Jowett v S & R Jowett Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jowett v S & R Jowett Pty Ltd [2022] NSWPIC 82
APPLICANT:	Scott Jowett
RESPONDENT:	S & R Jowett Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	28 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 expenses for left shoulder arthroscopic rotator cuff repair and biceps tenodesis; accepted injury to left foot and ankle in fall from bobcat; whether left shoulder injury and/or consequential condition; previously reported shoulder symptoms and investigations; lack of contemporaneous evidence of shoulder involvement in falls; use of crutches following hindfoot surgery; Held- the applicant failed to discharge his onus of demonstrating injury and consequential condition due to secondary fall; consequential left shoulder condition due to use of crutches; the applicant failed to discharge his onus of demonstrating that surgery reasonably necessary as a result of injury.
DETERMINATIONS MADE:	1. Award for the respondent with respect to the allegation of injury to the left shoulder on 13 June 2017. 2. Award for the respondent with respect to the allegation of a consequential condition affecting the left shoulder as a result of a fall at North Shore Private Hospital in February 2019. 3. The applicant sustained a consequential condition affecting his left shoulder as a result of the use of crutches following the injury on 13 June 2017. 4. The applicant has not discharged his onus of establishing that the left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure recommended by Dr Ed Bateman is reasonably necessary as a result of the injury on 13 June 2017.

STATEMENT OF REASONS

BACKGROUND

Mr Scott Jowett (the applicant) was in the course of his employment with S & R Jowett Pty Ltd (the respondent) when he fell from a bobcat he was cleaning on 13 June 2017. The respondent’s insurer accepted liability for an injury to the applicant’s left foot and ankle in the incident.
The applicant claims to have sustained injuries and/or consequential conditions affecting a number of other body parts, including the left shoulder, as a result of the incident. In particular, the applicant claims that while in hospital for surgery to his left foot in February 2019, he fell onto his left shoulder whilst using crutches.
On 6 April 2020, the applicant’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment of the left ankle and foot, cervical spine, lumbar spine, left shoulder, right hip and skin as result of the injury on 13 June 2017. Liability for injuries and/or consequential conditions to all body parts other than the left ankle and foot was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 June 2020.
On 27 July 2020, the applicant’s orthopaedic surgeon, Dr Ed Bateman, recommended the applicant undergo a left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure.
On 17 August 2021, the applicant’s solicitors sought review of the decision dated 4 June 2020. In a notice issued on 9 September 2021, the insurer maintained its earlier decision and also disputed a claim for the treatment recommended by Dr Bateman.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 22 October 2021. The applicant sought lump sum compensation pursuant to s 66 of 1987 Act as well as compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to the left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure recommended by Dr Bateman.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 24 January 2022. The applicant was represented by Mr William Carney of counsel, instructed by Ms Premila Dulichan. The respondent was represented by Mr James McEnaney, instructed by
Mr Robbie Elder.
During the conciliation conference, the applicant discontinued the claim for lump sum compensation, leaving only the claim for compensation under s 60 of the 1987 Act for the proposed left shoulder surgery.
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 agreed that the following issues remain in dispute:
(a) whether the applicant sustained an injury and/or consequential condition affecting his left shoulder as a result of the incident on 13 June 2017, and
(b) whether the proposed left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure is reasonably necessary as a result of the injury on 13 June 2017.

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

Applicant’s evidence

The applicant’s evidence is set out in statements made on 28 September 2019 and 25 November 2019.
In his first statement, the applicant disclosed previous injuries and compensation claims in relation to his back and leg. The applicant disclosed a minor vehicle accident in 2013 but denied any physical injuries or claims other than for property damage arising from that event. In 2008, the applicant contracted Legionnaires’ Disease at work.
On 13 June 2017, the applicant took his bobcat to a truck wash for cleaning. The applicant was standing on the bobcat bucket when the cabin unexpectedly dropped onto the chassis, causing the applicant to lose his balance, twist and turn on his left foot then jump to avoid landing on the bucket teeth or the wash pit steps. The applicant fell into the pit and hit the right side of his head on the western pit wall. Instinctively, the applicant put out his left hand to stop himself from falling further and his left shoulder hit the eastern pit wall.
The applicant was assisted out of the wash pit and taken to Gosford Hospital. The applicant was instantly in pain and could not bear weight on his left foot. The applicant was having difficulty with his memory and could not recall things like his date of birth and address. The applicant remained in hospital for about a week.
The applicant said that at the time his left shoulder was sore, but he was more worried about his foot. The applicant expressed the belief that he told his general practitioner,
Dr Cavanagh, about the shoulder being sore initially after the incident.
On 14 February 2019, the applicant underwent a left subtalar joint fusion procedure performed by Dr Peter Lam at North Shore Private Hospital.
On 15 February 2019, the applicant was getting ready to go home following the surgery. The crutch the applicant was walking with got caught in the applicant’s bag and he stumbled into the wall and hit the wall with his left shoulder, falling to the ground. The applicant reported the fall to nurses who rang Dr Lam. Although the applicant’s shoulder was sore, he was more worried about his foot and a further x-ray was done.
The applicant stated:
“Initially after I left hospital my shoulder was sore and niggling, but I wasn't really using it because I couldn't do any physical activity with my foot. I also thought that the pain in the shoulder was because I was having to use the crutches.
It wasn't until I got off the crutches and started being able to do some exercise that the shoulder became much more problematic. in particular when I started trying to swim as a form of low impact exercise for my shoulder.”
In the statement of 25 November 2019, the applicant recounted the fall at North Shore Private Hospital in the following terms:
“Straight after the surgery when I was mobile, I placed my crutch on a towel that was on the ground in the hospital at Royal North Shore Private and it slid out. I fell over and dislocated left shoulder.
…
Dr Lam knows that I fell over in hospital. I thought that I could deal with the shoulder injury therefore did not tell the Insurer. It was fine when I was not doing anything with it, however when I was released from hospital a couple of days later, the crutches caused the shoulder pain, due to the pressure placed on it. I put up with the pain, as I was focusing on recovering from the foot surgery.”

Treating evidence

The report of an ultrasound performed on 22 August 2013 which found:
“Bilateral bursal change, left greater than right. Subtle changes supraspinatus tendon on the left suggestive of a small tear.”
The clinical records of Narara Valley Medical Centre include a consultation with Dr Dean Cavanagh on 18 January 2016 recorded as follows:
“acute injury shoulder after fall
been using extra phys
…
u/s and review.”
An ambulance electronic medical record dated 13 June 2017 referred to the applicant falling off the bobcat into the pit below, landing feet first and hitting his head against the wall of the pit. The applicant reported severe pain to the left ankle and slight swelling to the left side occipital area of the head. The applicant had no cervical pain or pain in the thoracic/lumbar area.
Records from Gosford Hospital relating to the admission on 13 June 2017 indicate that the applicant underwent investigations of the brain, pelvis and cervical spine in addition to the left ankle. Orthopaedic consultant notes record:
“49 yo m lanscaper fall off top off bobcat - approx 3m left foot into pothole also hit back of head ? LOC 1 min.”
The discharge referral notes from Gosford Hospital referred to the applicant landing on his feet then falling forwards. Notes were made of an examination of the occipital bone, cervical spine, chest, abdomen, lower limbs and back. In relation to the applicant’s upper limbs, the notes stated:
“Upper limb: No bony tenderness, NVI, full ROM all joints, superficial abrasions over left middle finger and right volar surface distal forearm.”
The triage notes entered at Gosford Hospital stated:
“FALLEN FROM TOP OF BOB CAT INTO WET PIT WITH HARD FLOOR- ? HAS HEAD STRIKE ON WAY DOWN AND LANDED FLAT FOOT- FALL APPROX 3M NIL NECK PAIN CHEST CLEAR.”
A letter of referral to physiotherapy written by Dr Cavanagh on 23 August 2017 requested consideration of the applicant’s right wrist for possible carpal tunnel syndrome.
Handwritten progress notes relating to the applicant’s admission to North Shore Private Hospital on 14 February 2019 recorded that on 15 February 2019 the applicant had been assisted to shower.
On 16 February 2019, the progress notes recorded:
“Nursing. Patient showered self. Stated he tripped over plastic bag he was removing from left leg plus fell to R knee. Observation satisfactory. RMO to review… Patient encouraged to remain in bed…”
Later on the same date it was recorded that an x-ray had been reviewed. There were “nil significant changes” and the applicant was okay to discharge.
On 10 April 2019, Dr Cavanagh recorded a clinical note stating:
“left shoulder post fall impingment 14th feb.”
On 24 October 2019, Dr Cavanagh noted:
“shoulder impingment /relatoed to pushing self up slip in shower.”
Similarly, on 17 December 2019, Dr Cavanagh recorded:
“left shoulder impingment? related to fall/crutches /swimming difficult.”
The report of an ultrasound of the left shoulder performed on 2 March 2020 found:
“Small partial thickness articular surface subscapularis tendon tear. Chronic supraspinatous tendinopathy without a distinct tear. No full- thickness rotator cuff tendon tear. Subacromial bursitis.”
Orthopaedic surgeon, Dr Bateman prepared a report for Dr Cavanagh on 27 July 2020.
Dr Bateman took a history of the fall on 13 June 2017 and stated:
“He is also struggling with the left shoulder as a direct result of the fall, but also the fact that he is heavily reliant on the crutches and he has had a couple of slips landing on the shoulder, again which is all related to his workplace event.”
Dr Bateman took a history of prior symptoms in the left shoulder:
“Of note he had a bit of a niggle in 2013 and the ultrasound showed that the shoulder is completely normal with no signs of any pathology and it appropriately settled with a small amount of physiotherapy.”
Dr Bateman expressed the view that there was no doubt the applicant’s left shoulder condition directly related to the workplace accident on 13 June 2017.
On the same date, Dr Bateman wrote to the respondent’s insurer requesting approval to undergo a left shoulder arthroscopic surgery including rotator cuff repair and biceps tendon tenodesis.

Dr Dias

The applicant relies on medicolegal reports prepared by consultant occupational physician, Dr Uthum K Dias, dated 25 March 2020 and 18 January 2021.
In his first report, Dr Dias took a history of no significant relevant pre-existing injuries or conditions affecting the applicant’s shoulders. Dr Dias did, however, record that the documents before him included:
“Bilateral shoulder ultrasound dated 22 August 2013. The comment stated ‘bilateral bursal change, left greater than right. Subtle changes supraspinatus tendon of the left suggestive of small tear.’”
Dr Dias took a history of the incident on 13 June 2017, recording that the applicant felt excruciating pain in his neck, “right shoulder” and left foot region.
Dr Dias took a history of the fall on 14 February 2019 as follows:
“During his inpatient stay at the North Shore Private Hospital, Mr Jowett recalled that he lost his balance and slipped, whilst getting out of the shower, on the evening of 14 February 2019 whilst using a crutch with his left hand to support his left leg. As a result of this incident, Mr Jowett jarred his left shoulder, and was later diagnosed, following imaging studies of having sustained acute rotator cuff tendon tears.”
Dr Dias recorded an examination of the left shoulder, noting that the applicant was tender to palpation over the anterior and superior aspects of the left glenohumeral joint. Restriction of movement in abduction flexion and internal rotation was noted.
Dr Dias made a diagnosis in relation to the left shoulder as follows:
“Mr Jowett also sustained a consequential injury to his left shoulder, on the evening of 14 February 2019 after slipping in the shower following his left hind foot surgery. He has subsequently been diagnosed with left shoulder rotator cuff tendon tears, as a result of this injury.”
Dr Dias made an assessment of whole person impairment of the left shoulder with no deductions for any pre-existing condition.
In his supplementary report, Dr Dias noted that the applicant continued with symptoms of pain, stiffness and discomfort affecting the left shoulder. The applicant had been seen by
Dr Bateman who recommended surgical intervention in the form of arthroscopic rotator cuff repair and biceps tenodesis.
On this occasion, Dr Dias recorded a history of mild transient symptoms of bilateral shoulder pain prior to the subject accident. The symptoms were always transient and usually resolved with conservative treatment. The applicant said he was pain free and asymptomatic in his shoulders for several years prior to the accident on 13 June 2017.
The applicant was noted to be seeing a physiotherapist and acupuncturist for symptoms in the left shoulder. The applicant was also using hot packs and a TENS machine. The applicant had seen Dr Bateman on one occasion in July 2020 and consulted his general practitioner on a monthly basis.
With regard to the left shoulder, Dr Dias stated:
“In my opinion Mr Jowett has suffered a consequential injury to his left shoulder as a consequence of the subject workplace accident of 13th Jun 2017. Mr Jowett sustained a significant injury to his left hind foot as a result of the subject accident. He subsequently underwent left subtalar joint fusion procedure for management of this injury on 14th February 2019 at North Shore Private Hospital. Following surgery on 14th February 2019, Mr Jowett was at North Shore Private Hospital when he slipped in the shower whilst using crutches on his left hand side, resulting in a left shoulder rotator cuff tendon injury. Mr Jowett has continued to suffer with ongoing pain, stiffness a discomfort affecting his left shoulder on a continual basis since suffering consequential injury to his left shoulder in February 2019.
I do not believe Mr Jowett would be suffering from ongoing left shoulder pain, stiffness and discomfort at the present time and had not been for his need to undergo surgery for his left hindfoot injury on 14th February 2019. Therefore, in my opinion Mr Jowett's left shoulder condition is consequential to the subject injury of 13th June 2017. I note that Mr Jowett did have transient symptoms of bilateral shoulder pain back in August 2013 for which he was referred for an ultrasound scan of his right and left shoulders. He did not however have ongoing symptoms of left shoulder pain, stiffness and discomfort, following this time period and had been pain free and asymptomatic in his left shoulder region for many years prior to the subject accident of 13th June 2017. In my opinion Mr Jowett's ongoing symptomatology, disabilities and impairments with respect to his current left shoulder condition are entirely causally attributable to the consequential injury of February 2019.”
Dr Dias expressed the view that the surgery proposed by Dr Bateman was reasonable and necessary. Dr Dias noted the applicant’s chronic symptomology over the course of the previous 23 months since the incident in February 2019 and that the left shoulder condition had not significantly improved despite conservative treatment.
Dr Dias addressed comments made by the independent medical expert qualified by the respondent, Associate Professor Miniter in report dated 12 May 2020:
“Dr Miniter does not take into account the simple causational logic, that Mr Jowett would not have had the left shoulder injury and had not been for undergoing his left subtalar fusion procedure shortly before sustaining the left shoulder injury at North Shore Private Hospital in February 2019.”

Associate Professor Miniter

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, A/Prof Paul Miniter, dated 12 May 2020.
Associate Professor Miniter took a history of the fall on 13 June 2017 and the subsequent treatment including the subtalar fusion attempted by Dr Lam in February 2019. Associate Professor Miniter noted:
“I note that in the immediate post-operative period, following the subtalar fusion, he slipped and in so doing strained his left shoulder. He felt that there had no been issues with his shoulder prior to that time though the investigations that followed would tend to suggest to the contrary.”
At the time of this report, the applicant had not seen a shoulder surgeon but planned to do so. It was noted that a supraspinatus tear was identified in a shoulder ultrasound on 22 August 2019 and was referred to in the Narara Valley Medical Centre records.
Associate Professor Miniter’s examination of the left shoulder elicited findings consistent with a rotator cuff tear.
Associate Professor Miniter noted that Dr Dias was an occupational physician and did not have orthopaedic experience.
Associate Professor Miniter gave the opinion that the issues affecting the applicant’s left shoulder were long-standing, well documented in the literature before him and unrelated to the index event:
“The matter in relation to the left shoulder is no doubt unrelated to the incident on 13 June 2017. It is highly unlikely that the episode that he has described in North Shore Private Hospital is causative of his shoulder issues. You will note that he had an ultrasound prior to that time and that this clearly demonstrated features of bilateral rotator cuff disease and a rotator cuff tear on the left hand side.”

Applicant’s submissions

Mr Carney confirmed that the applicant sought compensation for the procedure proposed by Dr Bateman.
Referring to the applicant’s statement, Mr Carney observed there was no mention of any previous injury to the shoulders. The applicant denied receiving any physical injuries in the 2013 motor vehicle accident. The circumstances of the accident on 13 June 2017 were set out in great detail.
Mr Carney submitted that there was no dispute as to the need for the surgery to the applicant’s left ankle on 14 February 2019. The applicant described walking with a crutch which got caught in a bag. The applicant gave evidence that he stumbled into a wall, hitting the wall with his left shoulder then falling to the ground.
Mr Carney noted that the applicant had been referred to Dr Bateman by his general practitioner Dr Cavanagh. Dr Bateman referred to a fall around the time the applicant was having a shower whilst at Royal North Shore Hospital as well as hitting the shoulder as the applicant fell into the pit on 13 June 2017.
Mr Carney acknowledged that Dr Cavanagh’s notes were very brief. Mr Carney referred to the clinical note of 10 April 2019 which referred to the left shoulder in the context of a fall. The applicant’s evidence was that he told Dr Cavanagh about the fall at the hospital.
Mr Carney observed that the material from North Shore Hospital said little about the shoulder. It was noted that the applicant required assistance mobilising and had impaired balance.
Mr Carney referred to Dr Bateman’s report of 27 July 2020 and his opinion that the applicant was struggling with his left shoulder as a direct result of the fall on 13 June 2017 as well as the applicant’s reliance on crutches and a couple of slips landing on the shoulder.
Dr Bateman referred to the ultrasound findings and noted a history of transient shoulder symptoms in 2013.
Mr Carney compared the ultrasound report from 2013 with that dated in March 2020.
Mr Carney submitted that there was a definite change in pathology including a clear tear in the subscapularis.
Mr Carney observed that Dr Dias did not take a history of left shoulder symptoms following the event on 13 June 2017 but did refer to the incident at North Shore Private Hospital whilst using a crutch. Dr Dias took a history of the left shoulder symptoms being symptomatic since that event.
In his supplementary report, Dr Dias acknowledged the previous left shoulder symptoms were recorded but the applicant reported being pain-free and asymptomatic in the left shoulder for many years prior to the accident on 13 June 2017. Dr Dias attributed the applicant’s impairments with respect to the left shoulder to the consequential injury in February 2019.
Mr Carney noted that both Dr Bateman and Dr Dias referred to a traumatic fall. The applicant did not allege overuse of the left shoulder but symptoms arising from trauma. Mr Carney said it was clear that the February 2019 fall only occurred because of the need for the fusion surgery to the left foot. There could be no argument that the incident was not related to the injury in June 2017.
Mr Carney acknowledged that there was some disagreement as to which incident was causative of the left shoulder condition. The applicant’s evidence was that both contributed to the applicant’s condition. The consequential condition was dominant given the onset of persisting symptoms at that time.
Mr Carney noted that the applicant gave a history to A/Prof Miniter of no issues with the shoulder prior to the incident in June 2017. Mr Carney noted that the North Shore Private Hospital records did not support the fact of any shoulder injury occurring on 14 February 2019. According to the nursing notes the applicant did, however, fall on 16 February 2019 sustaining an injury to the right knee.
Mr Carney submitted that A/Prof Miniter got the timeline wrong regarding the applicant’s scans and the timing of that event. Associate Professor Miniter said it was highly unlikely that the episode described at North Shore Private Hospital was causative of the applicant’s shoulder issues. Associate Professor Miniter referred to an ultrasound having been performed prior to that time demonstrating features of bilateral rotator cuff disease and rotator cuff tear on the left hand side.
Mr Carney submitted that on the balance of probabilities, the Commission would accept the applicant’s evidence. The Commission would find a consequential condition arising as a result of a slip whilst in hospital for the operation to the applicant’s left hindfoot on 14 February 2019.
Based on the evidence of Dr Bateman and Dr Dias, the Commission would accept that the surgery proposed was reasonably necessary in accordance with the principles articulated in Diab v NRMA Ltd[1]and Rose v Health Commission (NSW)[2].
[1] [2014] NSWWCCPD 72.
[2] (1986) 2 NSWCCR 32 (Rose).

Respondent’s submissions

Mr McEnaney conceded that the evidence did not permit any real dispute with regard to the necessity for surgery. The real issue was whether there was a primary injury or secondary condition at the left shoulder due to a fall or other secondary mechanism.
With regard to the applicant’s evidence that there was a primary injury, Mr McEnaney referred to the Gosford Hospital notes which recorded an examination of the upper limb suggesting no bony tenderness, full range of movement of all joints and only superficial abrasions of the left middle finger.
Although the applicant’s evidence suggested he had memory issues flowing from a loss of consciousness in the event on 13 June 2017, the hospital notes suggested he was alert and oriented. Whilst the Commission might be prepared to accept that the applicant bumped the shoulder in the event on 13 June 2017, that was not the same as an “injury” to the shoulder for the purposes of s 4 of the 1987 Act. The Commission was required to grapple with the pathology. A series of temporary aggravations or jarrings would not necessarily equate to a material contribution to the need for surgery. No evidence had been presented to demonstrate any changes in pathology arising from the injurious event. Nothing in
Dr Cavanagh’s notes about the 2017 fall suggested an injury to the shoulder.
Mr McEnaney noted that not long after the incident Dr Cavanagh referred the applicant for physiotherapy on his right wrist. No mention was made of left shoulder symptoms at the time. Mr McEnaney submitted that it was strange that right wrist symptoms would be mentioned and treated but not left shoulder symptoms if indeed there had been a left shoulder injury. The medical certificates around that period also made no mention of the left shoulder.
With regard to the allegation of a secondary condition, Mr McEnaney submitted that the main difficulty for the applicant was the unexplained clinical record, dated 18 January 2016, suggesting an acute injury to a shoulder after a fall, using extra physiotherapy and the applicant being referred for an ultrasound and review. Without suggesting that the applicant had made anything up, Mr McEnaney submitted that it was not uncommon for people to have changing, altering perceptions of when relevant events occurred.
In view of the clinical record of the fall in January 2016, Mr McEnaney submitted that the Commission would have some doubt that the most persuasive explanation for the applicant’s left shoulder condition was the work injury or a secondary slip. A cogent and forceful explanation for the pathology at the left shoulder could be found in the 2016 clinical note.
Mr McEnaney submitted that there was no evidence from Dr Lam and no record from nurses at North Shore Private Hospital to suggest injury to the applicant’s left shoulder in a fall at the hospital in 2019. Mr McEnaney submitted that the absence of reference to any injury to the left shoulder in a fall in the clinical notes raised doubts as to the significance of the secondary fall.
The applicant saw Dr Cavanagh on 1 April 2019 without mentioning shoulder symptoms. The first reference to the shoulder was almost two months later on 10 April 2019.
Mr McEnaney submitted that there was a seven year history between the first ultrasound of the left shoulder in 2013 and the scan performed in March 2020. Although there was some change in the pathology now requiring treatment, Mr McEnaney submitted that Dr Bateman had recorded an inaccurate history of landing heavily on his left side and injuring the shoulder in the event in June 2017. There was little reference to the use of crutches in the medical evidence. Dr Bateman failed to account for the clinical note referring to an acute injury to the shoulder in 2016.
Mr McEnaney noted that A/Prof Miniter was not persuaded that any fall at hospital could account for the applicant’s presentation noting the presence of pre-existing pathology at the left shoulder shown on ultrasound.

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.”
Insofar as the applicant also alleges a consequential condition affecting the left shoulder, it is not necessary for the applicant to demonstrate that any consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[3] observed at [45]-[46]:
“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.”

89.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.”
[5] (1994) 10 NSWCCR 796 at [810].

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 of the 1987 Act or a consequential condition affecting his 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.
There is no dispute that the applicant sustained an injury in the event on 13 June 2017. It is, however, necessary for the Commission to determine in these proceedings whether there was an injury involving the left shoulder in that event and/or whether the applicant has sustained a consequential condition at the left shoulder as a result of the injury sustained in that event.
The applicant has, in his statement dated 28 September 2019, given a detailed account of the fall on 13 June 2017 in which he explained the mechanism by which his left shoulder is alleged to have been injured. In particular, the applicant gave evidence that he put out his left hand to stop himself from falling further and in doing so the left shoulder hit the pit wall.
This mechanism and the involvement of the left shoulder is not, however, described in any of the contemporaneous evidence around the time of the event. It is also not described in the applicant’s statement dated 25 November 2019.
The ambulance records on the same day make no mention of the applicant striking his shoulder or complaining of left shoulder symptoms as a result of the fall. Similarly, the records from Gosford Hospital contain no reference to shoulder symptoms or any involvement of the shoulder in the fall.
It is notable that the applicant underwent investigations to a number of body parts during his hospital stay. The discharge notes, in particular, record findings on examination of the applicant’s upper limbs. No tenderness, neurovascular condition or restriction of movement in any joint was noted. There was reference to superficial abrasions of the left middle finger but no mention of any findings at the left shoulder.
It is of note also that the records from the day of the event refer to the applicant hitting the back of his head and losing consciousness in the fall. The applicant has also described having difficulty with his memory and being unable to recall things like his date of birth and address after the incident. The applicant has not addressed how he was able to recall with precision the mechanism of injury to his shoulder despite the hit to his head and subsequent loss of consciousness.
The applicant has sought to explain the lack of contemporaneous evidence by reference to his significant left foot injury taking priority. There is no doubt that that the injury to the applicant’s left foot and ankle was significant. The force in the applicant’s explanation is, however, reduced having regard to the specific examination of the applicant’s upper limbs at the hospital and the absence of any recorded complaints of symptoms.
The applicant has given evidence that he told his general practitioner, Dr Cavanagh about left shoulder symptoms soon after the event. Although Dr Cavanagh’s notes are in large part brief and unhelpful, it is relevant that there is no reference to left shoulder symptoms appearing in those notes for a period of almost two years following the work injury on 13 June 2017. The WorkCover certificates of capacity issued by Dr Cavanagh in this period made no reference to a shoulder injury. Not long after the event, the applicant was noted to have reported and sought treatment for symptoms at his right wrist. There was no reference in the referral for physiotherapy for the wrist condition to any left shoulder symptoms.
The value of contemporaneous evidence in considering whether an applicant has discharged his or her onus has been repeatedly endorsed by the courts: Watson v Foxman[7] and Onassis v Vergottis[8]. 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."
[7] (1995) 49 NSWLR 315.
[8] (1968) 2 Lloyds Report 403.

In Department of Education and Training v Ireland[9] 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.”
[9] [2008] NSWWCCPD 134.
The absence of contemporaneous evidence is significant in the present case, particularly given that there are prior references to left shoulder symptoms in the clinical records. The material before the Commission includes the report of an ultrasound of both shoulders performed on 22 August 2013 which described bursal change as well as changes of the supraspinatus tendon suggestive of small tear in the left shoulder.
A clinical note recorded on 18 January 2016, around 18 months before the work injury, referred to an acute injury to the shoulder after a fall and the need for physiotherapy, ultrasound and review.
This clinical record is not addressed at all in the applicant’s statement evidence and does not appear to have been brought to the attention of either Dr Bateman or Dr Dias. Dr Dias initially took a history of no prior symptoms at the left shoulder. The 2013 ultrasound was, however, brought to his attention by the time of Dr Dias’ supplementary report. The history taken on that occasion, however, was of only transient symptoms and the left shoulder being completely asymptomatic for several years prior to the work injury in 2017.
The clinical note of 18 January 2016 is not clear or specific with regard to what the acute injury or fall entailed or even which shoulder was involved. Clinical records must always be approached with caution and the Commission is cognisant that they are not prepared in anticipation of legal proceedings. In the context of the previous investigation and radiological findings at the left shoulder, and noting the absence of any contemporaneous corroboration of the applicant’s account of injuring his left shoulder on 13 June 2017, the clinical note of 18 January 2016 is a matter requiring some explanation from the applicant or his doctors.
Dr Dias has not attributed the applicant’s current left shoulder condition or need for surgical treatment to the event on 13 June 2017. Rather, Dr Dias attributed the applicant’s condition to the fall at North Shore Private Hospital in February 2019.
Dr Bateman does give the opinion that the left shoulder condition was the direct result of the initial fall. However, it must be noted that Dr Bateman saw the applicant on a single occasion more than three years after the initial event. Dr Bateman’s opinion is based largely on the history provided to him by the applicant and was given apparently without knowledge of the clinical note describing an acute injury to the shoulder in 2016. Dr Bateman was aware of the ultrasound investigation of the shoulder in 2013 but described it as “completely normal with no signs of any pathology”. That description is difficult to reconcile with the report of the 22 August 2013 ultrasound which described bursal change and changes to the supraspinatus tendon suggestive of small tear.
Weighing all the evidence, I am not satisfied on the balance of probabilities that an injury to the left shoulder was sustained in the event on 13 June 2017.
The applicant claims in the alternative that the left shoulder condition resulted from a fall occurring following surgical treatment for the work injury to his left hindfoot in February 2019.
There are, however, a number of inconsistencies in the evidence with regard to the circumstances of this secondary fall.
In the statement made on 28 September 2019, the applicant stated that the fall occurred on 15 February 2019 when the applicant was getting ready to go home following the surgery. The crutch the applicant was using to walk got caught in the applicant’s bag and he stumbled and hit the wall with his left shoulder falling to the ground.
The event was described in somewhat different terms in the applicant’s statement of 25 November 2019. On that occasion the applicant said that straight after the surgery when he was mobile he placed his crutch on a towel on the ground and it slid out. The applicant fell over and dislocated the left shoulder.
The records of North Shore Private Hospital do not contain any record of a fall on 14 or 15 February 2019. There is reference to the applicant having a shower on 15 February 2019 but with assistance.
There is reference to a fall occurring on 16 February 2019. The progress notes on that date recorded that the applicant had showered himself and then tripped over plastic bag he was removing from his left leg, falling to his right knee. There is no reference in the progress notes to the applicant having struck or dislocated his left shoulder. The nurses’ observation of the applicant was recorded to be satisfactory. There was an investigation by x-ray of the applicant’s left foot which showed no changes and the applicant was cleared to discharge.
The first reference to symptoms at the left shoulder in the medical evidence following this event appears in a clinical note recorded by Dr Cavanagh on 10 April 2019, almost two months after the fall. Dr Cavanagh referred to a fall occurring on 14 February 2019 but did not record details of the history reported to him. The respondent has noted that the applicant did see Dr Cavanagh on another occasion between the surgery and 10 April 2019 but with no reference having been made to left shoulder symptoms.
Shoulder symptoms were again noted by Dr Cavanagh in October 2019 but this time in the context of “pushing himself up” and a slip in a shower. On 17 December 2019, Dr Cavanagh recorded that the left shoulder symptoms were related to a fall, using crutches and noted difficulty swimming.
The applicant has addressed the delay in symptoms at the left shoulder being reported following the fall in February 2019 by stating that the symptoms initially were sore and niggling but the applicant wasn’t using that shoulder as he was not doing any physical activity with his foot. The applicant said the shoulder was initially fine when the applicant was not doing anything.
The applicant’s description of his symptoms does not, therefore suggest, an acute or sudden onset of severe or more intense symptoms in the left shoulder following the fall in February 2019. This is significant given the history of prior symptoms at the left shoulder described above.
The applicant’s evidence and the clinical records of Dr Cavanagh are not, therefore, entirely consistent with the history taken by Dr Dias of ongoing pain, stiffness and discomfort affecting the shoulder on a continual basis since the fall in February 2019.
Whilst I am satisfied that the applicant sustained a fall at hospital for surgery to his injured left hindfoot on 16 February 2019, the inconsistencies in the descriptions of the fall; the absence of contemporaneous evidence of the shoulder being impacted in the fall; the delayed recording of symptoms; and the prior history of left shoulder pathology and investigations, leave me unsatisfied, on the balance of probabilities, that the applicant sustained a consequential condition at the left shoulder in that fall.
The applicant has also attributed left shoulder pain to using crutches. There are references in Dr Cavanagh’s clinical material to the applicant experiencing shoulder symptoms whilst using crutches although it is clear unclear on the evidence before me when and over what period crutches were used following the work injury on 13 June 2017.
The applicant has given evidence in his written statements that he experienced symptoms at the left shoulder when using crutches after the February 2019 surgery.
Dr Bateman has also given an opinion that the reliance on crutches contributed to the applicant’s left shoulder condition together with the event on 13 June 2017 and subsequent slips landing on the shoulder.
I am prepared to accept on the basis of this evidence that the applicant did experience some increase or intensification of symptoms in the left shoulder as a result of the use of crutches following the injury to his left foot and ankle on 13 June 2017 and particularly following the surgery in 2019. Although the applicant appears to have had pre-existing changes at the left shoulder, I am satisfied that the use of crutches rendered the applicant’s experience of those symptoms more intense and that the applicant sustained a consequential condition affecting his left shoulder as a result of the injury on 13 June 2017.
A separate question arises as to whether the injury on 13 June 2017 has materially contributed to the present need for surgery to the left shoulder as proposed by Dr Bateman.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Murphy v Allity Management Services Pty Ltd[10] Roche DP stated:
“...That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[10] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
In these proceedings, I note that there is no medical dispute that the surgery in the form proposed by Dr Bateman is currently reasonably necessary. The causal relationship between the surgery and the work injury is in dispute.
The report from Dr Dias does not assist the applicant. Dr Dias relates the need for surgery and the shoulder condition to the fall at North Shore Private Hospital in February 2019, a proposition which I have rejected above. Dr Dias gave no opinion as to the contribution to the need for surgery made by the applicant’s use of crutches.
Dr Bateman’s report does suggest that the use of crutches contributed to the condition for which surgery is proposed, but only as one of a number of factors including the alleged injury occurring to the shoulder on 13 June 2017 and subsequent fall. Importantly, Dr Bateman has also not addressed the evidence of an acute fall affecting shoulder in 2016 or properly grappled with the pathology reported on the ultrasound in August 2013 in expressing his opinion.
The respondent’s expert, A/Prof Miniter, has expressed the view that the applicant’s left shoulder condition was unrelated to the incident on 13 June 2017. Associate Professor Miniter said it was highly unlikely that the episode at North Shore Private Hospital was causative of the shoulder issues. Associate Professor Miniter referred to a prior ultrasound demonstrating features of bilateral rotator cuff disease and rotator cuff tear on the left-hand side. Although there is some uncertainty as to which ultrasound A/Prof Miniter was referring to, his description is broadly consistent with the changes noted on the August 2013 ultrasound. Associate Professor Miniter gave no opinion with regard to the impact of the use of crutches on the applicant’s current left shoulder condition or the need for surgery.
Whilst I accept that a consequential condition at the left shoulder due to the use of crutches need not be the only or even a substantial contributing factor to the need for surgery, weighing the evidence currently before me, I am not satisfied that the consequential condition has materially contributed to the present need for surgery.
I am not satisfied that the surgery proposed by Dr Bateman is reasonably necessary as a result of the injury on 13 June 2017 for the purposes of s 60 of the 1987 Act.

[2022] NSWPIC 82

28 February 2022