoulder condition. The respondent’s own evidence was inconsistent with its oral submissions.
The applicant noted that Dr Bentivoglio accepted that the applicant had pathology at the left shoulder in the form of a frozen shoulder but said it was not related to work for reasons which were unexplained.
The applicant noted that the causal mechanism had been accepted by Dr Soo.
The clinical records identified symptoms and pathology at the left shoulder as well as the causal mechanism.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is no dispute in these proceedings that the applicant sustained an “injury” to her lumbar spine. What requires determination is whether the applicant has sustained consequential condition at her left shoulder as a result of that injury.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[3] at [45]-[46] are relevant:
“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.”
[3] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[4], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[4] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
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.”
[5] (1994) 10 NSWCCR 796 at [810].
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.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she sustained a consequential condition affecting her left shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[6] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[6] [2008] NSWCA 246.

One challenge for the applicant in discharging her onus in this case is the lack of radiological investigation and specialist treatment of her left shoulder.
Although the applicant’s right shoulder condition was investigated by MRI and reviewed by a specialist, Dr Soo, no equivalent investigations of the symptoms at the left shoulder are in evidence before the Commission.
There is, however, sufficient medical evidence for me to be satisfied that the applicant has a medical condition at the left shoulder.
Complaints of left shoulder symptoms including pain and restriction of movement have been recorded by the applicant’s general practitioners and physiotherapist since May 2020. There is, however, no clear diagnosis of the condition at the applicant’s left shoulder in the applicant’s treating evidence.
Symptoms and findings on examination were noted at the left shoulder by
Dr Bentivoglio in his report of November 2020. Those symptoms and findings were sufficient, at the time, to lead Dr Bentivoglio to the view that the applicant probably had adhesive capsulitis at the left shoulder. It was not suggested by Dr Bentivoglio, consistently with the approach taken by the applicant’s treating practitioners, that any further investigation was warranted. Dr Bentivoglio gave the view that the applicant’s symptoms should subside with conservative treatment over a period of time.
Although left shoulder symptoms were not recorded in Dr Bodel’s earlier reports, his later reports suggested there had been an aggravation of pre-existing degenerative rotator cuff pathology at the left shoulder.
Ultimately, for present purposes, it is not necessary to identify a change in pathology or settle on a diagnosis. It is sufficient that I accept that there have been consistently reported left shoulder symptoms and findings on examination, indicative of a medical condition at the left shoulder.
For the applicant to be successful, she must establish, on the balance of probabilities, that the symptoms and restrictions at her left shoulder have “resulted from” the lumbar injury. The applicant has given a clear account of her impression of the causal relationship. The applicant described protecting her lumbar spine by pushing herself up from bed and seated positions, using her right shoulder initially. The applicant has also described taking weight and exerting force through her upper limbs in a way which would protect or isolate the lumbar spine pain when performing other routine tasks. As the applicant’s right shoulder became painful, the applicant said she avoided using the right shoulder for such tasks, placing greater weight through the left shoulder.
The treating medical evidence indicates that this mechanism was reported by the applicant as accounting for her increased shoulder symptoms on the right. This is evident from
Dr Soo’s report in June 2019 and the clinical records from March 2019. Although as noted by the respondent’s submissions, the applicant is not qualified to give a medical opinion on causation, Dr Soo appears to have accepted her explanation in his report. No alternative explanation for the onset of symptoms was identified by Dr Soo.
The clinical records dealing with the left shoulder symptoms are less clear in identifying a causal mechanism. Those records ought, however, to be read together with the January 2022 report from the applicant’s general practitioner, Dr Lim, in which he gave an opinion that the symptoms at both the left and right shoulder were related to overuse of the shoulders on account of the pain and immobility at the lumbar spine due to the work injury.
The applicant’s case receives mixed support from the medicolegal reports of Dr Bodel. Dr Bodel’s initial report did not deal with shoulder symptoms at all. At the time of his second report, right shoulder symptoms were noted, however, Dr Bodel appears to have considered that those symptoms related to the nature and conditions of the applicant’s employment rather than any consequential condition as described in the applicant’s statement evidence.
It was not until Dr Bodel’s June 2021 report that a history of left shoulder symptoms was considered. Dr Bodel had before him, at that time, the applicant’s first written statement.
Dr Bodel appears to have had some difficulty understanding the history but, in response to a direct question from the applicant’s solicitor, accepted that the applicant had a consequential left shoulder condition. Dr Bodel said this had arisen both as a result of favouring the shoulders to assist in transfers from a bed to standing each day but also as a result of the nature of her work in general.
Dr Bodel’s final reports appear to focus less on whether there was a consequential condition and more on an injury due to the nature and conditions of the applicant’s employment as establishing the relevant causal connection.
Dr Bentivoglio’s reports are similarly inconsistent. In relation to the applicant’s right shoulder, Dr Bentivoglio initially formed the view that the applicant’s explanation for her right shoulder symptoms was “not appropriate” and considered the adhesive capsulitis to be entirely constitutional.
Subsequently, however, in May 2021, Dr Bentivoglio accepted that the right shoulder condition probably did represent a consequential condition resulting from the back injury.
Dr Bentivoglio made an assessment of whole person impairment at the right shoulder.
In his most recent reports, Dr Bentivoglio appears to have changed his mind again.
Dr Bentivoglio said he did not consider it plausible that using the shoulders to perform transfers out of chairs would be sufficient to cause adhesive capsulitis in the left shoulder. Dr Bentivoglio appears, however, to be particularly influenced, in giving this opinion on the causal relationship between employment and the left shoulder by the absence of investigations of the left shoulder and the delayed onset of left shoulder symptoms after the cessation of work. In this regard, Dr Bentivoglio’s opinions are likely to be more responsive to the opinions given by Dr Bodel that the nature and conditions of employment had caused an injury to the left shoulder, than the allegation of a consequential condition.
The applicant has submitted that Dr Bentivoglio’s opinion that the applicant’s explanation for her left shoulder condition was implausible failed to take into account the applicant’s evidence as to the other ways in which she used her left shoulder to protect both her symptomatic right shoulder and lumbar injury.
This submission has force. The applicant has not alleged that the left shoulder condition has arisen solely due to using the left shoulder to get up and down out of chairs. The applicant has given evidence that she used her left arm more in performing her daily tasks to protect her right shoulder. The applicant also said that she took weight and strain through the shoulders more in order to isolate and protect her injured lumbar spine when manoeuvring objects or performing domestic chores including vacuuming and mopping. The applicant also said the left shoulder was used to manoeuvre out of bed.
I am not satisfied, therefore, that Dr Bentivoglio’s opinion on the plausibility of the applicant’s explanation for her left shoulder symptoms has been given after full and proper consideration of the range of ways in which the applicant says her left shoulder was “overused”.
The applicant’s explanation has been accepted by Dr Lim, Dr Soo, and at least in his June 2021 report, Dr Bodel. Dr Bentivoglio also appears to have accepted this as a plausible explanation for the applicant’s right shoulder symptoms in May 2021. Dr Bentivoglio’s more recent reports do not account for the alteration in his opinion.
While the medicolegal evidence on both sides in this case is problematic, I accept the applicant’s submission that the lay and medical evidence must be considered as a whole.
Given the consistency in the histories reported by the applicant and the apparent acceptance, at least at some point in time, by each of Dr Lim, Dr Soo, Dr Bodel and Dr Bentivoglio, that the mechanism described to them could account for an increase in symptoms and restrictions at the shoulders, I am satisfied that the applicant has a consequential condition at the left shoulder that has resulted from her lumbar spine injury.
It will be for a Medical Assessor to assess the degree of permanent impairment at the shoulder resulting from the lumbar injury.

[2022] NSWPIC 668

5 December 2022