Jones v Hillside Brae Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Hillside Brae Pty Ltd [2023] NSWPIC 559
APPLICANT:	Natalie Jones
FIRST RESPONDENT:	Hillside Brae Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	23 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation for injury to cervical spine and right shoulder; right shoulder injury and causation disputed; consideration of Mason v Demasi, Davis v Council of the City of Wagga Wagga, and Kooragang Cement Pty Ltd v Bates; Held – right shoulder injury resulted from subject injury; matter referred to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), the applicant sustained injury to the right upper extremity as a result of injury on 18 June 2019. Pursuant to s 9A of the 1987 Act, employment was a substantial contributing factor to the injury to the right upper extremity. 2. Matter remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 Act (the 1998 Act) for assessment as follows: a. Date of injury: 18 June 2019 – personal injury b. Body systems / parts: i. cervical spine ii. right upper extremity. c. Method of assessment: whole person impairment. 3. The documents to be reviewed by the MA are: a. Application to Resolve a Dispute and attached documents, and b. Application to Admit Late Documents dated 16 August 2023 and attached documents, being the Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Natalie Jones (the applicant) claimed lump sum compensation in respect of the cervical spine and right upper extremity as a result of injury on 18 June 2019 in the course of her employment with Hillside Brae Pty Ltd (the respondent).
In a dispute notice dated 8 November 2022, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed liability for the claim for the right upper extremity. Injury to the cervical spine was not disputed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing of this matter on 19 September 2022, the applicant was represented by Mr Grant of counsel, instructed by Mr Ryan, solicitor, and the respondent by Mr Hart of counsel, instructed by Ms Davis, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Application to Admit Late Documents dated 16 August 2023 and attached documents, being the Reply and attached documents.

Oral evidence

There was no oral evidence and no application for cross examination.

Statement of the applicant

The applicant provided a statement dated 12 July 2023.
The applicant stated that on 18 June 2019 she was moving a resident with another worker. The other worker attended to the care and comfort of the resident, while the applicant manoeuvred a mechanical lifter with the patient in a sling. The applicant said she physically took all the weight and pressure of the lifter and resident and, as she did so, she felt immediate sharp pain in her neck and right shoulder, as well as down into her right leg.
The applicant said she made a claim under workers compensation and injury to her neck, which was accepted, although she “had symptoms in [her] right shoulder from day one”. She said that she continues to experience the effects of the injury to date, and she continues to feel symptoms in her neck and right shoulder, hand and fingers. The applicant stated that her right shoulder pain comes and goes, and she gets pins and needles from her neck down into her right side, through the shoulder, arm and into the fingers.

Dr Pitham

Dr Pitham, neurosurgeon, provided a report dated 12 August 2019 to Dr Shaikh. He noted that “…she is small of stature and weighs only 55kgs, and so much of the work that she is required to undertake involves a relatively significant exertion for her…”
He recorded a history that:
“She began noticing some weeks ago that her neck was increasingly stiff and sore, and she began to develop paraesthesias and pins and needles in her right arm. This progressed to brachialgia in the right arm, radiating from the right shoulder into the right forearm. It was also associated with an increase in her neck pain. Things continued to deteriorate until the early morning of 19 June when she awoke to find her entire right side having severe pins and needles and pain, and at that point she sought your advice.”
He was of the opinion that the applicant:
“…suffered from an acute cervical radiculopathy at C6, relating to her mild degenerative cervical spine changes. It's clear that the extent of the heavy work that she's required to perform is impacting upon her cervical spine and causing her some discomfort, and is also possibly responsible for this recent flare up. Nonetheless, as with most cervical radiculopathies of this kind, things have settled down spontaneously, and further intervention.
That being said, she will benefit greatly from some range of motion exercises and general neck strengthening physiotherapy, and I am requesting permission from Workers Compensation for this... I have reassured her that she will continue to improve over the coming weeks, and that when you feel she is safe, she could consider returning to work. That said, I believe some consideration will need to be given to altering her working. responsibilities so as to avoid activities that involve extreme amounts of lifting.”

Dr Shaikh

Dr Sheikh, the applicant’s treating general practitioner (GP) provided a number of documents.
In a referral letter to Dr Day and Dr Pitham dated 22 June 2019, Dr Shaikh noted that the applicant had complained of pain with “weakness and tingling in right arm…aggravated on lifting her arm. ? cervical radiculopathy…”
In an entry dated 21 June 2019, Dr Adappa, of the same practice as Dr Shaikh, noted right sided paraesthesia and “paraesthesia R arm an R leg early morning r leg improved R arm paraethesia still +”. A CT scan brain and cervical spine was arranged. There was no description of injury at work or mechanism of injury.
In a clinical note dated 22 June 2019, Dr Shaikh noted “cervical radiculopathy” with similar notes recorded as those in the referral letter of the same date noted above. There was no description of injury at work or mechanism of injury. An MRI brain and cervical spine was arranged.
In an entry dated 10 February 2020, Dr Shaikh noted “ongoing pain in her neck and arms”.

Physiotherapy, occupational therapist and exercise physiologist notes and reports

Attached to the ARD were physiotherapy notes commencing on 14 August 2019.
The initial note dated 14 August 2019 recorded work injury on 18 June 2019 and noted that “19/06/2019 R) sided P+Ns into hand gradually worsend [sic] and into arm and leg with associated pain and loss of power”.
The same note also had a diagram that recorded the site of symptoms. In my view this diagram recorded symptoms in the neck and the right shoulder region.
In a “workplace assessment report” dated 4 October 2019, Ms O’Meara, occupational therapist, recorded a history of injury on 18 June 2019 with sudden onset of neck pain, and waking up at 4.00am the next morning “in a lot of pain with pins and needles and numbness in her right neck, upper limb and torso”. Ms O’Meara observed the applicant “to have reduced range of motion in her cervical spine and with her upper limbs”.
In a physiotherapy note dated 11 October 2019, it was recorded that the applicant had been “very sore in shoulders…P+Ns in bilat hands with positioning/sleeping”. On 4 November 2019 it was noted “intermittent P+Ns R) hand”.
On 4 December 2019 it was noted “…post gym session R) lat and post shoulder. Nil sharp pain in R) subocc, reports numbness bilat hands and P+Ns with prolonged grip/ posture…constant ached resolved, only int. pain with movements/activities”.
In an exercise physiologist note dated 18 December 2019 a history of arm weakness was noted and current symptoms included “neck and arm”.
In a report dated 16 March 2020, Mr Mears, exercise physiologist, noted that on assessment the applicant displayed decreased bilateral shoulder range of movement.

Imaging/scans/investigations

In a CT brain and cervical spine report dated 21 June 2019, Dr Gupta recorded the clinical history as “paraesthesia to the right side and right leg”.
In an MRI cervical spine report dated 24 June 2019, Dr Ahamed recorded clinical information as “complains of pain, weakness & tingling of right arm, similar symptoms in the right lower limbs, aggravated on lifting the arm.”

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided medico-legal reports to the applicant’s solicitors dated 1 July 2022 and 29 June 2023.
In his report dated 1 July 2022, Dr Bodel recorded a history of injury on 18 June 2019 while assisting a resident in a “bed to chair transfer”. He noted that during the transfer the applicant felt sudden pain in the neck, top of the right shoulder, the interscapular region of the thoracic spine and pain down the right leg. Dr Bodel noted the CT scan of 21 June 2019.
On examination, Dr Bodel found tenderness in the rotator cuff on the right hand side, as well as findings in relation to the cervical spine. He also found restricted range of movement in the right shoulder greater than the left. He noted impingement in the right shoulder but no instability. He noted non-verifiable radicular complaints in the right upper limb.
He described a history of injury to the applicant’s neck on 18 June 2019 and development of right shoulder pain and non-verifiable radicular complaints in the right upper limb. He diagnosed injury to the C5/6 and C6/7 discs in the cervical spine as a result of the subject incident. He assessed permanent impairment in respect of the cervical spine and also in respect of “the rateable restriction of right shoulder movement”.
In his report dated 29 June 2023, Dr Bodel stated that he disagreed with Dr Machart’s view that there was no history of a mechanism of injury which could have caused rateable pathology in the region of the right shoulder. Dr Bodel noted the history he had recorded that during the subject incident the applicant had felt pain in her neck and in the top of the right shoulder, as well as the interscapular region of the thoracic spine and down the right leg.
Dr Bodel was of the opinion “the mechanism of the transfer in my view has caused a traction injury to the neck and right shoulder and has probably led to the rotator cuff pathology in that shoulder…” although there were no investigations of the right shoulder that he had seen.
Dr Bodel noted the observation by Mr Mears of restriction of neck movement and decreased bilateral shoulder range of motion. Dr Bodel noted that this was an observation of a rateable restriction of shoulder movement.
Dr Bodel also observed that Dr Machart had recorded restricted range of motion in both shoulders, the right worse than the left, which confirmed Dr Bodel’s clinical findings but did not find a causal link between mechanism of injury and restriction of shoulder movement.
Dr Bodel was of the opinion that the probable diagnosis of the right shoulder injury is rotator cuff pathology caused by the traction injury applied to the right shoulder in the subject incident. He did not believe this was a consequential or frank injury but was a frank injury that occurred at the time of the subject incident. He was of the opinion that employment was a substantial contributing factor to the injury. He thought an MRI would help to clarify the pathology, which he strongly suspected was rotator cuff pathology, then the injury may well have an aggravation, acceleration, exacerbation and deterioration of a disease process, and the work injury is the main contributing factor to the aggravation, etc, of that disease process.
He disagreed with Dr Machart’s view that it is very difficult to suffer substantial injury to the neck and right shoulder concurrently, as the history given was a traction injury causing injury to the neck and right shoulder concurrently. He noted that Dr Machart had taken a forensic view of the material, as he had indicated that the shoulder injury was not part of the contemporaneous evidence. Dr Bodel observed that the local doctor had not mentioned the shoulders, although they had been mentioned later by the treating exercise physiologist.

Dr Machart

Dr Machart, orthopaedic surgeon, provided a medico-legal report dated 28 September 2022 to the respondent’s solicitors.
Doctor Machart noted a history of injury on 18 June 2019 when the applicant “was involved in a 2-people sling lift, trying to transfer a client to shower. She experienced a crunch in the neck, and immediate pain on the right side of the neck. The pain involved the neck and radiated down the right arm.”
Dr Machart noted current symptoms were:
“…pain in neck, especially on the right side, extending into the right shoulder and arm, associated with pins and needles glove distribution, all fingers and thumb, dorsal and volar. She reported weakness, inability to reach up, put clothing on the line, weakness to grip, and inability to lift a heavy kettle.”
On examination in respect of the shoulders, Dr Machart noted that pain was reported when moving the shoulder in any direction. He recorded range of motion with movement of the right shoulder less than that of the left. He did not find “positive impingement” and noted pain in all directions and “display of hypersensitivity”.
He noted that he was provided with “relevant medicals”, including “Dr Thomson, IMC 01/05/2020, video link assessment”, in which it was noted that there was a neck injury on 18 June 2019, “assisting, using manual lifters, hurt neck. Right neck pain. Radiation to the right arm. Pins and needles and numbness…” he noted the report of Dr Bodel dated 1 July 2022 and the CT scan of 21 June 2019.
Dr Machart also noted GP records of 21 June 2019, “22 June 2016” and 16 December 2019. The date of 22 June 2016 appears to be a typographical error.
Dr Machart diagnosed aggravation of pre-existing cervical spondylosis but not radiculopathy. He stated that “there is no evidence of additional, concurrent, or consequential injury to the shoulder. It would be very difficult to suffer substantial injury to the cervical spine and shoulder concurrently given the description of injury.”
He also stated that he “did not diagnose injury to the right shoulder. Reasons are outlined above. This is an issue which was raised by Dr Bodel that lacks contemporaneous evidence.” Dr Machart further stated that:
“Dr Bodel's assessment of shoulder injury was not in keeping with the description of the mechanism of injury, for reasons I outlined under paragraph ‘Opinion’. Shoulder injury was not part of contemporaneous evidence. Shoulder pathology remains in Dr Bodel's assessment only, and is not part of prior or subsequent assessments.”

Reasons

The respondent did not dispute injury to the cervical spine. The applicant did not claim a consequential right shoulder condition.
It was the applicant’s case that she either sustained a right shoulder traction injury, or a radicular injury into the right shoulder, or both.
It was the respondent’s case that there was a lack of contemporaneous complaint, and that the opinion of Dr Machart should be preferred, and also that a radicular injury is not an injury to the shoulder.
The applicant submitted that her credit was not in issue, and also there had been no application to cross examine the applicant. As to the latter point, I accept the respondent’s submission that the respondent may make submissions on credit, notwithstanding there was no cross examination or application to cross examine, although it must be evident from the documents admitted that this is an issue. In this matter a lack of contemporaneous records was open to be argued. However, the respondent went no further, appropriately in my view, than to submit that the contemporaneous documents should be accepted in preference to the applicant’s evidence, that is the applicant’s evidence in her statement and in her history given to Dr Bodel should not be accepted because contemporaneous documents do not record complaints of shoulder injury, and that such documents are consistent with complaints of radicular pain.
The respondent submitted that it is not enough that the applicant had symptoms in the right arm, she must satisfy ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act). It was submitted that in the same injury circumstances in the decision of Agang v Telum Contract Labour Hire Pty Ltd[1] (Agang), the Commission entered an award for the respondent in respect of these issues.
[1] [2023] NSWPIC 233.
I do not accept the respondent’s submissions in relation to Agang. As was observed in Kooragang Cement Pty Ltd v Bates[2] (Kooragang), “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.” A finding in respect of causation, that is whether injury results from an incident, is a question of fact in each case, including in Agang. It is not a question of law, and has no effect in another case, which must be determined on its own facts. Thus, the question of causation in respect of ss 4 and 9A is a question of fact in each case, having regard to the legal principles to be applied, such as in the decision of Kooragang.
[2] (1994) 35 NSWLR 452 at [463].
The respondent also submitted that radicular injury is not shoulder injury, it is injury to the cervical spine. It is not necessary to deal with this issue, as I have found that there was a shoulder injury, as distinct from radicular injury.
The respondent has made submissions, and Dr Machart has observed in his reasoning, in relation to lack of reference in contemporaneous documents to right shoulder injury.
It should firstly be noted that I was not taken to any other issue in relation to the applicant’s credit. There was no dispute as to the mechanism of injury described by the applicant and recorded by Dr Bodel. Dr Machart did not in his findings or observations impugn the credit of the applicant, other than referring to a lack of contemporaneous records. He did not say that he did not accept the history that was given to him.
Second, the first reference to shoulder symptoms was the physiotherapy diagram of 14 August 2019, a period of less than two months following the incident of 19 June 2019. This diagram was accepted by Dr Bodel as evidence of right shoulder pain. I accept that this was evidence of right shoulder symptoms.
Thereafter, restrictions and pain were noted in physiotherapy notes on 4 October 2019 and 11 October 2019 respectively, the latter referring to pain in the shoulders, supporting the former reference to upper limb restriction of movement. That is, this was a period of somewhat more than three months after the incident of 19 June 2019.
Dr Shaikh in his clinical notes initially referred to right arm numbness on 19 June 2019. The clinical notes did not record a history of injury or of mechanism of injury. He also recorded in his letter of 22 June 2019 right arm pain and weakness. This history of right arm pain was not recorded in the clinical notes at that time. This is not a criticism of Dr Shaikh as he was dealing with issues in relation CT and MRI investigations.

Dr Pitham, neurosurgeon, in his report made it clear that the applicant had been referred in respect of neck pain. He also recorded symptoms in respect of the applicant’s right arm in terms of brachialgia. He also clearly identified his examination as a neurological examination. This of course is no criticism of Dr Pitham. He was dealing with neurological considerations.
The respondent in submissions referred to the care that should be taken when considering clinical records, but it submitted that this does not mean that the Commission cannot rely on those records. This was a reference to decisions including Mason v Demasi[3] in which it was observed that:
[3] [2009] NSWCA 227 at [2].
“…the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
In Davis v Council of the City of Wagga Wagga[4] (Davis), it was observed that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.”
[4] [2004] NSWCA 34 at [35].
In my view, the history recorded in the clinical notes of Dr Shaikh is not inconsistent with the applicant’s evidence that she suffered right shoulder pain “from day one”. There was no history of injury or mechanism of injury recorded in those notes, although discussions with workers compensation insurance officers were recorded, and workers compensation certificates of capacity were recorded, indicating to me that not all matters were recorded in those notes. In my view it is entirely plausible that the applicant did complain of right shoulder symptoms from “day one”. Right arm pain was noted in the MRI report of 24 June 2019. This, as well as the physiotherapy diagram of 14 August 2019, accepted by Dr Bodel, together with the later notes and reports referred to above, in my view support the finding that the applicant did complain of right shoulder symptoms from 18 June 2019. I apply the caution referred to in the decisions of Mason v Demasi and in Davis. In my opinion, the applicant’s evidence, and the history recorded by Dr Bodel, should be accepted when regard is had to the limitations of the GP clinical records, the record of arm complaints and the relatively short period of time before the diagram of 14 August 2019, with subsequent supporting physiotherapy records.
It was submitted that the applicant’s complaints were radicular, and not right shoulder complaints. Dr Bodel was of the opinion that the applicant’s complaints were right shoulder complaints, in addition to radicular complaints. Dr Machart did not express an opinion on this point, as he pointed to a lack of contemporaneous evidence. Dr Pitham dealt with neurological symptoms in the context of neurological examination. In my view, Dr Bodel dealt with this issue, Dr Machart did not, and Dr Pitham dealt with neurological issues alone. I accept the opinion of Dr Bodel in this regard.
Dr Bodel, in disagreement with Dr Machart, opined that the incident on 18 June 2019 was a traction injury that caused injury to the cervical spine and right shoulder concurrently. The applicant in her statement said she was physically taking all the weight and pressure of the lifter and the resident. This history was not challenged by the respondent.
The history of injury recorded by Dr Bodel in my view provided a fair climate for him to express his opinion that this was a traction injury. There was no medical opinion to contradict Dr Bodel’s opinion that this was a traction injury, and Dr Machart did not explain how the mechanism of injury that he recorded, which was not dissimilar to that of Dr Bodel, could not have resulted in concurrent injury to the cervical spine and right shoulder. Indeed, the opinion of Dr Machart only went so far as to say that “it would very difficult to suffer substantial injury” concurrently. I prefer the opinion of Dr Bodel in this regard. Dr Machart appeared to accept that Dr Bodel had described in his report an injury to the right shoulder, although he did not agree. To the extent that there is any implied or other submission that Dr Bodel did not record injury to the right shoulder, I note that he in fact in his history recorded sudden pain in the top of the right shoulder. I accept that this, together with the history of the incident, was the foundation for his opinion in relation to injury to the right shoulder, which was of course developed in relation to his findings and opinion as traction injury and diagnosis.
As to diagnosis of the right shoulder condition by Dr Bodel, Dr Machart stated that he did not diagnose injury to the right shoulder on the basis of difficulty in sustaining concurrent substantial injury, which I have not accepted, and on the basis of an absence of contemporaneous evidence, which I have also not accepted. It follows that I prefer the opinion of Dr Bodel that the diagnosis is one of “rotator cuff pathology”. He expressed this as a “probable diagnosis”, although he later in the same report appeared to defer to the findings of a recommended MRI scan, which had not been done, and to provide a provisional diagnosis. It was said by the respondent that this diagnosis was provisional and speculative, as it was made in the absence of investigation evidence such as an MRI.
I do not accept this submission. In my opinion a suitably qualified medical expert, in this case Dr Bodel, who is an orthopaedic surgeon, may provide a persuasive opinion based upon their clinical assessment. It is not necessary to have an MRI or CT scan in these circumstances. There was no evidence before me that Dr Machart had challenged Dr Bodel’s diagnosis. Dr Machart expressed his opinion on the basis that shoulder injury was not part of the contemporaneous evidence and he said that shoulder pathology was only in Dr Bodel’s assessment and “is not part of prior or subsequent assessments”. Dr Machart may not have agreed with Dr Bodel, but he did not say that Dr Bodel was wrong, and his reasoning was based on what he said was a lack of contemporaneous evidence. I have found to the contrary.
It was also submitted that Dr Bodel in his report of 1 July 2022 referred only to restricted range of movement in his assessment, made in respect of permanent impairment, although it was acknowledged that his opinion was clarified in his report of 29 June 2023. I do not accept this submission. As discussed above, Dr Bodel noted a finding on examination of tenderness in the rotator cuff on the right hand side. He also noted impingement in the right shoulder but no instability.
In my view the reports of Dr Bodel should be read as a whole when considering his diagnosis. When read as a whole, Dr Bodel was of the opinion that the probable diagnosis was rotator cuff pathology of the right shoulder. His recommendation for an MRI, and discussion with regards to “if there is indeed rotator cuff pathology”, is in my view within the context of his probable diagnosis of right should pathology. Although he stated that he was “uncertain of the exact pathology present” this was in response to a question as to whether additionally or alternatively there had been an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition. In any event, Dr Bodel continued in his response that he strongly suspected “based on the clinical presentation, then the injury may well be the aggravation, acceleration, exacerbation and deterioration of a disease process”. In my view, the opinion of Dr Bodel as to diagnosis was not speculative. There was no submission that Dr Bodel is not qualified to give an expert opinion as to diagnosis. I do not accept the respondent’s submissions in this regard. I accept the opinion of Dr Bodel that the probable diagnosis is right shoulder rotator cuff pathology.
The respondent also submitted that in reaching a diagnosis, Dr Bodel did not make a distinction between the left and right shoulders, and how that was related to the subject incident, when the clinical records referred to both shoulders. I do not accept this submission. The diagram of 14 August 2019, although indicating a shaded area of site of symptoms on both sides of the neck, noted symptoms with respect to the right side, including pain. Pain was also later noted in both shoulders. However, Dr Bodel made a specific record of pain to the top of the right shoulder at the time of the incident and he made the findings on examination that I have noted above. He also noted that Dr Machart had made similar findings of loss of range of movement of both shoulders, the right greater than the left. In my view, this is sufficient distinction for Dr Bodel to identify both the injury and the supporting evidence of injury to the right shoulder.
The civil standard of proof, that is on the balance of probabilities, applies to decision making in the Commission. As was observed in Geyer v Redeland Pty Ltd,[5] in dealing with a claim in negligence:
“[a] finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. Whether or not a court is so satisfied will depend upon the whole of the evidence. Relevantly, a plaintiff bears the onus of satisfying a tribunal of fact, on the balance of probabilities, that a defendant was negligent. The evidence may give rise to more than one possibility, but in that circumstance, the principle is the same. For the plaintiff to succeed, the tribunal of fact must be satisfied on the balance of probabilities of facts that will establish liability in the defendant”.
[5] [2013] NSWCA 338 at [54].
In this case it was said by the respondent that the evidence gives rise to radicular symptoms only. On the evidence there were two possibilities, that of radicular symptoms, and also that of shoulder complaints. I have accepted on the balance of probabilities the applicant’s statement evidence and the history recorded by Dr Bodel. I have applied the caution in approaching clinical records having regard to Mason v Demasi and Davis. I have accepted on the balance of probabilities Dr Bodel’s view that there was a right shoulder injury on 18 June 2019 and that relevant physiotherapy evidence supported the applicant’s account of her right shoulder symptoms, and also his opinion as to injury and diagnosis.
The decision in Kooragang provides for a common sense approach to causation in workers compensation matters. In my view, the applicant sustained injury to her right shoulder on 18 June 2019, as I have found on the balance of probabilities that the applicant’s statement and the history recorded by Dr Bodel is accepted, having regard to my findings in relation to the clinical records, particularly the physiotherapy records, and applying the relevant caution in considering the clinical records of the GP and the report of Dr Pitham. I find on the balance of probabilities that the applicant sustained injury, pursuant to s 4(a) of the 1987 Act, to her right shoulder as a result of injury on 18 June 2019. I have accepted the opinion of Dr Bodel as to injury and I also accept his opinion that employment was a substantial contributing factor to that injury. I find pursuant to s 9A of the 1987 Act that employment was a substantial contributing factor to the injury to the applicant’s right shoulder.

[2023] NSWPIC 559

23 October 2023