Khurshid v Cordina Chicken Farms Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Khurshid v Cordina Chicken Farms Pty Ltd [2022] NSWPIC 467
APPLICANT:	Shahzad Imran Khurshid
RESPONDENT:	Cordina Chicken Farms Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	23 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation and incurred section 60 expenses of the Workers Compensation Act 1987 (1987 Act); accepted right foot and ankle injury; whether consequential right shoulder condition due to use of crutches and excessive weightbearing through right upper limb to take weight off injured lower limb; inconsistencies between applicant’s evidence and medical evidence as to period of crutch use and onset of symptoms; Held — histories provided to applicant’s physiotherapist and medicolegal expert were “sufficiently like” the facts established; applicant sustained a consequential right shoulder condition; matter remitted to President for referral to a Medical Assessor; general order for section 60 expenses of the 1987 Act.
determinations made:	The Commission determines: 1. The applicant sustained a consequential right shoulder condition as a result of the injury on 24 October 2019. The Commission orders: 2. The matter be remitted to the President for referral to a Medical Assessor for assessment as follows: a) Date of injury: 24 October 2019 b) Body parts: Right Lower Extremity (ankle, foot) and Right Upper Extremity (shoulder) – consequential condition c) Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor are to include all materials admitted in the proceedings. 4. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Shahzad Imran Khurshid (the applicant) was employed by Cordina Chicken Farms Pty Ltd (the respondent) as a process worker. On 24 October 2019, the applicant sustained an injury to his right ankle when he slipped over and caught his foot underneath a pallet jack. Liability for that injury is not presently in dispute.
On 3 February 2021, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in reliance on an assessment of 11% whole person impairment (WPI) of the right lower extremity made by Dr Min Fee Lai on 20 October 2020.
The applicant, through his solicitors, amended the claim for lump sum compensation on 18 October 2021, in reliance on an assessment of 21% WPI of the right lower extremity and right upper extremity made by Dr Lai on 2 October 2021.
Liability for a consequential right shoulder condition had been disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 May 2021 after a diagnosis of “right shoulder pain” was added to the applicant’s SIRA certificates of capacity.
Liability to pay lump sum compensation was disputed in a further notice pursuant to s 78 of the 1998 Act on 10 February 2022 in reliance on an assessment prepared by Dr John Bosanquet on 12 January 2022. Dr Bosanquet found that any impairment of the applicant’s right shoulder was due to an underlying constitutional condition and not the injury on 24 October 2019. Dr Bosanquet found that the injury on that date had resulted in 5% WPI of the right lower extremity.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 16 May 2022. The applicant sought lump sum compensation pursuant to s 66 of the 1987 Act in reliance on Dr Lai’s updated assessment and compensation pursuant to s 60 of the 1987 Act for incurred treatment costs.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 1 August 2022. The proceedings were conducted on the Microsoft Teams platform. The applicant was represented by Mr Luke Morgan of counsel, instructed by Mr Peter Naddaf. The applicant was assisted by an interpreter in the Urdu and English languages. The respondent was represented by Mr Paul Barnes of counsel, instructed by Ms Belinda Brown.
During the conciliation conference, the respondent elected to rely on the reports of Dr Bosanquet over the reports of Dr James Powell attached to the Reply for the purposes of cl 44 of the Workers Compensation Regulation 2016. The reports of Dr Powell were admitted into evidence for the purposes of the history recorded in them rather than the medico-legal opinions expressed.
In relation to the claim for incurred s 60 expenses, the applicant advised that a general order was sought.
At the commencement of the arbitration hearing, submissions were heard and recorded in relation to an Application to Admit Late Documents lodged by the applicant on 26 July 2022. In particular, the respondent raised an objection to the admission of a supplementary statement from the applicant and report from his physiotherapist, Peraveenan Jeyarasa.
A determination was made admitting the documents in the proceedings pursuant to r 67(4) of the Personal Injury Commission Rules 2021, although the respondent’s submissions as to the evidentiary weight or value of those documents were noted.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the whether the applicant has sustained a consequential right shoulder condition as a result of the injury on 24 October 2019;
(b) the degree of permanent impairment resulting from injury, and
(c) whether the s 60 expenses claimed are reasonably necessary as a result of the injury on 24 October 2019.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents[1], and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 26 July 2022.
[1] The reports of Dr James Powell dated 31 March 2021 and 13 May 2021 were admitted only for the purpose of the history recorded therein pursuant to cl 44 of the Workers Compensation Regulation 2016.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 10 May 2022 and 5 July 2022.
In his first statement, the applicant stated that he did not suffer from any significant medical conditions or injuries impacting on his ability to work prior to the injury on 24 October 2019.
The applicant migrated to Australia on 25 December 2018 from Pakistan. The applicant commenced employment with the respondent on or about 2 May 2019.
The applicant described the event on 24 October 2019. The applicant slipped on a piece of chicken and his right foot got caught underneath a pallet jack, causing the applicant to trip over and twist his right ankle.
The applicant consulted his general practitioner and was referred for an X-ray, which identified a fracture at the right foot. The applicant’s general practitioner reviewed the X-ray and recommended that the applicant wear a controlled ankle motion (CAM) boot.
The applicant was referred to physiotherapist, Keith Hua, and continued to consult with Mr Hua over the next two years. Despite treatment, the applicant continued to suffer from pain and stiffness.
The applicant underwent further X-rays and CT scans. The applicant continued to rely on a CAM boot daily. The applicant stated:
“I relied on crutches to walk over the next eight months and began developing an aching pain in my right shoulder. Whenever I would use my crutches, my right shoulder would become stiff and frozen when it was resting on top of my crutches. When I was reaching up onto the washing line, or raised my right arm above right shoulder height, my right shoulder would become sore and aggravated.
However, I believed that this pain and stiffness was temporary and would subside when I stopped relying on my crutches. As such, initially, I did not think to bring this to the attention of my medical professionals.”
In March 2020, the applicant was referred to foot and ankle surgeon, Dr Mayuran Suthersan. Dr Suthersan referred the applicant for MRI, which showed minimal healing of the bone fracture. Dr Suthersan considered it unlikely that the fracture would heal with conservative treatment and recommended surgery in the form of an open reduction fixation of the fracture. The applicant did not proceed with surgery due to the COVID-19 pandemic.
The applicant consulted a new general practitioner, Dr Ravinder Singh, on 10 August 2020. The applicant was referred to orthopaedic surgeon, Dr Scott Newman for a second opinion. Dr Newman considered the applicant’s symptoms related to a neuropathic pain syndrome and referred the applicant to a pain management specialist.
The applicant consulted with pain management specialist, Dr Alan Nazha, on or about 21 September 2020.
The applicant described worsening symptoms at his right shoulder in or around January 2021:
“In or around January 2021, the pain in my right shoulder worsened significantly. I continued to suffer from discomfort in my right shoulder after I was required to use crutches which rested under both my shoulders for approximately eight months. The right crutch predominately caused pain and discomfort in my right shoulder, as I relied heavily on the right crutch for stability due to my right foot injury.
However, even after I stopped using the crutches, I continued to suffer from pain and stiffness in my right shoulder. Whenever I was walking up or down stairs, I was forced to pull or push my body weight up and down, solely using my right arm on the step rails, which aggravated my right shoulder injury. Whenever I was getting in and out of the passenger seat of the car, I would pull and hold myself up using my right arm, which also increased the pain and restrictions in my right shoulder. As a result, I began suffering from a constant burning pain and stiffness in my right shoulder and I decided to consult with Dr Singh.
On 10 February 2021, I consulted with Dr Singh. I explained that through relying on crutches and over-relying on my right shoulder to support my body weight, I was suffering from severe pain and restrictions in my right shoulder. Dr Singh examined my right shoulder, and agreed that my right shoulder had initially become stiff and frozen as I had been using crutches. Dr Singh explained that I should continue to self-manage my right shoulder injury, and did not need to seek medical treatment. Dr Singh explained that my right shoulder pain would eventually subside, and I should continue focussing on my right foot and right ankle injuries.
However, over the next several months, the discomfort in my right shoulder continued to worsen. I struggled to reach up above shoulder height when I was reaching high into cupboards or changing a lightbulb, and any sharp movement with my right arm would send sharp pain down my right shoulder into my right ribs. Holding heavy objects such as grocery bags in my right arm would send sharp waves of pain up my right arm into my right shoulder. However, I continued to rely on the advice of my GP and self-manage my right shoulder symptoms with pain medication and rest.”
The applicant continued working light administrative duties and self managing his right shoulder with pain medication and rest. Holding boxes of paper or reaching for cups in the cupboard would aggravate the shoulder symptoms.
The applicant consulted his general practitioner, who recommended that the applicant recommence with physiotherapy to manage his right shoulder, right foot and ankle injuries. The applicant was referred to Mr Peraveenan Jeyarasa but at this stage treatment for the right shoulder had been declined by the insurer.
The applicant said he continued to experience constant aching pain in the right shoulder. The applicant struggled to lift the arm above shoulder height or move the arm sharply due to stiffness and discomfort. Work, using a pen, keyboard or mouse, with the right arm aggravated the discomfort in the shoulder.
In his supplementary statement, the applicant said he developed a gradual increase in pain at the right shoulder in or around May 2020:
“I relied heavily on crutches to reduce the weight and pressure off my right ankle. I also used my right arm to balance myself against the walls and bench tops to alleviate any weight bearing on my right ankle. I would also hoist myself up and down the stairs, relying heavily on the railing to propel and support my bodyweight. Overtime, I noticed my right shoulder becoming increasingly stiff and sore after using the crutches. I didn’t complain of my pain symptoms as I assumed they would subside once I ceased using crutches. I was also focused on my right ankle and foot pain and wanted to focus my attention on healing my right ankle injury.
Throughout late 2020, I complained of my right shoulder pain to my treating physiotherapist. However, I have been informed by my legal representatives that this was not reported. As English is my second language, I believe the language barrier hindered my ability to explain the cause of my right shoulder pain. Had I properly understood my rights and entitlements regarding consequential conditions under the workers compensation process, I would have better explained the development of my right shoulder pain. However, I was unaware consequential conditions were covered under the scheme.”
The applicant said he reported the right shoulder symptoms to Dr Singh on 10 February 2021. Dr Singh did not recommend any radiological scans or refer the applicant for specialist consultation. This affirmed the applicant’s belief that the condition was not covered under the workers compensation scheme.
In June 2021 the applicant moved to a new apartment on the second floor of the building. The applicant had to walk up and down four flights of stairs to reach the apartment. The applicant would lean on the railing to protect his right ankle, placing a considerable strain on the right shoulder.
The applicant said he continued to experience sharp shooting pain in the right ankle and was unable to walk without a CAM boot. The applicant stated:
“My right shoulder pain is deteriorating as I am required to constantly lean on bench tops and furniture to shuffle around my apartment. As discussed above, walking up and down stairs is unbearable. I would be unable to support myself on a train or a bus due to my right shoulder pain and instability.”

Treating evidence

A clinical record prepared by Dr Sara Al Samail at MyHealth Blacktown, dated 24 October 2019, referred to a workplace injury in which the applicant sustained a direct trauma to the right foot after a collision with a pallet jack. The applicant experienced significant pain and swelling and an inability to weight bear. The applicant was sent for urgent X-ray imaging, which revealed a small avulsion fracture of the dorsal aspect of the navicular bone. The applicant was sent for physiotherapy and placed in a CAM boot.
The notes of a physiotherapist appointment on 25 October 2019 recorded that the applicant was using crutches and a boot and non-weight bearing on his affected ankle.
On 30 October 2019, the applicant was noted to be weight bearing as tolerated using bilateral crutches.
On 1 November 2019, the physiotherapist recorded that the applicant had been taught how to mobilise with no crutches, including stairs. The applicant had been advised to mobilise with one crutch and outdoors only.
A clinical record made by Dr Al Samail on 4 November 2019 noted that the applicant was weight bearing as tolerated with CAM boot and crutches.
On 4 November 2019, physiotherapy notes recorded that the applicant was shown how to use no crutches.
On 18 November 2019, Dr Al Samail recorded that the applicant was currently in a CAM boot and no longer using crutches.
Dr Al Samail recorded on 2 December 2019 that the applicant was in the CAM boot and coping well with his current work duties. The applicant was experiencing only intermittent mild pain with no other complaints
On 2 December 2019 and 3 January 2020, the physiotherapist noted that the applicant continued to wear a boot.
On 23 December 2019, Dr Al Samail noted a long consultation with the applicant in which he reported feeling very down and hurt. The applicant felt unfairly treated at work.
On 8 January 2020, the physiotherapist noted that the applicant had been walking at home without a boot with no problems.
On 3 February 2020, Dr Al Samail noted that a recent progress X-ray demonstrated suboptimal healing despite 12 weeks of immobilisation with a CAM boot. The applicant reported pain on weight bearing. Psychological issues arising from the injury were discussed.
On 16 March 2020, Dr Al Samail referred the applicant to Dr Mayuran Suthersan for opinion and management in the context of a non-healing avulsion fracture.
On 17 March 2020, there was a discussion between the applicant and Dr Al Samail regarding the importance of CAM boot compliance and minimising weight-bearing.
A report prepared by physiotherapist, Mr Keith Hua, dated 27 March 2020, referred to the work injury and noted that the applicant had been managed with a CAM boot and crutches and was ambulating with an antalgic gait.
Orthopaedic surgeon, Dr Mayuran Suthersan wrote to Dr Al Samail on 2 April 2020 noting that following the injury, the applicant had been placed into modified footwear but continued to work. The applicant presented wearing a CAM boot and was unable to walk without the boot. Dr Suthersan referred the applicant for an MRI scan to confirm the nature of the fracture healing.
Dr Suthersan reported on 30 April 2020 that the MRI scan showed evidence of the fracture. After six months, the fracture was unlikely to heal through non-operative means.
On 25 June 2020, Mr Hua prepared a discharge report which again noted that the applicant had been managed with a CAM boot and crutches and was ambulating with an antalgic gait. It was noted that the applicant was to be referred to a different physiotherapy clinic for a second opinion
On 13 July 2020, general practitioner, Dr Dimuthu Samaranayake, recorded that the applicant was complaining of pain in his left hip and leg as a result of overcompensation of body weight on the left foot and a significant height disparity between the right ankle boot and the left foot. The applicant also noted some aching in his left shoulder radiating down the upper arm. The applicant was noted to be only partially weight-bearing on the right foot.
On 30 July 2020, Dr Suthersan reported that it had been many months since he last saw the applicant as he had been missing his appointments. The applicant had minimal tenderness and excellent hindfoot range of motion. Dr Suthersan recommended extensive physiotherapy and weaning out of the CAM boot into normal shoes.
The applicant consulted a new general practitioner, Dr Ravinder Singh, on 8 August 2020. The applicant noted communication difficulties with his previous general practitioner. The applicant was noted to be wearing a CAM boot
On 10 August 2020, Dr Singh referred the applicant to Dr Scott Newman for opinion and management of his right ankle pain. The report noted that the applicant was starting to get pain in the left leg and left hip due to the CAM boot.

Dr Newman prepared a report for Dr Singh on 27 August 2020. Dr Newman noted the history of treatment including a period of non-weight-bearing and use of a CAM boot which the applicant initially found uncomfortable. Dr Newman considered that the applicant’s ongoing symptoms represented a neuropathic pain syndrome and did not have a structural cause. The applicant was best assessed by a pain management specialist. Dr Newman referred the applicant to Dr Alan Nazha for pain management.
On 21 September 2020, Dr Alan Nazha wrote to Dr Newman, noting that the applicant initially seemed to show improvement with conservative management but began to wear a CAM boot. With time, the applicant’s pain became more diffuse. The applicant continued to use a CAM boot as he found it more comfortable. Dr Nazha noted that the applicant did not have significant vasomotor or sensory changes to designate possible CRPS. The applicant did describe depressive symptoms and Dr Nazha was concerned about his mental health. Dr Nazha recommended pharmacotherapy and topical therapy as well as referral to an occupational physician and psychiatrist.
The applicant continued to see Dr Singh approximately every fortnight reporting ongoing symptoms in the right ankle. On 30 October 2020 the applicant was advised to avoid walking on uneven surfaces and limit climbing stairs and steps.
On 13 January 2021, Dr Singh recorded:
“foot pain still same
rt shoulder pain 2 months
used to use crutches while walking”
The applicant was referred for an ultrasound of his right shoulder.
On 17 January 2021, a physiotherapist, Twinkle Valani, reported to Dr Singh that at an assessment on 11 January 2021, the applicant reported compensating pain in the left hip and both shoulders. Ms Valani said the applicant did not require a CAM boot to support his right ankle and the effect of physiotherapy would be compromised if he continued to wear the CAM boot.
On 10 February 2021, Dr Singh noted
“rt shoulder pain get worse recently
pain consistant since he had ankle injury
wearing CAM boot
seen pain specialist and Ankle specialist”
The applicant was again given a referral for an ultrasound of the right shoulder.
In a SIRA certificate of capacity issued on 10 February 2021, Dr Singh included in the diagnosis of the work-related injury, the following,
“Right shoulder pain
Bursitis?”
The certificate noted that the applicant had experienced right shoulder pain for one to two months.
Physiotherapist, Mr Moses Chu, prepared a report for the insurer on 15 February 2021, which referred to the applicant hurting his right foot and right shoulder. The report stated,
“Two months ago, he started to have right shoulder pain because the right arm was always holding the right painful left knee for comfort straining the shoulder resulting in his shoulder pain.”
At a consultation on 29 May 2021, Dr Singh recorded:
“Right shoulder Not swollen. Non tender. No deformity. Movement restricted.”
On 6 December 2021, Dr Singh noted:
“pain in ankle get worse
difficulty in standing and sitting
legs get shaky due to pain
diffculty in walking”
Physiotherapist, Mr Peraveenan Jeyarasa reported on 15 February 2022 that the applicant first presented on 23 October 2021 for physiotherapy on his right leg. The applicant was wearing a CAM boot and was noted to have an antalgic gait with moderate to severe limping when walking.
On 11 March 2022, Dr Singh recorded notes of a case conference with the insurer and the applicant as follows:
“as per his independent assessment -he is fit for only admin duties but Shahzad is unable to do these suitable duties due to constant pain
in case conference with Shahzad -he is still not ready to go back to suitable duties since his pain get worse with cold weather
I explianed Shahzad that lot of issuses going on in his cases and lot of emails from his work since he got no capacity for works which looks inappropriate to me and that why i m going to discharge him from my care and he can see another GP and Shahzad is happy to see another GP”.
On 12 March 2022, Dr Singh prepared a handwritten response to a request for information, noting:
“Shahzad is relaying incorrect information to his management with regard to his ability to work. Hence I am releasing him from care from today.”
In a typed letter of the same date, addressed to whom it may concern, Dr Singh stated
“This is to notify that I am releasing Shahzad from my care as he is relaying incorrect information to his management with regards to his ability to work. He will need to find new GP. He has been verbally informed over the phone of this decision on 11/3/22.”
Mr Jeyarasa prepared a further report on 10 May 2022. The applicant’s current subjective complaints included constant pain in the right leg, worse with prolonged standing and movement. The applicant was still in a CAM boot and had an antalgic gait. Mr Jeyarasa noted that he had been seeing the applicant for the last five months with hardly any improvement. Mr Jeyarasa strongly recommended the applicant be referred to a pain specialist and psychologist.
In a report dated 25 July 2022, Dr Jeyarasa noted that it had been seven months since his initial consultation and stated:
“At the time of initial consultation, he mentioned pain in his (R) shoulder, however I was not able to assess and treat due to no liability being accepted int treating his shoulder.”
Dr Jeyarasa reported that the applicant had made hardly any progress with physiotherapy and it was evident that the applicant was suffering from chronic ankle pain. The applicant’s mental state was described as an issue. Dr Jeyarasa also noted:
“Another factor, which we must consider in Mr Shahzad’s case is his (R) shoulder pain. The mechanism behind this injury in my opinion appears to be due to the prolonged crutch use on his (R) shoulder, where excessive weight and pressure was passing through the auxiliary region repetively, causing shoulder pain. This was due to him not favoring weight through his foot and rather putting most pressure through his shoulder. It is important to note that I gathered this information through a subjective assessment rather than objectively as I was not approved of sessions or liability was not given to treat his shoulders. Also, he was not using crutches when we he was seeing me to make an objective assessment on his crutch use.
However, this mechanism of developing shoulder pain due to prolonged crutch use is possible and occurs often with long standing crutch use due to the pressure in the auxiliary area.
Another contributing factor which I deemed from his subjective was his excessive upper limb use when going up stairs or walking. He will tend to weight bear excessively through his hands and shoulder to take the weight off his injured (R) ankle. This is also a common mechanism that can cause shoulder pain, where excessive weightbearing can cause injury. Upon reading Dr Lai’s report and his assessment, I agree with his opinion on the cause of his shoulder pain as considering the amount of pain Shahzad is still in now, he would have taken compensatory methods to take pressure of that (R) ankle.”

Dr Lai

The applicant relies on medico-legal reports prepared by general surgeon Dr Min Fee Lai, dated 20 October 2020, 7 September 2021, 2 October 2021, and 22 March 2022.
In his first report, Dr Lai noted that the applicant was seen via video link with the assistance of a friend who acted as his interpreter.
Dr Lai took a history of the injury and noted that the applicant was referred for physiotherapy and placed in a CAM boot. The applicant reported that he was not using crutches anymore but apparently did use them for five months.
The applicant complained of pain and stiffness in his right ankle. Although the applicant was carrying extra load on the left ankle, the applicant had no issue with that ankle.
Dr Lai conducted an examination of both ankles and hind feet and made an assessment of 11% WPI of the right ankle and hind foot.
Dr Lai was asked whether the applicant had sustained any consequential conditions and responded:
“Your client has not developed any consequential conditions.”
In his report of 7 September 2021, Dr Lai noted that the applicant had moved to a second floor apartment which required him to climb up a flight of stairs. Dr Lai recorded the applicant’s current status as follows:
“About seven to eight months following his right ankle injury Mr Khurshid started to notice increasing pain in his right shoulder. He attributed this to the improper use of crutches as well as using his right arm to balance himself against the wall or hang onto the rails to drag himself up the stairs or steady himself while coming down the stairs.
He informed me that he never complained about his right shoulder pain during my last consultation with him because he thought he was only consulting me with regard to his right ankle. He also stated that he has always complained about this pain to his physiotherapist who looked after his right ankle. This was never recorded, possibly due to communication problems.
In February of 2021 he did mention about this pain to his local doctor. However, there has been no investigations carried out in the form of imaging, nor was he referred on to an Orthopaedic Surgeon for further assessment.”
An examination of both shoulders revealed pain in the right shoulder in the subacromial region. There was no muscle atrophy. The Hawkins impingement test was positive for the right and restriction of movement on the right was recorded.
Dr Lai made a clinical diagnosis of bursitis and impingement of the right shoulder.
Asked whether the applicant had developed a consequential condition at the right shoulder, Dr Lai responded:
“It is my opinion that your client has developed a consequential condition of his right shoulder with impingement and bursitis. The condition was developed partly by the improper use of the crutches during his recovery from the fracture of his right ankle.
Because of the pain and stiffness in his right ankle he had difficulty negotiating stairs either up or down. He required to either hang onto the rails, or steady himself with his outstretched right arm to drag himself up the stairs or steady himself while coming down the stairs. This in part would have caused extra stress on his right shoulder which has resulted in the bursitis and impingement of this joint.”
Dr Lai suggested that the right shoulder should be investigated and required treatment including possible steroid injection.
Dr Lai was asked to comment on the insurer’s s 78 notice and the report of Dr James Powell, dated 31 March 2021. Dr Lai responded:
“As I have described in my answer to question 4, your client’s right shoulder pain developed following the improper use of crutches during his recovery from the fractured right ankle. This has been compounded by him having to use his right arm to drag himself up the stairs or using his right outstretched arm to steady himself against a wall while doing so. Similarly, he also has to use his right arm in steadying himself either against a wall or the rails when negotiating down the stairs.
It so happens, that he lives in an apartment that is on the second floor, requiring him to negotiate a flight of stairs either up or down.
As a result of him using his right arm in an improper way, clinically he has developed bursitis with impingement of his right shoulder. The need for him to use his arm in this fashion was due to the fact that he had a fracture of his right ankle. Therefore, the condition of his right shoulder is a consequential injury from the original fracture of his right ankle. It is therefore my opinion that your client should not be denied the claim for treatment to his right shoulder.”
On 2 October 2021, Dr Lai noted that the applicant’s solicitors had requested a WPI assessment of the right shoulder as the applicant did not wish to proceed with any surgery or treatment to the shoulder. Dr Lai assessed 11% WPI of both the right upper extremity and right lower extremity giving a combined total of 21% WPI.
In the report dated 22 March 2022, Dr Lai was asked to provide opinions in relation to the applicant’s ability to travel independently. Dr Lai also commented on the report of Dr John Bosanquet, dated 12 January 2022, stating:
“I have also since read Dr Bosanquet’s report dated 12 January 2022 (which was enclosed with the section 78 notice dated 10 February 2022). On page 5 of his report regarding his diagnosis, he does admit that the right shoulder may have rotator cuff tendinitis which he believes is unrelated to the injury to his foot. I disagree with Dr Bosanquet’s opinion regarding Mr Khurshid’s right shoulder disability being unrelated to his right foot injury. It appears that Dr Bosanquet has not taken into account Mr Khurshid’s improper use of the crutch while trying to balance himself against a wall in order to drag himself up the stairs to his apartment and to steady himself while coming down the stairs from his apartment.”

Dr Powell

The applicant was seen by orthopaedic surgeon, Dr James Powell on 22 March 2021 at the request of the insurer. The applicant was seen with an Urdu interpreter.
Dr Powell took a history of the injury and subsequent treatment, noting that the applicant mobilised on two crutches for about three months, perhaps longer then went on to a single crutch which he used in his right hand for another six to eight weeks on the advice of his doctor.
The applicant reported that after a short period of using crutches, he developed pain about the right shoulder and had difficulty elevating the arm. When he stopped using the crutches. The pain did improve a little, however, the applicant continued to have difficulties with pain about the shoulder and so stopped moving his right arm, keeping it by his side for comfort.
Approximately four or five months prior to the examination by Dr Powell, pain increased about the right shoulder. The applicant found he could not move his upper limb at the shoulder. The applicant’s doctor advised him that the shoulder had gone stiff and become frozen because he had not been moving it, trying to protect himself and the pain that had developed whilst using crutches. The applicant denied previous injuries or symptoms involving the right shoulder or upper limb.
Dr Bosanquet’s examination revealed tenderness and reduction in active range of motion at the right shoulder. It was noted, however, that the applicant showed spontaneous movement when demonstrating various areas of difficulties in dressing and undressing, suggested he had a greater range of comfortable motion function about the right shoulder.

Dr Kafataris

Injury management consultant, Dr Con Kafataris¸ prepared a report at the request of the insurer on 20 December 2021.
Dr Kafataris noted that the applicant complained of right shoulder pain but the insurer had advised that this had been declined following an independent assessment.
The applicant complained of pain of the right foot aggravated by weight bearing. Without using a CAM boot the applicant said he could only walk two or three steps around his bedroom.
Dr Kafataris said he had a discussion with Dr Singh, and it was agreed that the applicant presented with significant pain behaviour and had adopted a disability mindset.

Dr Bosanquet

The respondent relies on medico-legal reports prepared by orthopaedic surgeon, Dr John Bosanquet, dated 14 April 2021 and 12 January 2022.
In his first report, Dr Bosanquet took a history of the injury and noted that the applicant was given a boot and crutches. The applicant went to work on crutches doing office work. The applicant was on the crutches for three months.
On examination, Dr Bosanquet a noted that the applicant was wearing a moon boot and walked with a limp. The applicant demonstrated marked pain avoidance behaviour and with the moon boot removed was unable to weight bear on the right.
Dr Bosanquet gave the opinion that the applicant had ongoing pain, which could not be explained on the basis of underlying pathology. The fracture had now fully healed. Dr Bosanquet made an assessment of 5% WPI of the right ankle.
In his supplementary report, Dr Bosanquet noted that the applicant had been re-examined on 17 December 2021. Dr Bosanquet recorded that the applicant had been on crutches for more than three months.
Dr Bosanquet noted:
“He has also developed pain in his right shoulder which started eight to 10 months ago. He attributes this to having to use a crutch for a protracted period of time. He is unable to lie on the right side and has no problems on the left side.”
On examination, Dr Bosanquet noted marked pain avoidance behaviour. The applicant was unable to weight bear on the right side or stand on his full feet after removing the moon boot.
Examination of the shoulder demonstrated reduced range of movement.
Asked to provide a diagnosis, Dr Bosanquet noted that there were no radiological investigations. Dr Bosanquet said the applicant did not have a frozen shoulder but may have a rotator cuff tendinitis unrelated to the injury to his foot.
Dr Bosanquet said there was no injury to the right shoulder on 24 October 2019. With regard to the possibility of a consequential right shoulder condition, Dr Bosanquet stated:
“There is no evidence that using a crutch would cause this condition and the condition developed only recently.”

Dr Bosanquet found there was 7% WPI of the right shoulder but said the impairment was not due to the injury on 24 October 2019. Rather, it represented an underlying constitutional condition.
Asked to comment on the difference between his assessment and that given by Dr Lai, Dr Bosanquet noted that Dr Lai’s assessment was performed by telehealth.

Applicant’s submissions

The applicant submitted that it was significant that the respondent’s expert, Dr Bosanquet, accepted that the applicant had pathology at the right shoulder. Dr Bosanquet accepted that the pathology would amount to 7% WPI.
The applicant noted that there was no evidence of a right shoulder condition prior to the injury on 24 October 2019. The only basis on which Dr Bosanquet found the pathology in the right shoulder was unrelated to that injury was his assertion that there was no evidence that crutch use could cause the condition and his observation that it developed only recently.
The applicant referred to his statement evidence of ongoing issues with his right foot and the use of crutches and a CAM boot. The applicant described an onset of shoulder symptoms, subsequently increasing. The statement evidence noted that treatment was sought for the right shoulder. Further background information regarding the onset and persistence of symptoms in the right shoulder was provided in the applicant’s supplementary statement.
The applicant noted that there was reference to issues associated with the shoulder in the general practitioner’s notes. The clinical records from MyHealth Blacktown and The Ponds Medical Practice revealed ongoing symptoms in relation to the applicant’s right ankle and an inability to weight bear. On 31 January 2021, the records referred to right shoulder pain for two months associated with the use of crutches whilst walking. After that date, there was a consistent history of complaints being recorded by the general practitioners in relation to the right shoulder. The applicant submitted that clinically there was a history recorded by the applicant’s general practitioners, which was consistent with his statement evidence.
All of the independent medical examiners who had seen the applicant accepted that he had pathology at the right shoulder. The issue was whether, using a commonsense analysis, the right shoulder condition resulted from the right ankle injury.
The applicant had no problems with his right shoulder prior to the work injury. The applicant’s duties as a process worker would have engaged some loading on the right shoulder. The applicant was working without restriction previously.
The applicant submitted that the denial of a causal relationship without explanation by Dr Bosanquet did not overcome the significant body of treating medical evidence.

The applicant relied on the opinion of his treating physiotherapist, Mr Jeyarasa, who agreed with the opinion from Dr Lai. The applicant noted that approval had only been given for treatment of the right ankle and not the shoulder which explained the absence of reference to the right shoulder in the earlier physiotherapy reports.
The applicant noted that there was reference to right shoulder issues in the initial assessment report prepared by Mr Chu, although the lack of clarity in the description of the mechanism of injury was probably a reflection of communication issues.
Although Dr Lai did not initially record a history in relation to the shoulder in his first report, the applicant submitted that the shoulder became a more significant issue later on.
In March 2021, Dr Powell took a history of shoulder symptoms consistent with the applicant’s statement and general practitioner’s notes.
References to right shoulder pain were included in the certificates of capacity issued by Dr Singh from early 2021 onwards.
At the time of his first report, Dr Bosanquet took no history in relation to the shoulder and did not examine the shoulder. In his subsequent report, Dr Bosanquet acknowledged the pathological change at the applicant’s right shoulder but gave an outright dismissal of the causal relationship without any explanation.
Dr Kafataris had been directed by the insurer not to look at the shoulder in making his assessment. He did, however, record complaints of pain.
Dr Lai, in his second report, took a history of shoulder symptoms and explained how the condition at the right shoulder could have developed. Dr Lai subsequently commented on Dr Bosanquet’s opinion. Dr Bosanquet did not take into account the applicant’s reliance on his right upper limb to assist with ambulation.
Noting the contemporaneous complaints of right shoulder symptoms; the recommendations for treatment made by two physiotherapists; the applicant’s evidence in relation to the onset of symptoms; and the absence of prior symptoms despite heavy employment, the applicant submitted that the Commission would not accept Dr Bosanquet’s blanket denial of a causal relationship to injury. No other credible explanation for the pathology at the applicant’s right shoulder had been given or was identifiable on the evidence.
Weighing the evidence, the Commission would be comfortably satisfied that the applicant had a consequential condition at the right shoulder as a result of the injury on 24 October 2019.

Respondent’s submissions

The respondent submitted that the crux of the dispute was the paucity of evidence linking the ankle injury to the right shoulder complaints.
The applicant’s statement evidence was that he initially noted pain and stiffness in early 2020. Although the applicant said he thought pain would be temporary and subside, the applicant had, over time, complained of symptoms in many body parts other than the right shoulder. In the circumstances, the respondent submitted that it was unlikely that the applicant would not have brought the right shoulder symptoms to the attention of his treating practitioners.
The applicant was examined by Dr Lai in October 2020. The description of the applicant’s symptoms made no reference to the right shoulder. Dr Lai was specifically asked about any consequential conditions and said there were none.
A year later, Dr Lai attributed the applicant’s increasing right shoulder pain to the improper use of crutches. No evidence was available as to how the crutches were improperly used.
The applicant’s assertion that he did not complain of his right shoulder pain during the initial consultation with Dr Lai because he thought he was only seeing him in relation to the right ankle was said to lack credit. Similarly, despite the applicant’s assertion that he complained of pain to his physiotherapist, this was never recorded. The respondent noted that Dr Lai’s assessments were all conducted by video and submitted that they should be given little weight.
The respondent noted that the report from the applicant’s physiotherapist, Mr Hua, dated 27 March 2020, contained no reference to complaints of shoulder symptoms. The notes of the physiotherapist contained no reference to any right shoulder pain.
Although Mr Chu, took a history of right shoulder pain in his report, dated 15 February 2021, the mechanism described was inconsistent with the applicant’s evidence.
The applicant’s current physiotherapist, Mr Jeyarasa, prepared reports on 4 and 15 February 2022, which contained no reference to shoulder pain.
The respondent noted that there was scant reference to the use of crutches in the medical evidence. A clinical record made on 18 November 2019, recorded that the applicant was using a CAM boot and no longer using crutches. The respondent noted that this suggested that the applicant only used crutches for approximately four weeks. Following that there was prolonged use of just a CAM boot.
The respondent noted that there was not a single complaint of right shoulder symptoms in the general practitioner’s notes until January 2021, despite reports of symptoms in other body parts.
The respondent acknowledged the report of Mr Jeyarasa, dated 25 July 2022, but submitted that the Commission would give it little or no weight. The report was inconsistent with the contemporaneous evidence from the physiotherapist, suggesting a confected opinion given on instruction by the applicant. It beggared belief that a medical professional would not record reported symptoms simply because liability for those symptoms was not accepted by the insurer. Dr Jeyarasa noted that the applicant was not using crutches at the time he was seen.
The respondent noted that the report from the applicant’s orthopaedic surgeon, Dr Newman, dated 27 August 2020, made no reference to right shoulder symptoms.
The report from the applicant’s pain specialist, Dr Alan Nazha, dated 21 September 2020 contained no record of right shoulder symptoms.
The report of Dr Kafataris, dated 20 December 2021, in which an update on the applicant’s current status was provided, contained no complaints regarding the right shoulder.
The respondent noted that in a written response to a questionnaire from the insurer, dated 12 March 2022, Dr Singh recorded that he had released the applicant from his care as he was relaying incorrect information with regard to his ability to work to his management.
The respondent submitted that greater weight would be given to Dr Bosanquet’s opinions, which were given following a face-to-face examination.
The respondent submitted that the duration of the applicant’s use of crutches was in issue. There were references in the medical evidence to crutches being used for four weeks or three months. The applicant’s evidence gave the impression of 8 to 10 months of solid use of crutches.
There was a lack of cohesion in the evidence and a lack of consistency in the reporting of symptoms. The history provided to Dr Bosanquet in January 2022 suggested an onset of symptoms 8 to 10 months earlier which was much later than suggested by the applicant’s evidence.
Although Dr Bosanquet accepted that the applicant may have rotator cuff tendinitis, he did not accept that it was related to the injury to the applicant’s foot. The respondent submitted that there could be other causes for the right shoulder symptoms including, for example, the applicant’s physical work as a process worker.
The respondent submitted that the applicant’s evidence was riddled with inconsistencies. The applicant had suggested that his treating providers had overlooked his complaints. The applicant’s explanation that this was because liability had not been accepted in relation to the right shoulder lacked credibility. The applicant’s credit was in issue, noting that he had been discharged from Dr Singh’s care after conveying incorrect information to his employer.
The respondent submitted that an award for the respondent would be made in respect of the claim of a right shoulder condition.

Applicant’s submissions in reply

The applicant noted that the respondent had suggested that the applicant’s shoulder condition could be due to the nature and conditions of his employment. The applicant had only been employed by the respondent since May 2019 before the injury. If this had legitimately been considered a possible cause of the pathology, Dr Bosanquet could have given that suggestion, but he did not. In the absence of any medical evidence to support the respondent’s submission as to alternative causes, the submission would be disregarded.
The applicant observed that Dr Bosanquet did not deal with causation or identify any other cause for the pathology in the applicant’s right shoulder.
With regard to the respondent’s submissions in relation to the applicant’s credit and the evidence from Dr Singh that he had discharged the applicant from his care, the applicant noted that the general practitioner’s clinical notes recorded disquiet as to the applicant’s treatment by his employer. A clinical record made by Dr Singh on 11 March 2022 suggested that the applicant had been discharged from his care due to the number of issues in his case and the volume of emails being received from his work.
Correspondence from the insurer to Dr Singh suggested Dr Singh was being pressured to change his certifications and being bullied. Rather than the applicant being dishonest, the evidence suggested that the doctor’s treatment from the insurer and the pressure he was under were the reasons why the applicant was discharged from his care.
The applicant submitted that the Commission would be satisfied that the applicant had been put through the wringer regarding his return to work. The applicant had only been living in Australia for a limited period of time and his language skills were limited. The applicant had done the best he could in reporting his symptoms.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is no dispute in these proceedings that the applicant sustained an injury to his right foot and ankle on 24 October 2019. What requires determination is whether the applicant has sustained consequential condition at his right shoulder as a result of that injury.
The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[2] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[3], 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’.”
[3] [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[4], 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.”
[4] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained a consequential condition affecting his right shoulder. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] 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.”
[5] [2008] NSWCA 246.
The applicant has given evidence that symptoms in his right shoulder developed during the period in which he was using crutches following the right ankle injury. The applicant described his shoulder becoming stiff and frozen when resting on the crutches and an aching pain. In his more detailed supplementary statement, the applicant gave evidence that these symptoms gradually increased in around May 2020.
The applicant said that initially he didn’t complain of pain symptoms as he assumed they would subside once he ceased using crutches. Throughout late 2020, however, the applicant complained of right shoulder pain to his treating physiotherapist.
The applicant’s evidence is that he used crutches under both shoulders following the ankle injury for approximately eight months. The applicant said the right crutch caused pain as he relied heavily on that crutch for stability due to the right foot injury.
The applicant said his symptoms worsened significantly in around January 2021.
There is little in the contemporaneous treating evidence to corroborate the applicant’s claims with regard to the period in which he used crutches or the onset of right shoulder symptoms.
Although the treating medical evidence confirms ongoing issues in relation to the applicant’s right foot and ankle, and the use of crutches in October and early November 2019, the notes of the applicant’s physiotherapist record that he had been taught how to mobilise without crutches on 1 November 2019. The applicant had been advised on that occasion to only mobilise with one crutch outdoors. Similarly, on 4 November 2019, the physiotherapist, recorded that the applicant had been shown how to use no crutches.
On 18 November 2019, the applicant’s general practitioner recorded that the applicant was still wearing a CAM boot but no longer using crutches.
After that date, there is no record in the treating evidence of the applicant continuing to use either one or two crutches apart from the references to crutch use in the reports of Mr Hua. Those reports did not confirm the period during which crutches were actually used and must be read together with his clinical notes which suggested a cessation in around November 2019.
In contrast, the applicant was consistently noted by his treating practitioners to be continuing to mobilise with a CAM boot.
The contemporaneous evidence therefore suggests a cessation of crutch use less than four weeks after the injurious event.
The history of crutch use given to the medico-legal experts is also inconsistent with the applicant’s statement evidence. Dr Powell, in March 2021, took a history of the applicant using two crutches for about three months or longer, then a single crutch in his right hand for another six to eight weeks. A similar history was provided to Dr Bosanquet of approximately three months of crutch use.
In his initial report, Dr Lai recorded that the applicant used crutches for about five months. In his supplementary reports, that history was not amended, although Dr Lai did base his opinions, in part on an apparent history of “improper” use of crutches.
The applicant’s current physiotherapist, Mr Jeyarasa has given his opinion based on a history of “prolonged” crutch use, without specific articulation of the period in which crutches were used.
Nowhere in the treating or medicolegal evidence is the applicant’s evidence of crutch use for approximately eight months corroborated.
There are also inconsistencies in the evidence with regard to the timing of the onset of shoulder symptoms.

The applicant said he developed a gradual increase in pain at the shoulder in May 2020 and reported right shoulder symptoms to his physiotherapist throughout late 2020. There is, however, no reference to shoulder symptoms in the physiotherapist records or any of the other treating evidence during that period.
The applicant has suggested that the absence of reference to right shoulder symptoms in the treating evidence could be explained by communication difficulties or his limited understanding of his entitlements under workers compensation. The respondent has, however, noted that symptoms due to compensation in the left leg and hip and the left shoulder were recorded during this same period.
The first reference to right shoulder symptoms appears in a clinical record made by Dr Singh on 13 January 2021. That record does not, however, suggest an onset of symptoms in around May 2020. Rather, what was recorded was pain for two months, suggesting an onset in November 2020. The record does suggest an association with crutch use, however, even on the applicant’s statement evidence, crutch use would have ceased in around June 2020.
After that date, there is consistent reference to right shoulder symptoms in the treating evidence. Right shoulder symptoms were noted by physiotherapist, Ms Valani, in January 2021 and included by Dr Singh in the applicant’s certificates of capacity from 10 February 2021. The certificate on that date again recorded symptoms for one to two months, getting worse recently.
An onset of symptoms approximately two months earlier was also recorded by physiotherapist Mr Chu in a report dated 15 February 2021. Mr Chu appeared to associate the shoulder symptoms with the work injury although his explanation of the causal relationship is unclear, referring to the right arm holding a painful left knee.
I have approached the inconsistencies between the applicant’s evidence and the treating evidence with some caution. In Mason v Demasi[6], Basten JA stated:
[6] [2009] NSWCA 227.
“First, 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 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.”
The fact remains, however, that the applicant’s claims regarding the period of time in which he used crutches and the timing of the onset of right shoulder symptoms are either inconsistent with or not corroborated by the contemporaneous treating evidence.
I am satisfied on the evidence before me that the applicant has symptomatic pathology at the right shoulder. Although a history of right shoulder symptoms was not initially provided to either Dr Lai or Dr Bosanquet, both experts ultimately accepted that there was impairment at the shoulder.
As indicated above, the treating evidence consistently identifies right shoulder symptoms in the period after January 2021. Right shoulder symptoms were also reported to Dr Powell in March 2021.
The applicant’s task is to demonstrate, on the balance of probabilities, that those symptoms “resulted from” the work injury on 24 October 2019.
Given the lack of corroborative contemporaneous evidence, the applicant’s case rests heavily on his recent statement evidence and the histories retrospectively provided to his treating practitioners and medicolegal expert.
I am mindful in this regard of the comments of Lord Pearce in Onassis v Vergottis[7]:
"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] (1968) 2 Lloyds Report 403.
The reliability of the applicant’s evidence has also been called into question by the respondent, having regard to the comments of Dr Singh suggesting the applicant had been relaying incorrect information regarding his capacity for work.
I am not, however, prepared to infer from the limited evidence available regarding the applicant’s discharge from Dr Singh’s care, that the applicant’s credibility generally is so lacking as to render all of his evidence unreliable. On the basis of his certificates, I am satisfied that Dr Singh accepted the applicant’s claims of an onset of shoulder symptoms in the context of the work injury.
The applicant has consistently attributed his shoulder symptoms to his use of crutches or otherwise excessive weight bearing through his shoulder due to the work injury.
Whilst I am not satisfied that the applicant used crutches for as long as has been suggested in his statement evidence or the histories provided to the medico-legal experts, I am satisfied that for a period of time the applicant did use crutches whilst walking as a result of the work injury.
There is no doubt from the medical evidence that the applicant has consistently complained of pain when ambulating or weight bearing on the right due to the work injury. The treating evidence indicates that the applicant was advised by his treating practitioners to minimise weight bearing on the ankle. There is also consistent evidence of ongoing issues with the applicant’s gait due to the work injury, including the presence of an antalgic gait pattern.
Importantly, the applicant’s evidence and the histories provided to Mr Jeyarasa and Dr Lai described, quite apart from crutch use, excessive upper limb use when going up stairs, walking or standing in order to take the weight off his injured ankle.
Mr Jeyarasa has accepted that the applicant’s explanation for his right shoulder symptoms was credible. Although that opinion was based, in part, on a history of “prolonged” crutch use, which I am not satisfied is borne out on the contemporaneous evidence, it was also based on the mechanism of excessive upper limb use generally in order to take weight off the ankle. Mr Jeyarasa described this as a “common mechanism that can cause shoulder pain”.
Although Mr Jeyarasa’s earlier reports do not mention shoulder symptoms, he has in his last report confirmed that they were reported at the first consultation. As noted above, symptoms were also recorded contemporaneously in the evidence from Dr Singh, Mr Chu, Ms Valani and the medico-legal experts from early 2021 onwards.
The applicant’s medico-legal expert, Dr Lai, also accepted that the applicant had a consequential right shoulder condition due to “improper” crutch use, compounded by using his right arm to drag himself up stairs or steady himself against a wall or the rails when negotiating stairs. Dr Lai accepted that this mechanism caused extra stress on the right shoulder which had resulted in the bursitis and impingement diagnosed by him following clinical examination.
Weighing against the opinions of Mr Jeyarasa and Dr Lai is the evidence from Dr Bosanquet. Despite his clinical findings suggestive of pathology at the right shoulder and his observation of issues with weightbearing, Dr Bosanquet excluded the possibility of a consequential condition on the basis that there was no evidence that using a crutch would cause the condition and the recent development of the condition.
In giving this opinion, Dr Bosanquet had not engaged with the alternative mechanism described by the applicant, Mr Jeyarasa and Dr Lai of excessive weightbearing through the upper limb whilst ambulating, particularly when negotiating stairs in period following the cessation of crutch use. The significance of the recent development of symptoms is not explained. There is also some doubt in my mind as to whether Dr Bosanquet properly appreciated that to establish a consequential condition, the applicant need only establish that symptoms and restrictions in his shoulder resulted from the work injury.
It may well be that other factors have contributed to the shoulder condition, including constitutional or degenerative pathology or the applicant’s history of manual work. There is, however, nothing in the evidence before me to indicate that symptoms at the right shoulder were experienced or reported prior to the work injury or were due to any intervening event.
Notwithstanding the inconsistencies between the applicant’s evidence and the contemporaneous treating evidence described above, the evidence uniformly suggests an initial onset of shoulder symptoms in the period after the work injury associated either with crutch use or excessive upper limb use due to difficulties weightbearing and ambulating as a result of the applicant’s right ankle pain.
That mechanism has been accepted as causative of the right shoulder symptoms by Mr Jeyarasa and Dr Lai. Although I am not satisfied that either practitioner had a completely accurate history of the crutch use, the facts assumed by them do not have to correspond “with complete precision” to the facts established. I am satisfied that the histories provided to Mr Jeyarasa and Dr Lai were “sufficiently like” the facts established, so as to provide as proper foundation for the acceptance of their opinions.[8]
[8] See, for example, Paric v John Holland Constructions Pty Ltd [1985] HCA 58.
For the reasons given above, Dr Bosanquet’s opinion does not cause me any disquiet in accepting Mr Jeyarasa and Dr Lai’s opinions.
I do feel a sense of actual persuasion that right shoulder symptoms and restrictions have resulted from the injury on 24 October 2019. It is appropriate in those circumstances that the Medical Assessor be asked to assess the degree of permanent impairment at both the right lower extremity (ankle and foot) and right upper extremity (shoulder) resulting from the injury on that date.
I am also satisfied that there should be a general order for the respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

[2022] NSWPIC 467

23 August 2022