Karan v St Joseph's Hospital

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Karan v St Joseph's Hospital [2024] NSWPIC 400
APPLICANT:	Penney Karan
RESPONDENT:	St Joseph's Hospital
MEMBER:	John Turner
DATE OF DECISION:	25 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 4; injury to left shoulder; consequential left shoulder condition due to accepted right shoulder injury; Kooragang Cement Pty Ltd v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, State of New South Wales v Bishop, and Briginshaw v Briginshaw considered and applied; Held – the applicant sustained a consequential left shoulder condition as a result of the accepted right shoulder injury sustained on 28 March 2018; matter remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a left shoulder consequential condition as a result of the accepted right shoulder injury sustained on 28 March 2018. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 28 March 2018 (deemed) – disease. (b) Body systems / parts: (i) cervical spine; (ii) lumbar spine; (iii) right upper extremity (shoulder), and (iv) left upper extremity (shoulder) (consequential condition). (c) Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. 4. Once the Medical Assessment Certificate has been issued the matter is to be referred back to me for determination of the claim for medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Penney Karan, the applicant, was at all relevant times employed by St Joseph’s Hospital, the respondent, as a ward clerk and medical records officer. The applicant commenced employment with the respondent on a casual basis in or about September 2004 moving into a permanent full-time role on 6 September 2006.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that on 28 March 2018 whilst carrying an old style computer monitor and tower to be placed into a storage space she twisted and felt a significant onset of pain and sustained injury.
The applicant also alleges that she has sustained injury on the deemed dated of
28 March 2018 due to the nature and conditions of her duties which required her to handle heavy medical records, push and pull manual compactors and engage in repetitive computer work.
The applicant also alleges that she suffered an aggravation of her left shoulder and a cervical spine injury due to overcompensation and overuse following her right shoulder injury and surgeries.
The applicant claims the following compensation:
(a) medical, hospital and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) permanent impairment compensation pursuant to s 66 of the 1987 Act for impairment of the cervical spine, lumbar spine, left upper extremity (shoulder) and right upper extremity (shoulder).

ISSUES FOR DETERMINATION

There is no dispute that the applicant sustained injury to her right upper extremity (shoulder), lumbar spine and cervical spine.
The parties agree that the following issues remain in dispute:
(a)    the respondent disputes pursuant to s 4 of the 1987 Act that the applicant suffered injury to her left shoulder arising out of or in the course of employment with the respondent;
(b)    the respondent disputes pursuant to s 9A of the 1987 Act that the applicant’s employment was a substantial contributing factor to the alleged left shoulder injury;
(c)    the respondent disputes pursuant to s 4(b) of the 1987 Act that employment was the main contributing factor to the contraction, aggravation, acceleration and/or deterioration of a disease in respect to the left shoulder, and
(d)    the respondent disputes that the applicant has sustained a consequential condition of the left shoulder.
Once the issue in respect to injury to the left shoulder has been determined the matter is to be referred to a Medical Assessor for impairment assessment before coming back before me for determination of the claim pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
24 June 2024. Mr Phillip Perry, counsel, instructed by Turner Freeman Lawyers, appeared for the applicant, who was present. Mr Bill Loukas, counsel, appeared for the respondent, instructed by Bartier Perry Lawyers. The proceedings were conducted in-person. 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 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) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

The applicant bears the onus of proving injury to her left shoulder.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[1]
[1] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
There is no dispute that the applicant sustained injury to her right shoulder, cervical spine and lumbar spine. The issue in dispute is whether the applicant sustained injury to her left shoulder.
On 28 March 2018, the applicant was tasked with assisting in closing off one of the wards and merging the patients into one ward as they were approaching the Easter holiday period.
The applicant was required to unplug computers and other devices and manually transport heavy filing boxes and computers from one ward to a storage area. She was also required to return all medical records to the filing compactus and put them away which involved manually moving heavy floor to ceiling compactors.
It is the applicant’s evidence that this work was heavy and laborious and was performed without mechanical assistance.
It is the applicant’s evidence that on 28 March 2018 she unplugged an old computer monitor and began to lift same and turned sustaining injury. It is the applicant’s evidence that her injuries included injury to her left shoulder. In her statement dated 20 March 2020 it is the applicant’s evidence at [10] that she felt a “pain strain” in “both shoulders” and in her statement dated 16 April 2024 at [9] that following the incident on 28 March 2018 she started to experience pain in both her shoulders. It is the applicant’s evidence that at the time her right shoulder pain was worse than her left.
It is the applicant’s evidence that she had no symptoms in either shoulder immediately prior to 28 March 2018.
In my view the applicant did not sustain an injury to her left shoulder on 28 March 2018 whilst lifting and carrying an old style computer monitor and computer as alleged.
The contemporaneous evidence does not support that the applicant sustained a left shoulder injury on 28 March 2018.
It is the applicant’s evidence that she immediately informed her manager that she had injured herself and she was referred to Sonic Health who were the respondent’s preferred doctors. The applicant was then referred by Sonic Health for physiotherapy.
A certificate of capacity completed Dr Mahima Abeyarante on 29 March 2018 refers to injury to the lumbar spine and both wrists but makes no mention of either shoulder.
It is the applicant’s evidence that she also subsequently consulted her own general practitioner (GP) Dr Morsingh, at the Wentworthville Medical Centre. However, Dr Morsingh was not available, and she was examined by Dr Farzana who referred her to Dr Vijay Maniam.
On 30 April 2018 the applicant attended on her GP, Dr Raymond Morsingh. The clinical record of the attendance records a history of neck and back pain. The clinical record contains no reference to either shoulder.
Certificates of capacity dated 30 April 2018, 2 May 2018 and 9 May 2018 refer to injury to the lumbar spine and both wrists but make no mention of either shoulder.
On 14 May 2018 Dr Vijay Maniam, orthopaedic surgeon, reported to Dr Farzana that the applicant had sustained injury to her cervical spine and lumbar spine on 28 March 2018.
A Workers Compensation first attendance form completed on 23 May 2018 records that the applicant had sustained injury to her back, neck and both wrists on 28 March 2018. A certificate of capacity completed on 23 May 2018 records that the applicant had sustained injury to her lumbar spine and both wrists but also makes no mention of either shoulder.
On 12 June 2018 Mr Moses Chu, physiotherapist at Parramatta Physiotherapy Sports & Rehab Centre, reported to Dr Maniam that the applicant had been referred to him suffering from chronic cervical spine sprain and lumbar spine L3/4, L4/5 and L5/S1 disc protrusions.
Mr Chu recorded that the applicant claimed that she had hurt her neck, low back and wrists during the course of her employment on 28 March 2018. The report does not refer to either shoulder.
Certificates of capacity completed on 22 June 2018 and 23 July 2018 refer to injury to the lumbar spine and both wrists but make no mention of either shoulder.
The first reference to shoulder complaints which I have managed to locate in the evidence before me is in the clinical notes of Dr Maniam in respect to consultations on 2 August 2018 and 6 September 2018. Whilst those entries refer to the shoulders, they contain no information as to injury or symptom onset.
On 20 September 2018 Dr Morsingh requested an ultrasound of the right shoulder.
On 20 November 2018 Dr Maniam reported that in respect to the incident on 28 March 2018 the applicant’s complaints were initially in respect to an aggravation of pre-existing neck and lumbar spine pains, paraesthesia in the fingers, and “with time bilateral shoulder pains”.
Thus, the contemporaneous clinical records contain no reference to the left shoulder at all until 2 August 2018 over four months after the subject incident on 28 March 2018 despite multiple attendances on doctors and allied health professionals. When a history is recorded it is not of the applicant having sustained injury to her left shoulder on 28 March 2018 but that she developed bilateral shoulder pain “with time”.
Dr Sebastian Calvache-Rubio in his report of 30 January 2019 records that the applicant reported a history that in the incident on 28 March 2018 she suffered injury to her neck, “shoulders”, wrists and back. Dr Calvache-Rubio however does not take that history until
30 January 2019, some 10 months after the subject incident on 28 March 2018. Furthermore, on 30 January 2019 the applicant also attended on Mr Ryan Heuston, physiotherapist with the Workers Doctors, who recorded a history that the applicant’s shoulder pain commenced whilst doing overhead file work.
In my view the histories taken by the doctors who have provided forensic medical reports also do not support that the applicant sustained injury to her left shoulder on 28 March 2018 whilst lifting and carrying an old style computer monitor and computer as alleged.
Dr Richard Powell, orthopaedic surgeon, provided a forensic report to the respondent dated 27 February 2019 in which the doctor took a history that on 28 March 2018 the applicant lifted up a hard drive with a computer monitor sitting on top of it, twisted to one side and then walked a short distance to a storeroom. In the process of performing this manoeuvre she was aware of the development of pain involving her neck, lower back and wrists.
Dr Powell does also record that the applicant reported that she had been aware of bilateral shoulder symptoms “following the initial incident” however these symptoms settled with treatment. It is unclear as to whether “following the initial incident” is meant to mean immediately following or some unspecified time after the initial incident. In any event the applicant reported to Dr Powell that the symptoms settled with treatment. As previously noted there is no mention of the shoulders in the clinical records until 2 August 2018 and therefore any treatment would not appear to have occurred until then which would be consistent with any left shoulder symptoms developing sometime after the incident on 28 March 2018.
Dr Robert Breit, orthopaedic surgeon, provided a forensic report to the respondent dated
27 November 2019 in which the doctor records that on 28 March 2018 the applicant felt a strain in her neck, low back and hands. Dr Breit does not take a history of the applicant having sustained an injury to her left shoulder on 28 March 2018.
Dr James Bodel, orthopaedic surgeon, provided two forensic reports to the applicant dated 15 May 2020. Dr Bodel noted the statement from the applicant dated 20 March 2020 which confirmed the mechanism of injury that occurred on 28 March 2018 and that the initial injury was primarily to “my lower back, neck, both shoulders and pain radiating through both my wrists”. Dr Bodel observed that when taking the history from the applicant the applicant reported that it was her recollection that in fact the shoulders were not sore at that time, but they came on later in the year, “particularly the right side” whilst she was still recovering from the other injuries.
Dr Bodel in his subsequent reports of 17 January 2022 and 24 August 2023 refers to the applicant’s injuries on 28 March 2018 as including injuries to both shoulders however
Dr Bodel did not revisit the history which he had carefully taken from the applicant for his report of 15 May 2020. I prefer the history recorded by Dr Bodel in his report of 15 May 2020 as it is earlier in time and therefore closer to the event at which time the applicant presumably had a clearer memory of events and also because for the purposes of the report of 15 May 2020 the applicant specifically discussed and advised as to her recollection of the events of 28 March 2018 advising that her recollection was not consistent with her statement which had been made only two months prior.
A/Prof Brett Courtenay, orthopaedic surgeon, provided to the respondent a forensic report dated 24 February 2023 in which the doctor records that the applicant reported that on
28 March 2018 she had symptoms in her low back, neck, right shoulder and both wrists. A/Prof Courtenay did not take a history of injury to the left shoulder.
A/Prof Courtenay in his report of 6 December 2023 records that the applicant reported that her left shoulder started to become a problem after the second operation on her right shoulder. The applicant reported to A/Prof Courtenay that she did not have any particular injury.
Dr Philip Sharp, consultant surgeon, provided an injury management consultants report to the respondent dated 4 September 2020 in which Dr Sharp records that the applicant experienced pain her neck that went to both trapezius areas and down to both wrists in the lifting incident on 28 March 2018. Dr Sharp does not take a history of injury to the left shoulder at that time but rather records that later in 2018, she was referred to Dr Maniam to whom she complained of pain in both shoulders with restriction of movement in both shoulders.
I am of the view that the applicant has sustained a consequential condition of the left shoulder as a result of the accepted injury to the right shoulder for the following reasons.
To establish that the left shoulder is a consequential condition the applicant has to prove on the balance of probabilities that the left shoulder symptoms and restrictions have resulted from the accepted injury sustained to the right shoulder. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“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…”
The question whether a consequential condition has been sustained is a question of fact: State of New South Wales v Bishop [2014] NSWCA 354.
The applicant bears the onus of establishing on the balance of probabilities that she has developed a consequential condition as a result of the accepted injury to her right shoulder. 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 Briginshaw v Briginshaw [1938] HCA 34.
It is the applicant’s evidence that her duties as a clerical assistant were primarily administrative in nature. That she had two distinct roles, one in administration in medical records and the second as a ward clerk which at times was more physical demanding although also largely administrative.
It is the applicant’s evidence that her administrative duties required her to work at a computer for extended periods. She would perform a lot of typing and take many phone calls. Her role also required her to pack and unpack a lot of orders, frequently push and pull manual compactors and hold the physical medical records. She would also frequently attend to filing paperwork which was repetitive.
On 18 June 2019, the applicant underwent right shoulder subacromial decompression and labral repair surgery at the hands of Dr Maniam. It is the applicant’s evidence that her pain continued following the surgery.
It is the applicant’s evidence that her last day of work with the respondent was on or about
14 June 2019 just before the right shoulder surgery and that she has not worked since.
On 3 December 2021 a further surgical procedure was performed on the right shoulder by
Dr Gavin Soo.
It is the applicant’s evidence that following the right shoulder surgeries on 18 June 2019 and 3 December 2021, she had to favour her left arm to carry out day-to-day activities including brushing her teeth, washing her face, showering, dressing, brushing her hair, writing, wiping dishes, carrying and holding things such as her phone and cooking pans. It is the applicant’s evidence that she became “almost left-handed”.
It is the applicant’s evidence that she did receive some assistance from her family at times with her granddaughter and stepdaughter providing some assistance with domestic duties and her son taking care of her lawns and bringing shopping to her. However, it is the applicant’s evidence that she vacuumed once a week using her left hand which would get very sore after that and that she still needs to pull sheets, cook with her left hand and do light dishes.
It is the applicant’s evidence that she is right hand dominant and that she had no symptoms in either shoulder immediately prior to 28 March 2018.

As previously noted the first recorded comments in respect to the left shoulder appear in the clinical notes of Dr Maniam on 2 August 2018. On 30 January 2019 Dr Calvache-Rubio recorded the applicant’s symptoms as including right greater than left bilateral shoulder pain, restriction of movement, bilateral arm weakness. At this point the applicant has yet to cease duties with the respondent.
Dr Powell in his report dated 27 February 2019 observed that the applicant is right hand dominant and recorded that the applicant reported that following 28 March 2018 her bilateral shoulder symptoms flared as a result of undertaking parts of her normal duties which included repetitive lifting of heavy document folders and boxes during retrieval of medical records, as well as having to move the heavy sliding compactors.
Whilst the doctor recorded that the applicant reported that her bilateral shoulder symptoms flared as a result of undertaking her normal duties the doctor when recording the applicant’s current symptoms recorded that the applicant reported ongoing symptoms involving the cervical spine, right shoulder and lumbar spine. The doctor did not record that there were any current left shoulder symptoms at this time and Dr Powell did not examine the left shoulder.
Dr Powell when asked to provide his opinion as to causation recorded that the applicant indicated that the nature and conditions of her employment which involved repetitive lifting of documents, retrieval of records, and manipulation of heavy compacting storage machines had aggravated her right shoulder condition.[2] Dr Powell did not record that the applicant had reported a similar left shoulder aggravation.
[2] Reply p 36.
Dr Powell recorded that the applicant reported intermittent activity related pain which affected the right shoulder in a generalised fashion. She localised it to the superior aspect, though indicated that there was also discomfort anteriorly and posteriorly. The applicant was also aware of stiffness and restriction in range of motion and was unable to sleep on her right side.
Dr Powell noted that at the time of examination the applicant reported that she remained at work on light duties working her full pre-injury hours, six hours per day, five days per week, with a lifting restriction of 3kg and instructions to avoid overhead activities and repetitive pushing and pulling.
Dr Powell noted that the applicant continued to perform domestic tasks though with difficulty, receiving some assistance with cleaning from her granddaughter.
On examination of the right shoulder Dr Powell observed reduced spontaneous movements of the right upper limb, tenderness to palpation, power was limited by pain and impingement tests were positive.
Dr Powell diagnosed a soft tissue injury of the right shoulder with aggravation of some underlying degenerative rotator cuff pathology and the development of subacromial bursitis and features of an impingement syndrome. The doctor observed that his examination of the applicant was characterised by mild tenderness, moderate irritability and a generalised restriction in range of motion with positive impingement signs.
Dr Powell observed that there was no suggestion of overreaction or exaggeration.
Therefore, by the time that Dr Powell examined and reported on the applicant to the respondent in February 2019 the applicant had developed significant symptoms in her right shoulder which included pain including activity related pain, power restricted by pain and restriction in range of motion. Whilst the applicant was continuing to perform domestic tasks she was doing so with difficulty and receiving some assistance with cleaning from her granddaughter. At this stage the applicant was still working six hours per day, five days per week with a lifting restriction of 3kg and instructions to avoid overhead activities and repetitive pushing and pulling.
The applicant’s symptoms were significant enough to warrant right shoulder surgery on
18 June 2019.
That the applicant was using her left arm to compensate for her injured right shoulder is support by Dr Breit who recorded in his report of 27 November 2019 in respect to the applicant’s complaints at the time of examination that there was “said to be” some left side biceps discomfort which had been increasing due to restricted right shoulder movement. In respect to the right shoulder the applicant reported pain, sleep disturbance and painful restriction of movement.
On examination Dr Breit observed the right shoulder to be generally tender and movements grossly restricted.
Whilst Dr Breit was of the opinion that the applicant’s presentation was of gross maximisation and invalidism with respect to the right shoulder, it is the applicant’s evidence that her right shoulder symptoms continued following the surgery on 18 June 2019. That the applicant had continuing significant right shoulder symptoms following the surgery is supported by the contemporaneous medical evidence as well as by the fact that the applicant would ultimately have a second surgical procedure performed on her right shoulder on 3 December 2021.
On 19 December 2019 Dr Gavin Soo, orthopaedic surgeon, reported to Dr Lim that the applicant had ongoing right shoulder pain following the surgery on 18 June 2019.
Dr Bodel examined and reported on the applicant on 15 May 2020. Dr Bodel records that towards the end of 2018 the applicant’s right shoulder became increasingly painful. This came on gradually over a period of time and she was then given a Certificate with a 2kg lifting limit. Dr Maniam then offered her surgery on the right shoulder which was done on
18 June 2019 which had not helped.
Dr Bodel recorded the applicant’s complaints at the time of the examination as pain and stiffness in the region of the right shoulder. The left shoulder was not mentioned in this context.
On examination Dr Bodel observed no restriction of left shoulder movement but there was a restricted range of right shoulder movement and she had almost no active movement of the glenohumeral joint. When she attempted abduction she hitched her right shoulder and tilted her body to the left.
On 15 February 2021 Dr Soo reported to Dr Lim that the applicant reported that she had continuing constant right shoulder pain. The applicant described the pain as a burning pain which radiated down the biceps. Dr Soo observed that the applicant had marked difficulty getting her right arm up above shoulder height.
Dr Eric Lim (GP) in a report dated 16 April 2021 observed that the applicant could not work, “let alone use her arms in any efficient way without aggravation. She can’t even manage her own washing, and needs her granddaughter to assist”.[3]
[3] ARD p 103.
Dr Breit re-examined the applicant on 28 June 2021 providing a report to the respondent dated 6 July 2021 in which the doctor did not record any complaints by the applicant in respect to her left shoulder and did not examine the left shoulder.
Dr Bodel appears to have re-examined the applicant on 23 August 2021 however did not provide a report until 17 January 2022. Dr Bodel recorded that the applicant’s complaints included bilateral shoulder girdle pain, right worse than the left with a restricted range of shoulder movement.
Dr Bodel noted that his findings on physical examination were very similar to those recorded by Dr Soo in his report of 19 December 2019 in which Dr Soo recorded that the applicant confirmed that postoperatively “the pain is the same as prior to the operation and it is located anteriorly and running down into the biceps. She still has difficulty with active elevation above shoulder height. She has difficulty sleeping at night-time”.
Dr Bodel diagnosed rotator cuff pathology in the right shoulder and to a lesser extent the left shoulder.
At this point the applicant has been suffering from significant right shoulder symptoms from at least February 2019. Symptoms which had affected her ability to perform her domestic duties as well as work duties. The right shoulder symptoms continued following the surgery in June 2018. The applicant had been using her left arm to compensate and by
November 2019 had developed left sided biceps discomfort.
On 23 August 2021 Dr Bodel has recorded complaints of left shoulder pain as well as a slight restriction of left shoulder movement. However, the fact that there is a complaint of left shoulder symptoms does not automatically mean that any left shoulder condition has resulted from the applicant compensating for the accepted right shoulder condition.
Dr Breit re-examined the applicant on 17 February 2022 providing a report dated
25 February 2022. Dr Breit noted that the applicant had undergone further right shoulder surgery on 3 December 2021.
The doctor observed that there was persistent pain and diminished movement in the right shoulder and that the applicant tended to keep her right arm in a protected posture. In respect to the left shoulder Dr Breit noted that the applicant complained of marked shoulder pain, abandoning further assessment as it was likely to cause pain and be of little benefit.

A/Prof Courtenay reported on the applicant on 24 February 2023 having examined the applicant on 17 February 2023. The doctor noted that the applicant had a “very significant” loss of movement of her right shoulder which was much more than noted in other reports. The doctor suspected a significant amount of exaggeration.
The applicant reported that she had a lot of problems with home care and relies on her neighbours to do the garden and lawn. She can do a little bit of work in the garden with some pruning using her left hand.
Dr Bodel re-examined the applicant on 28 April 2023 providing a report in respect to the examination dated 24 August 2023. Dr Bodel records that there was a mild improvement in pain and an increase in range of motion following the second right shoulder surgery on
3 December 2021
Dr Bodel records that the applicant was continuing to suffer from bilateral shoulder pain right worse than left.
Dr Bodel recorded that like A/Prof Courtenay in his report of 24 February 2023 he had observed on examination a very restricted right shoulder range of movement. Dr Bodel observed that whilst A/Prof Courtenay assessed a normal range of movement of the left shoulder he had found a slight restriction on the left side. Dr Bodel was satisfied after repeat testing and encouragement that he had recorded the appropriate level of restricted movement of the right shoulder.
In the opinion of Dr Bodel, the applicant has sustained a consequential injury to the left shoulder due to favouring the more injured right shoulder.
A/Prof Courtenay re-examined the applicant on 24 November 2023 providing a report dated 6 December 2023. A/Prof Courtenay observed that from the history and from his examination there appeared to have been some deterioration in the left arm since his previous examination.
A/Prof Courtenay specifically enquired of the applicant as to what her normal daily activities were now that she was on her own at home. The history which A/Prof Courtenay took was that the applicant did minimal cooking and minimal housework. She did not necessarily shower every day, maybe every couple of days. She cooked some extra meals at times so that she had enough for an extra few days. She did only the most basic housework. She only changes the sheets when her niece comes to visit, and she normally just has a sheet and pulls up a blanket. She had stopped driving at the time of examination. She was not currently doing anything in the garden. She spent most of her time resting at home or watching television.
A/Prof Courtenay observed that there was nothing of any significant physical activity that he was able to determine that the applicant did on a regular basis and the net result of the work that she is currently doing is much less than what she was doing when she was employed working as a ward clerk and in the hospital and that situation has essentially been unchanged since 2018.
On examination A/Prof Courtenay observed that the range of movement of the right shoulder was essentially the same as at the time of his previous examination however there was a significant restriction in the range of motion of the left shoulder which at the time of the previous examination had a full range of movement.
With regard to favouring of the left shoulder due to being unable to use the right shoulder A/Prof Courtenay did not agree that was the situation. In support of his opinion the doctor observed that in his opinion the overall amount of activity which the applicant was doing per day was minimal compared to what she had done in the past and therefore the net use of the left shoulder is much less than previously. In the opinion of A/Prof Courtenay any loss of movement of the left shoulder is due to age related changes.
A/Prof Courtenay does not believe that the right shoulder condition materially contributed to the left shoulder condition. This opinion is based on the fact that when the doctor previously examined the applicant, she had a full range of movement of the left shoulder so anything that has happened since then is not really related to work. She is doing very little activities at the moment and in the doctor’s opinion the left shoulder condition is not related to the right shoulder condition.
Dr Bodel in a supplementary report dated 19 January 2024 disagreed with A/Prof Courtenay’s opinion that the left shoulder condition is not causally related to the original injury to the right shoulder. In the opinion of Dr Bodel, the slight restriction of movement of the left shoulder which he had observed is due to the aggravation, acceleration, exacerbation and deterioration of an underlying disease process in the form of degenerative rotator cuff pathology, which is inevitably present in a person of the applicant’s age, in the form of degenerative rotator cuff pathology.
In the opinion of Dr Bodel, the injury has occurred because the applicant has had to favour her left side whilst trying to recover with a very restricted right shoulder, and that has caused the aggravation, acceleration, exacerbation and deterioration to that underlying disease process.
I prefer the opinion of Dr Bodel that the applicant has sustained a consequential injury to her left shoulder as a result of the accepted right shoulder injury.
All the applicant has to establish is that the symptoms and restrictions in her left shoulder have resulted from her right shoulder injury. The applicant does not have to establish an injury within the meaning of s 4 of the 1987 Act.
It is Dr Bodel’s opinion that the applicant has suffered an aggravation of underlying degenerative rotator cuff pathology. A/Prof Courtenay agrees that the applicant has degenerative changes in her left shoulder. The applicant has suffered from significant right shoulder symptoms since at least February 2019 and the evidence supports that the applicant compensated for her accepted right shoulder injury with her left arm.
Interestingly the applicant’s left shoulder symptoms appear to have dramatically escalated following the right shoulder surgery on 3 December 2021 with Dr Breit observing on examination on 17 February 2022 that the applicant had persistent right shoulder pain with diminished movement and was complaining of marked left shoulder pain with the doctor abandoning further assessment of the left shoulder as it was likely to cause pain and be of little benefit.
It is almost two years after Dr Breit’s examination of 17 February 2022 that A/Prof Courtenay re-examined the applicant on 24 November 2023 taking a history of the applicant’s then activities and concluding that the applicant had not suffered a consequential left shoulder condition. At that point the applicant’s left shoulder had been symptomatic for some time. A/Prof Courtenay did not take any history as to how the applicant’s activities had changed over time and what had influenced those changes. It needs to be remembered that the idea that the applicant had suffered a consequential condition of his left arm, albeit biceps, due to favouring of the injured right shoulder was first raised in Dr Breit’s report of
27 November 2019. It is the applicant’s evidence that she relied upon her left arm to such an extent that she became virtually left handed.
For the above reasons I find that the applicant has sustained a consequential condition of the left shoulder as a result of the accepted right shoulder injury.
I will remit the matter to the President for referral to a Medical Assessor for assessment of impairment of the cervical spine, lumbar spine, right upper extremity (shoulder) and left upper extremity (shoulder).

[2024] NSWPIC 400

25 July 2024