Johansen v Interstate Enterprises Pty Ltd - [2021] NSWPIC 102

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Johansen v Interstate Enterprises Pty Ltd [2021] NSWPIC 102
APPLICANT:	Brian Johansen
RESPONDENT:	Interstate Enterprises Pty Ltd
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	29 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for section 60 expenses in respect of left shoulder surgery; accepted injury to lumbar spine; whether left shoulder injured in same event; lack of contemporaneous medical evidence; first reporting of shoulder symptoms suggested onset of shoulder pain after lumbar surgery; opinions on causation based on a history of immediate onset of pain; Held- commission not satisfied shoulder injured in the injurious event; although the surgery is reasonably necessary, the causal relationship to injury is not established.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim of injury to the left shoulder on 7 August 2018. 2. The applicant has not discharged his onus of establishing that the left shoulder surgery proposed by Dr Warren Kuo is reasonably necessary as a result of the injury on 7 August 2018.

STATEMENT OF REASONS

BACKGROUND

Mr Brian Johansen (the applicant) was employed as a labourer by Interstate Enterprises Pty Ltd (the respondent).
On 7 August 2018, the applicant was loading steel ladders onto the back of a truck. One of the bundles of ladders became dislodged and fell. The applicant quickly moved out of the way to avoid the dislodged ladders but fell to the ground. The applicant alleges that he sustained injury to his lumbar spine and shoulders in the incident.
Liability for an injury to the applicant’s lumbar spine was accepted by the respondent’s insurer.
On 8 August 2019, the applicant sought approval from the respondent’s insurer to undergo surgery to his left shoulder as proposed by his orthopaedic surgeon, Dr Warren Kuo.
The insurer disputed liability for the alleged left shoulder injury and the proposed surgery in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 10 March 2020. That decision was maintained following internal review pursuant to s 287A of the 1998 Act on 9 June 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 21 January 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the left shoulder surgery proposed by Dr Kuo.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury to his left shoulder on 7 August 2018; and
(b) whether the left shoulder surgery proposed by Dr Kuo is reasonably necessary as a result of the injury on 7 August 2018.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 29 March 2021. The applicant was represented by Mr Misha Hammond of counsel, instructed by Mr Sarim Attique. The respondent was represented by Mr Paul Stockley of counsel, instructed by
Mr Martin Thorne. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents; and

(c) documents attached to Application to Admit Late Documents lodged by the applicant on 1 March 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 7 October 2020.
The applicant stated that prior to commencing employment with the respondent he had no orthopaedic injuries to his back or either shoulder.
On or about 7 August 2018, the applicant was working as a labourer for the respondent along the North-West Metro Rail Link. The applicant was loading steel ladders onto the back of a truck. The ladders would be bundled together and then lifted into the truck with the use of a forklift. One of the bundles loaded onto the truck became dislodged and fell. The applicant was on the ground and had to quickly jump out of the way but was knocked to the ground by the falling ladders. The applicant landed on the left side of his body and back.

The applicant claimed that as a result of this incident he suffered injuries to his back, shoulders and left hip.

Following the incident, the applicant saw the company doctor, Dr Ron Tomlins and was transferred to Westmead Hospital in an ambulance. The applicant was kept overnight and discharged home the following day.

On 8 August 2018, the applicant consulted another company doctor, Dr Patrick Mosse, and was prescribed analgesic medication. The applicant saw Dr Mosse again on 15 August 2018 and 22 August 2018. No further investigations or treatment were undertaken. Dr Mosse considered the applicant should return to work.

The applicant then consulted his usual general practitioner, Dr Wafik Latif, who referred him for an MRI of the lumbar spine and ultrasound of the shoulders. The applicant was referred to orthopaedic surgeon, Associate Professor Peter Papantoniou.
On or about 5 December 2018, the applicant underwent a L4/5 laminectomy, decompression, discectomy, neurolysis and posterolateral interbody fusion by
Dr Papantoniou.
The applicant first consulted orthopaedic surgeon, Dr Warren Kuo for treatment of his shoulder injuries on 8 August 2019. Dr Kuo recommended surgery to the left shoulder.
The applicant had undergone four cortisone steroid injections to the left shoulder and one to the right shoulder with only temporary pain relief.
The applicant said he experienced constant pain, restriction movement and was restricted in his ability to perform daily tasks including driving, bending and lifting.

Treating medical evidence

A letter prepared by general practitioner, Dr Ron Tomlins, dated 7 August 2018 stated:
“Herewith Mr Benjamin Johansen, age 62 yrs with ?abdominal injuries following a fall at work.
Involved in a work related accident tonight. Was directing the unloading of a truck when part of the load fell from the truck. He dived out of the way but is unsure how he landed. Complaining of abdominal pain, left lower rib pain, left and right hip pain, left elbow pain.
Examination: BP (sitting): 144/96
Pulse: 82 Regular
O2 saturation 96%.
Mild tenderness left elbow and left lower ribs. Also tender over both hips L>R,
Tender RIF and left abdomen, BS++++”
An Emergency Department discharge summary from Westmead Hospital dated 8 August 2018 stated:
“Thank you for reviewing Benjamin JOHANSEN a 62 year old male to be discharged on 08/08/2018 from the WE Emergency Dept at Westmead Hospital. Benjamin JOHANSEN presented to this facility with a fall. He was assessed in emergency and received a chest x-ray and pelvic x-ray. His blood tests were unremarkable (besides mild kidney impairment), and no fractures were seen on x-ray. He was discharged with an outpatient ultrasound to be performed of a large haematoma if the pain was worsening, and to mobilise as tolerated with simple analgesia.”
The summary recorded a history of the incident as follows:
“Reports loading a truck at work when a strap on load broke and load came backwards
-      dived out of way of load backwards and fell onto backside (left) and then back
-      unsure of headstrike, nil LOC,
-      mobilised afterwards with discomfort, but after going to medical centre unable to walk due to pain on backside
-      given morphine and paracetamol by ambos to good effect; pain 6/10 but not wanting analgesia
-      pain stable at rest, 10/10 on mobilising
-      NiI chest pain / palpitations / headaches / light-headedness / dizziness prior to incident
-      Since incident Chest pain to certain areas on left (see below)”
A detailed examination was recorded which included:
“NiI scalp tenderness, nil lacerations on head
Nil midline tenderness, nil neck tenderness, full ROM
PEARL, no RAPD; EOM Intact; uvula midline
HSDNM
Chest tender lo rib 3 or 4 on LEFT, just lateral to sternum. Also tender to LEFT rib 12, mid-axillary on LEFT
Chest clear
Nil spinal tenderness
Tender just inferior to PSIS
Good anal tone. Haematoma ~12x8cm on LEFT just inferior to greater trochanter
Abdo soft, non tender (pain refered from chest or pubic symphysus)
Tender to pubic symphysis
One laceration to anterior RIGHT thigh, two just above knee on LEFT; all superficial Lower limbs non-tender, full ROM; power 5/5 throughout except LEFT hip flexion limited by pain in pubic sypmhysis
Upper limbs non-tender, full ROM; power 5/5 throughout, bruise to left elbow”
On 27 August 2018, the applicant consulted his usual general practitioner, Dr Wafik Latif.
Dr Latif made a record of the consultation as follows:
“accident at work on 7/8/18
fall while running to avoid a falling heavy load of a truck
sustained multiple soft tissue injures and was admitted to westmead hospital and discharged on 8/8/18
see d/s
followed up by co Dr certified on light duty work 30h weeks
see certficate of capacity
taking analgesia
had x ray and us by treating physio george hanna
current co neck pain left parasternal pain 2-4th junction pain
left elbow
lower back pain referring to groin and pelvic area on sitting standing or rolling
bilateral knee pain
haematoma right flank and illiac fossa area see photos
taking panadein fort/voltaren
continue
review results of xray and us”
On 30 August 2018, Dr Latif said he had reviewed x-rays of the applicant’s lumbar spine, pelvis and hips as arranged by his physiotherapist, Dr Hanna. The x-rays revealed degenerative changes and no fractures. Dr Latif recorded that the applicant was still bothered by deep perineal and pelvic pain and numbness over the lower legs and feet. The applicant had a haematoma and bruising over the left hip overlying the head of the femur. An MRI of the lumbar spine was requested.
On 6 September 2018, Dr Latif recorded that the MRI showed severe spinal canal stenosis with cauda equina compression and possible compression of the left exiting L5 nerve root. The applicant was referred to Dr Papantoniou.
The applicant continued to see Dr Latif. On 12 October 2018, Dr Latif made a record of a complaint of left hip clicking over the last week. The applicant also complained of pain over the back of the right thigh. An MRI of the left hip was requested.
The applicant continued to complain of back pain and pain and numbness over both legs.
On 3 December 2018, the applicant underwent L4/5 instrumented fusion performed by
Dr Papantoniou.
Following the surgery, the applicant continued to consult Dr Latif who recorded that the applicant was recovering well. On 8 January 2019 the applicant made a complaint of mild headache and runny nose. The applicant was walking without support or using a stick.
On 14 January 2019, Dr Latif recorded that the applicant was walking with assistance and taking analgesia. On 21 January 2019, the applicant reported that the pain in his lower back was improving but the applicant was having difficulty sleeping at night.
On 28 January 2019, the applicant’s rehabilitation consultant and chiropractor, Dr George Hanna wrote a letter stating:
“Mr BENJAMIN JOHANSEN continues to have ongoing left shoulder pain with abduction and forward flexion post surgery. Maybe the positioning of his upper extremities on the operative table may have caused some aggravation to his left shoulder rotator cuff. He will need an MRI scan to exclude this.”
On 29 January 2019, Dr Latif recorded:
“Still having back pain
doing walking and light exercises
taking analgesia reg
co of pain over the right shoulder noticed after the surgery
no pain before surgery

Reason for contact:
Left Shoulder pain
Actions:
Diagnostic Imaging requested: us left shoulder - pain left shoulder - dec range of movements shoulder arc and abduction”

On 11 February 2019, Dr Latif recorded that the applicant was still complaining of mild pain but managing well. With regard to the left shoulder, Dr Latif recorded:
“Bursitis Supraspinatus Tendon Tear - Partial
Actions:
Radiology notified by Dr Wafik Latif - SHOULDER LEFT US 5/02/2019
still in pain over left shoulder
results full thickness tear SS and bursitis
Diagnostic Imaging requested: US guided steroid injection left shoulder - tear supraspinatous, bursitis”
On 19 February 2019, Dr Latif recorded that the applicant had an injection into the left shoulder but it had not helped much. The applicant still had pain and restricted movements. The applicant was advised to discuss the matter with Dr Papantoniou.
On 12 March 2019, Dr Papantoniou prepared a report for Dr Latif in which he stated:
“Mr Johansen had his L4/5 instrumented fusion on 3/12/2018.
He is swimming three times a week and walking four or five times a week. He continues therapy with Dr George Hanna and this is helping. He rarely requires any analgesia but when he does he takes, Nuromol. He continues to have left shoulder pain despite a subdeltoid steroid injection on 13/2/19.”
Dr Papantoniou referred the applicant for an MRI of his left shoulder.
On 9 May 2019, Dr Latif recorded that the applicant had an MRI of the left shoulder done on 30 April 2019, which showed full thickness tear of the supraspinatus tendon as well as a tear involving the inferior labrum. The applicant was referred for orthopaedic assessment and management.
On 22 May 2019, Dr Latif referred the applicant for x-rays of both shoulders for comparison.
On 11 June 2019, Dr Latif recorded:
“pain over left shoulder and decreased shoulder arc range only 80o
had steroid inj in 2/19 suggested by radiologist for rpt inj e double dose if no improvement Left Shoulder pain
Actions:
Diagnostic Imaging requested: US Guided steroid injection left shoulder - - persistent pain left shoulder - hist of steroid injection 2/19 see report - left SS tear and tendinosis.”
On 9 July 2019, Dr Latif recorded that the applicant was still complaining of pain over his left shoulder following an injection on 17 June 2019. The applicant was referred for repeat injection at double the dose.
On 29 July 2019, Dr Latif recorded that the applicant still complained of pain over the left shoulder despite the two injections. The applicant was referred to Dr Kuo.
On 2 August 2019, Dr Latif recorded:
“mri left shoulder
see report
subdeltoid bursea injection did not help pain in left shoulder
for trial steroid injection left AC joint”
On 8 August 2019, Dr Kuo wrote to Dr Latif in relation to the applicant’s left shoulder:
“Thank you for referring Benjamin, who is a 63 year old, right hand dominant, Labourer, who presents with left shoulder pain. As you are aware on the 7th August 2018 Benjamin had a fall at work when he had to jump off a truck landing and injuring his back and left shoulder. He has also been complaining of some left sided rib pain. I understand his back underwent a L4/5 fusion. His left shoulder however remains painful. The pain is located superiorly and laterally worse with abduction and overhead activities. It is between a 5-8/10. There is pain at night and he feels the shoulder is stiffer and weaker than normal. Functionally he has not been able to return to work since his injury. Treatment consisted of 3 cortisone Injections, self directed shoulder exercises, painkillers and anti-inflammatories with only limited benefit.”

Dr Kuo recorded his findings on examination of restriction of movement with a painful arc and positive impingement test. After reviewing the MRI scan performed on 30 April 2019, Dr Kuo advised:
“Ben has sustained a left rotator cuff tear following his fall. This has resulted in impingement and some associated capsular tightening. We have discussed treatment options and given that he remains symptomatic despite alternative measure he would benefit from a left shoulder arthroscopy, rotator cuff +/. biceps repair.”
Dr Kuo faxed a request for approval for the operative and hospital costs for the surgical procedure on the same date.
On 16 August 2019, Dr Latif recorded:
“s/b Dr W Kuo
still having pain in left shoulder and decreased shoulder arc and rotational movements injection did not help suggested and agreed to have shoulder arthroscopy with repair rotator cuff +- biceps pending insurance approval”
On 19 August 2019, Dr Latif recorded:
“had repeated shoulder injection last wednesday - pain improved but still cannot lift shoulder up - shoulder arc max to 70o
to continue on analgesia - physio and rehab”
From early September 2019, Dr Latif began to record and investigate complaints in relation to the right shoulder “due to overuse as left shoulder was painful”.
In report dated 4 September 2019, Dr Patrick Mosse stated:
“1) No report of LEFT shoulder pain was made at the time of injury to the staff at ED. There was a bruise to the LEFT elbow, No report of LEFT shoulder pain was made to me.”
On 11 September 2019, Dr Kuo reported to Dr Latif:
“I reviewed Benjamin today. He unfortunately remains with ongoing pain in his left shoulder. His range of movement and power remain restricted with associated pain. We will try and chase approval for his left shoulder surgery.”

Dr Kuo

Dr Kuo prepared a report for the applicant’s solicitors on 8 May 2020 in which he stated that he had seen the applicant on 8 August 2019 and 11 September 2019.
Dr Kuo provided a history consistent with his reports to Dr Latif and stated:
“Based on the patient's history with regards to this fall, I am of the opinion that his employment was a substantial contributing factor to his shoulder injuries. My opinion can only be based on the patient’s history given to me and he reports that his shoulder was not a problem prior to his fall and back injury but now there has been shoulder problems. It would be reasonable to conclude that his left shoulder problem is related to his fall and back injury.
The prognosis is poor without surgery as he has trialled cortisone injections, has been performing strengthening exercises and anti-inflammatories without benefit. With surgery, the prognosis is improved. The results are usually good to very good, if not excellent.
In my opinion given that he has failed non-operative measures and his symptoms have been present for quite some time, I feel it is reasonable and necessary to proceed with surgery. It would be appropriate as it has a great capacity to relieve the effects of the injury. Surgery itself and the treatment recommended would be effective in to alleviate these symptoms. All alternatives have been trialled. The cost benefit is high as the surgery stands to relieve his symptoms and allow for improvement of quality of life and return of function with ADL's and potentially work. This treatment would be considered acceptable within a peer review.”

Dr Bodel

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr James G. Bodel, dated 4 May 2020. Dr Bodel recorded a history that was consistent with the applicant’s statement evidence.
Dr Bodel performed an examination but had no x-rays or other investigations available for review. Dr Bodel said he had read a report from Dr Kuo:
“I have carefully read the report from Dr Warren Kuo, Orthopaedic Surgeon who examined this gentleman regarding his shoulder injuries.
He concluded that:
‘Based on the patient's history with regards to his fall, I am of the opinion that his employment was a substantial contributing factor to his shoulder injuries’.
I agree with that determination. This gentleman's clinical history is consistent with the pathology in the shoulders for which appropriate treatment as recommended by Dr Kuo should be undertaken. He indicated that there was no real chance that he would settle with conservative care.
As he concluded:
‘His prognosis is poor without surgery’.”

Dr Bodel said he was satisfied that employment was “the main substantial contributing factor” to the injury to both shoulders because of the mechanism of injury that occurred.
Dr Bodel disagreed with a report prepared by the respondent’s expert, Dr Burrow, saying that the applicant had indicated that he did have shoulder pain immediately after the fall.
With regard to the particular procedure proposed by Dr Kuo, Dr Bodel stated:
“The proposed left shoulder surgery as indicated by Dr Kuo is reasonably necessary as a result of the work injury. At the very least the injury is the aggravation, acceleration, exacerbation and deterioration of that disease process in the shoulder.
The recommended surgery is appropriate, effective and there are no real alternatives after the failed conservative care and the cost benefit is that he should improve and it is indeed a surgical procedure which is in general acceptance in the medical community in this regard.
I would therefore indicate that he has earnt the operation because of the failure of conservative care for that shoulder injury.”

Dr Burrow

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Greggory Burrow, dated 13 December 2019 and 13 February 2020.
Dr Burrow took a history of the incident on 7 August 2018:

“At work on 7 August 2018, Mr Johansen jumped off the tray of his truck, landed awkwardly, fell to the ground, fell onto his buttock and back and he also tells me he fell on the left arm and shoulder.”

Dr Burrow noted:
“In September, Dr Mosse made a note that Mr Johansen had not made a complaint regarding left shoulder pain at the time of the injury, to staff in the Emergency Department, nor to him, though there was a bruise over the left elbow. Mr Johansen says the left shoulder was sore from the day he fell, but that the "focus was on the back". There was initial discomfort about the left elbow and some local tenderness found by Dr Mosse initially but then no ongoing record of a left shoulder problem until around April 2019 when an MR scan was performed showing a cuff tear.”
Dr Burrow reported that the applicant complained of continued left shoulder pain which was intermittently quite severe at 8/10. The pain was worse with increased use, abduction and side lying at night. Examination of the shoulder showed nearly identical shoulder range of motion.
With regard to the mechanism of injury, Dr Burrow stated:
“There is no documentation available of shoulder or upper arm discomfort until eight months after the incident, that is when the MR scan is performed in April 2019. It is quite conceivable that Mr Johansen injured his shoulder as a result of the fall - if he did, this would have been documented both at Westmead and by his GP, who quite clearly documented some local tenderness about the elbow.
It is my opinion that there was no distinct injury to the left shoulder as a result of the fall.
There was a temporary soft tissue injury to the elbow, which resolved.
An argument could be made that the left elbow pain was actually a shoulder problem. I have heard of rotator cuff pain going down to the elbow, but not simply presenting with elbow pain. It is difficult to credit that Mr Johansen had a significant cuff tear as a result of the fall and did not present with localized pain about the shoulder that would have been noted by one of the many physicians or allied health personnel treating him.”
With regard to the treatment proposed by Dr Kuo, Dr Burrow stated:
“I don't believe there is evidence that there was a medical causation, but I do believe that treatment is reasonably necessary. He now presents with a left shoulder rotator cuff tear and surgical repair is reasonable.”
In his supplementary report of 13 February 2020, Dr Burrow was asked to comment on causation of the applicant’s shoulder condition in light of additional evidence and responded:
“Mr Johansen did not have shoulder symptoms as a result of the work incident of 7 August 2018. He presented, had examination and showed some left elbow tenderness in the weeks following the work incident. It was not until many months later that shoulder symptoms became apparent on the left side and he subsequently went on to have MRI scanning of the left shoulder where he was found to have a full thickness cuff tear. In my previous report, I noted that there was no contemporaneous presentation of left shoulder pain or dysfunction related to the work incident and therefore the current left shoulder problem of symptomatic rotator cuff tear was not related to the work incident. It has developed since. I note that none of the treating physicians that were involved in the early care of Mr Johansen's problem recorded a left shoulder problem. It is my opinion however that treatment is required for the left shoulder rotator cuff tear, as suggested by Dr Kuo by way of rotator cuff tear repair surgery, but that the requirement for that surgery is unrelated to the work injury of 7 August 2018.

Applicant’s submissions

Mr Hammond submitted that the applicant sustained some serious injuries in the event on 7 August 2018. The only dispute requiring determination was whether there was an injury to the left shoulder in that event. Mr Hammond said there was no dispute on the evidence that the surgery proposed was reasonably necessary. The dispute related to a lack of contemporaneous complaints regarding the shoulder.
Mr Hammond noted that the first complaint of shoulder symptoms following the event in August 2018 was in the letter from Dr Hanna dated 28 January 2019. In the intervening period, the applicant was undergoing treatment for other injuries. The applicant had been in hospital and was seeing surgeons regarding his back complaints. The treating medical evidence showed the applicant complained of severe pain rated 10 out of 10 at his back and in both legs. Dr Papantoniou’s reports referred to constant pain radiating to both legs and loss of bowel and bladder function. On 3 December 2018, Dr Papantoniou performed serious back surgery.
Mr Hammond submitted that in that period it was understandable that a reasonably minor condition affecting the applicant shoulder when compared to the back injury was overlooked. Looking at the history, there were clear reasons why the applicant’s doctors would not have been focused on complaints in the applicant’s shoulders.
Mr Hammond noted that Dr Burrow’s opinion was predicated on the assumption that if a complaint was not recorded it did not happen. Mr Hammond submitted that it was perfectly understandable that busy doctors would not record everything. If a patient had a significant back issue that would reasonably be the focus of treatment.
Mr Hammond observed that the Emergency Department discharge summary recorded that the applicant had no spinal tenderness. Although that record did not mention a specific injury to the shoulder, other significant injuries were also left out. The applicant was discharged from hospital quickly and without any real investigation of spinal issues. Mr Hammond submitted that it was clear that the hospital records were incomplete.
Mr Hammond observed that Dr Burrow did not proffer any alternative cause or diagnosis. No opinion had been provided on the lack of left shoulder complaints prior to the injury.
Dr Burrow did not suggest that the condition was simply age-related. All that was said was that the condition was not related to the work incident. Mr Hammond submitted that
Dr Burrow’s reports lacked explanation when compared to the opinions expressed by the treating practitioners and Dr Bodel.
Mr Hammond observed that Dr Kuo discussed the mechanism of injury. The applicant had back pain instantly and injury to the left elbow. Mr Hammond submitted that the mechanism was highly consistent with a tendon tear in the shoulder, the applicant having fallen on his back and onto his left upper extremity. Mr Hammond submitted that this type of incident could and did cause the pathology sought to be treated through surgery.

Respondent’s submissions

Mr Stockley accepted that the applicant had rotator cuff pathology in his left shoulder at the time he was examined by Dr Kuo. Mr Stockley noted, however, that neither Dr Kuo nor
Dr Bodel offered any analysis of the injury. All Dr Kuo said was that the applicant sustained a left rotator cuff tear following his fall. Mr Stockley submitted that that opinion by Dr Kuo did not give any insight into the change of pathology which occurred in the fall. Dr Bodel’s report offered no greater precision.
Mr Stockley submitted that Dr Burrow proceeded on the basis that the pathology was a rotator cuff tear in the fall. From that perspective he had provided his opinion. Dr Burrow considered that if the applicant had sustained pathology of this type in the incident there would have been some contemporaneous complaint of pain. In fact, there was a dearth of such evidence.
Mr Stockley referred to the report of Dr Tomlins on the day of the incident and noted that the applicant complained of abdominal pain, left lower rib pain and left and right hip pain as well as left elbow pain. Mr Stockley submitted that this was the most contemporaneous account of the incident.
The applicant attended Westmead Hospital and was discharged the following day. The hospital records recorded a fall on the applicant’s backside. Although the description of the event was not particularly careful in the discharge referral, a more detailed description was set out in the history. The applicant fell onto his backside and then his back. The hospital records recorded symptoms in a range of body parts and a thorough examination to determine what body parts were involved. Despite a very thorough examination and history, no record was made of left shoulder symptoms. The records indicated that the left upper limb was examined having regard to the references to the left elbow.
Mr Stockley submitted that Dr Burrow’s opinion should be considered in that context.
Dr Burrow found it difficult to credit that the applicant had a significant tear in his shoulder as a result of the fall that would not have been noted by any of the treating practitioners. In this regard, Dr Burrow seemed to accept that the pathology would have been accompanied by localised pain around the shoulder.
Mr Stockley submitted that Mr Hammond appeared to accept that the injury would have been accompanied by pain but submitted that it just had not been recorded. Whether the injury would have been accompanied by contemporaneous pain was not the subject of consideration by Dr Kuo or Dr Bodel.
Mr Stockley submitted that there was nothing in the contemporaneous clinical material that helped the applicant. The letter from Dr Hanna on 28 January 2019 commented on the involvement of the applicant’s lumbar surgery. Dr Hanna hypothesised that the shoulder may have been injured during the surgical procedure. Mr Stockley submitted that that was not the case presented to the Commission.
Mr Stockley noted that the applicant had not provided any explanation as to his pain following the injurious event. The applicant did not explain how his body was struck and provided almost no insight into the onset, severity or development of a shoulder injury at all. The applicant’s only evidence was that he had suffered injuries to his back, shoulders and hip.

Mr Stockley noted that both the ARD and the applicant’s statement alleged injury to both shoulders. The only complaint of pain over the right shoulder in the clinical notes suggested it had come on due to overuse. The clinical records did not suggest traumatic injury to the right shoulder.
Mr Stockley submitted that the first reference to shoulder symptoms in Dr Latif’s clinical records was consistent Dr Hanna’s observation on 28 January 2019 in that the shoulder pain was first observed after the surgery.
Mr Stockley submitted there was a lacuna in the applicant’s evidence.

Applicant’s submissions in reply

Mr Hammond submitted that the applicant had provided both Dr Bodel and Dr Kuo with a history of pain in the shoulder from the time of the injurious event. The respondent’s criticism of the applicant not having provided this evidence in his statement was misplaced. The doctors had relied on the applicant’s history to provide their opinions.
The applicant said that the first mention of the shoulder complaints in the records of Dr Latif was unclear in referring to right shoulder symptoms but requesting left shoulder investigations. Mr Hammond submitted that in any event the period of time from the date of injury to the first record in Dr Latif’s notes was only six months. In that period, the applicant was suffering severe pain and undergoing treatment for his lumbar injury.

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.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury for the purposes of s 4 to his left shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] 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.”
[1] [2008] NSWCA 246.
The value of contemporaneous evidence in considering whether an applicant has discharged his onus has been repeatedly endorsed by the courts: Watson v Foxman[2] and Onassis v Vergottis[3]. In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses, many years after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:

"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[2] (1995) 49 NSWLR 315.
[3] (1968) 2 Lloyds Report 403.

In Department of Education and Training v Ireland[4] where the President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[4] [2008] NSWWCCPD 134.
The ARD before me claims a frank injury to the applicant’s left shoulder in the injurious event on 7 August 2018. It is noted that the applicant does not claim that the symptoms in his left shoulder were secondary to or consequential upon the injury of that date.
The injury on 7 August 2018 is reasonably well documented in the contemporaneous medical evidence before me. That evidence includes the records of Dr Tomlins and the records of Westmead Hospital of the same date. Dr Tomlins recorded that the applicant was complaining of abdominal pain, left lower rib pain, left and right hip pain and left elbow pain.
A detailed examination of a range of body parts was recorded at Westmead Hospital. Notably, however, the applicant’s upper limbs were said to be non-tender, there was a full range of movement and no loss of power. A bruise to the left elbow was noted.
It is noted that Dr Mosse has also indicated that no complaints of shoulder symptoms were reported to him.
Although the history provided to Dr Kuo, Dr Bodel and Dr Burrow was of the applicant experiencing an immediate onset of pain in the left shoulder, there is no contemporaneous account of those symptoms being reported in the period immediately following the injurious event.
The applicant’s submitted that the Commission should give little weight to the absence of reference to the left shoulder in the records of Dr Tomlins and Westmead Hospital on the basis that they also contained no reference to injury to the lumbar spine. Whilst I accept that this observation is factually correct, I consider it appropriate to give some weight to the absence of recorded left shoulder symptoms, given that an upper limb examination at the hospital was specifically recorded. I accept that this evidence is not, on its own, determinative.
Unlike the lumbar injury, however, there was a significant delay in shoulder symptoms being reported to the applicant’s usual general practitioner, Dr Latif. In the period between the injurious event in August 2018 and late January 2019, the applicant attended consultations with Dr Latif on multiple occasions. During those consultations, the applicant complained of a range of symptoms including the severe symptoms to his lumbar spine but also relatively mild symptoms including a runny nose and mild headache in early January 2019. There is no evidence in Dr Latif’s clinical records or elsewhere of the applicant reporting shoulder symptoms during this period.
I do accept the applicant’s submission that in this same period he experienced severe symptoms of pain rated 10 out of 10 in his back and both legs. Dr Papantoniou’s reports referred to constant pain radiating to both legs and loss of bowel and bladder function. This led Dr Papantoniou to perform lumbar surgery on 3 December 2018. The applicant has submitted that this provides a reasonable explanation for the absence of reported shoulder symptoms.
It is noted, however, that the applicant does not claim that his severe back and leg symptoms masked his shoulder symptoms. The applicant’s evidence in these proceedings is that he experienced pain from the outset at the left shoulder but it was not the focus of his doctors’ attention. The applicant does not say whether he reported the shoulder symptoms or not. Given that the applicant was recorded to have reported other, less severe, symptoms in the same period, such as the symptoms in his left elbow, mild headache and runny nose, I do not find this explanation persuasive.

It is also significant that when the left shoulder symptoms were eventually reported in the contemporaneous evidence they were not reported to have commenced at the time of the injurious event. Rather, the evidence explicitly states that the symptoms came on after the lumbar surgery.
In his report of 28 January 2019, Dr Hanna reported that the applicant had complained of ongoing left shoulder pain “post-surgery”. Dr Hanna speculated that this may have been caused by the positioning of the applicant’s upper limbs on the operation table.
Similarly, Dr Latif recorded on 29 January 2019 that the applicant complained of pain over the shoulder noticed after the surgery. Dr Latif’s record specifically states that the applicant had “no pain before surgery”.
The contemporaneous evidence of Dr Hanna and Dr Latif therefore appears to contradict the applicant’s evidence that he experienced left shoulder pain from the date of the injurious event.
Clinical records must of course be approached with caution. They are not prepared for the purposes of litigation and are written by busy doctors and often contain errors. The letter from Dr Hanna is, however, of a different character in that it appears to be a report to another of the applicant’s treatment providers giving an account of symptoms, which in his opinion required further investigation.
It is apparent from the contemporaneous evidence that Dr Latif proactively managed and investigated the applicant’s left shoulder symptoms from that point onwards. The applicant was referred for radiological investigations and underwent multiple steroid injections. The matter was also discussed with Dr Papantoniou.
It was not until 12 months after the injurious event and following the failure of conservative treatment that the applicant was first referred to Dr Kuo. It is on this occasion that a history of landing and injuring his back and left shoulder was given. Dr Kuo made it clear in his subsequent report for the applicant’s solicitors that his opinion on the causal relationship between the left shoulder and the injurious event was based on the history provided to him. Dr Kuo has not made any comment on the delay in reporting left shoulder symptoms or the evidence of an onset of symptoms following the lumbar surgery.
Dr Bodel’s report is characterised by the same features. Dr Bodel took a history that was consistent with the applicant’s statement evidence, quoted from Dr Kuo’s report and agreed with Dr Kuo’s opinions. Dr Bodel also made no comment on the delay in reporting symptoms or the evidence of an onset of left shoulder symptoms following the lumbar surgery.
The delay in reporting symptoms is, however, carefully dealt with by Dr Burrow. Dr Burrow commented upon the early evidence of the applicant’s injury and the absence of reported left shoulder symptoms. Dr Burrow noted that Dr Kuo was not involved in the applicant’s early care. Dr Burrow considered it was conceivable that the applicant could have injured his left shoulder in the injurious event but gave the opinion, having regard to the nature of the applicant’s shoulder pathology, that this would have been documented both at Westmead Hospital and by his general practitioners.
Like Dr Burrow, and consistently with the applicant’s submissions, I accept that the contemporaneous evidence does suggest multiple injuries to the left hand side of the applicant’s body. This includes contemporaneous evidence of left chest, left hip and left elbow symptoms. As a matter of common sense, it is easily conceivable that the applicant’s left shoulder could have been injured in this mechanism.
Despite this, Dr Burrow did not consider it credible that the applicant had a significant cuff tear as a result of the fall but did not present with localised pain about the shoulder that would have been noted by one of the many physicians or allied health personnel treating him.
Dr Burrow has specifically considered whether the symptoms could have been confused or obscured. In particular, Dr Burrow considered whether the complaints of left elbow pain could in fact have originated from the shoulder pathology. Dr Burrow excluded this possibility, stating that he had heard of rotator cuff pain going down to the elbow, but not simply presenting with elbow pain.
Dr Burrow’s analysis is consistent with the contemporaneous evidence, careful and well-reasoned. Unlike the reports of Dr Kuo and Dr Bodel, it specifically addresses the contemporaneous medical evidence and the delay in the reporting of left shoulder symptoms. It is for these reasons that I prefer Dr Burrow’s opinion on causation over the opinions given by Dr Kuo and Dr Bodel.
As noted by the applicant’s submissions, Dr Burrow has not provided an alternative explanation for the left shoulder pathology or the onset of symptoms. That was not, however his task. Dr Burrow has provided an opinion on the claim made in these proceedings of a frank injury to the left shoulder occurring on 7 August 2018.
The conclusion I have reached is inconsistent with the applicant’s own evidence. The task before me, however, is to weigh the evidence of the applicant together with other objective evidence, or the absence of it.
It may be that the left shoulder condition is causally connected to the injury on 7 August 2018 in the manner speculated upon by Dr Hanna. That is not, however, a question I am tasked with determining in these proceedings.
It is clear on the evidence of both medicolegal experts and Dr Kuo that the applicant has significant pathology at his left shoulder and that the surgery proposed by Dr Kuo is reasonably necessary treatment for that pathology. I am not, however, satisfied on the balance of probabilities that the need for surgery results from an injury to the left shoulder on 7 August 2018 as claimed.
For the reasons given above there will be an award for the respondent in respect of the claim of injury to the left shoulder on 7 August 2018.
The applicant has not discharged his onus of establishing that the surgery proposed by
Dr Kuo is reasonably necessary as a result of the injury on 7 August 2018.

Rachel Homan
MEMBER

29 April 2021