Kovacevic v Toll Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kovacevic v Toll Group Pty Ltd [2022] NSWPIC 548
APPLICANT:	Tony Kovacevic
RESPONDENT:	Toll Group Pty Ltd
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	5 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment; accepted claim for injury to right upper extremity (right shoulder); disputed claim for consequential condition of left upper extremity (left shoulder) as result of overuse due to favouring injured right shoulder; lack of contemporaneous evidence of complaints in respect of left shoulder; inconsistent evidence of applicant; applicant’s evidence refuted by respondent’s lay witnesses; consideration of Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan; Kooragang v Bates; and Nguyen v Cosmopolitan Homes; Held – the applicant has not satisfied the onus of establishing consequential condition of the left upper extremity as a result of injury to the right upper extremity; award for the respondent with respect to the claim for consequential condition of the left upper extremity; as assessment of permanent impairment as a result of injury to right upper extremity is not greater than 10%, medical dispute may not be referred to a Medical Assessor.
determinations made:	1. That there is an award for the respondent for the claim for consequential condition of the left shoulder.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tony Kovacevic (Mr Kovacevic) was employed by the respondent, Toll Group Pty Ltd (Toll) as a truck driver.
Mr Kovacevic sustained an accepted injury to his right shoulder on 12 October 2016. He also claims to have developed a consequential condition of his left shoulder.

By letter dated 3 June 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed to have sustained 17% whole person impairment (WPI) as a result of injury to his left and right shoulders. He claimed compensation of $40,650.
On 10 November 2021, Toll, which is self-insured for workers compensation, issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The notice advised Mr Kovacevic that Toll had accepted liability only for his right shoulder injury. It disputed liability for his claimed left shoulder consequential condition. Toll stated that the applicant had only 10% WPI in relation to his right shoulder injury. As no permanent impairment compensation is payable for impairment of 10% or less, it had determined that the applicant had no entitlement to compensation under s 66 of the 1987 Act.
Toll disputed liability for any treatment in relation to the applicant’s left shoulder. It disputed that he had suffered a compensable “injury”, as defined in s 4 of the 1987 Act, in relation to his left shoulder. It also disputed that he had a left shoulder disease injury, to which employment was the main contributing factor. In the alternative, it disputed that he had sustained a consequential condition to his left shoulder that was materially contributed to by his “alleged” right shoulder injury on 12 October 2016. It disputed that his employment was a substantial contributing factor to his left shoulder condition.
By letter dated 11 February 2022, the applicant’s solicitors requested that Toll review its decision to dispute liability for his consequential left shoulder injury. There is no evidence before me that the decision was reviewed.
The applicant lodged an Application to Resolve a Dispute (the Application) on 16 March 2022. He claimed that on 1 October 2016, he was lifting a gate when he felt pain throughout his right shoulder. He continue to work and over the following days experienced pain whilst lifting heavy truck curtains and repeatedly strapping loads. On 12 October 2016, he was strapping a heavy load onto a truck when he experienced sharp immediate pain throughout his right shoulder, “thus sustaining injury”. On 18 May 2017, he reported a deterioration of his right shoulder injury whilst strapping a load onto his truck. As a result, the applicant sustained an injury to his right shoulder, with a consequential injury developing in his left shoulder.
The Application claimed the sum of $40,650 in respect of 17% WPI, as a result of injury to the left upper extremity and right upper extremity on 12 October 2016.
The respondent lodged its Reply on 6 April 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has sustained a consequential condition of his left shoulder as a result of the accepted injury to his right shoulder.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for telephone conference before me on 14 April 2022. Ms Basal appeared for the applicant and Ms Bauer appeared for the respondent.
The Application was amended by consent to delete the words “As a result, the applicant sustained an injury to his right shoulder, with a consequential injury developing in his left shoulder” and insert “As a result of continuing pain in his right shoulder the applicant was compelled to rely heavily on his left arm to engage in day-to-day activities, including his employment duties, and suffered a consequential injury to his left shoulder”.
The parties advised that the respondent had served the applicant with a Notice for Production, but it was being dealt with informally, and no direction was sought.
On 6 May 2022, the respondent’s solicitors lodged with the Commission a copy of an email to the applicant’s solicitors dated 21 April 2022, sent at 11:11pm. The applicant’s solicitors were requested to comply with the Notice for Production and advised that should the requested documents not be received “by COB, I am instructed to apply to the Commission”.
The respondent also lodged the following:
“Dear Member, the Applicant has failed to respond at all to our Notice for Production. At the teleconference on 14 April 2022, the Applicant’s solicitor had confirmed she was actioning it and therefore there was no need for orders to be made. To date, we have not received the requested documents. In accordance with Rule 12.4(2) [sic], we seek that this matter be referred to the authority for consideration as to prosecution for an offence under section 290(2) of the 1998 Act. We will also seek an application as to costs” [sic].
This correspondence was referred to me on 6 May 2022. On 9 May 2022, I issued a direction that the applicant was to comply with the Notice for Production on or before 13 May 2022; the applicant was to serve on the respondent on or before 11 May 2022 any notice of objection concerning a document that had not been delivered, including the reason/s for objection; and either party had leave to request a further telephone conference.
The matter was listed for conciliation/arbitration hearing on 10 June 2022. Mr Barter of counsel, instructed by Ms Basal, appeared for the applicant, who attended on the Teams platform. Mr Doak of counsel appeared for the respondent, instructed by Ms Bauer. Mr McIlroy of Toll also attended on the Teams platform.
The respondent sought to rely on an Application to Admit Late Documents dated 30 May 2022 and attachments. The applicant did not object to the admission of the documents, provided that the respondent consented to the admission of his Application to Admit Late Documents dated 6 June 2022 and attachments. The respondent did object to the admission of those documents.
After hearing submissions, which have been recorded, I determined to admit both the respondent’s Application to Admit Late Documents and attachments, and the applicant’s Application to Admit Late Documents and attachments.
A further issue then arose, as the respondent’s counsel advised that, in light of the admission of the applicant’s late evidence, he may need to seek leave to cross-examine him.
Mr Kovacevic had, only some days before the hearing, been released from hospital, where he had been admitted with a head injury. It was for this reason that he attended the hearing on the Teams platform and not in person. It was apparent that he was unwell, and I did not believe it was appropriate to grant leave for cross-examination in those circumstances. The respondent properly did not press its application on that occasion.
Directions were made for the filing and service of any other evidence on which the parties sought to rely. The hearing was adjourned to 13 September 2022.
On 5 August 2022, the Commission received an email from the applicant’s solicitors advising that the applicant sought leave to serve a Notice for Production on the respondent. The respondent objected to the Notice as it had not been served within 21 days of registration of the Application and leave to serve it had not been obtained.
I accordingly listed the matter for telephone conference before me on 15 August 2022. Ms Basal appeared for the applicant and Ms Bauer appeared for the respondent.
After hearing submissions from both parties, I refused the applicant’s application, pursuant to Personal Injury Rules 2021, regulation 6(1), that the Commission dispense with the requirement that a Notice for Production must be served within 21 days of the registration of the Application that initiated the proceedings. I confirmed the conciliation/arbitration hearing date of 13 September 2022. The submissions and my reasons were recorded.
The matter was again listed for conciliation/arbitration hearing on 13 September 2022. Mr Barter of counsel, instructed by Ms Basal, appeared for the applicant; and Mr Doak of counsel instructed by Ms Bauer and Ms Jayasuriya, appeared for the respondent. The applicant and his wife attended in person, and Mr McIlroy attended on the Teams platform.
The applicant sought to rely on a further statement dated 4 August 2022. The statement had been served on the respondent, which did not object to its admission, but no Application to Admit Late Documents had been filed. The applicant was directed to file an Application to Admit Late Documents, attaching his statement, on or before 20 September 2022. The applicant complied with that direction.
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 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)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 30 May 2022 and attachments, filed by the respondent;
(d)    Application to Admit Late Documents dated 6 June 2022 and attachments, filed by the applicant;
(e)    Application to Admit Late Documents dated 7 July 2022 and attachments, filed by the respondent;
(f)    Application to Admit Late Documents dated 23 August 2022 and attachments, filed by the respondent; and
(g)    Application to Admit Late Documents dated 20 September 2022 and attachment, filed by the applicant in accordance with my direction.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Tony Kovacevic

Mr Kovacevic has made several statements, the first of which is dated 2 March 2022.
The applicant commenced work as a truck driver with Toll in or about September 2006.
On 12 October 2016, he sustained an injury to his right shoulder. During the rehabilitation process, he became highly reliant on his left arm and sustained a consequential injury to his left shoulder.
The injury occurred when he was strapping a heavy load on his truck. He pulled down on the straps with his right shoulder and suffered shooting pain. He told “Mark”, his Health and Safety representative, that he had hurt his right shoulder, but felt he could finish the delivery. Mark agreed and told him to call if his pain worsened.
The pain in his right shoulder got progressively worse, as he had to open the truck gate, which weighed about 26kg, and help unload the truck. He called Mark and told him about his symptoms. Mark told him to finish work early.
He consulted his general practitioner (GP), Dr Sugeesh Pathirana, on 12 October 2016.He informed the doctor that he had ongoing pain in his right shoulder, which was radiating into his neck and down his arm. Dr Pathirana recommended that he attend Physio Interactive Merrylands.
He returned to light duties. He was no longer driving trucks, but doing other physical jobs, such as surveying trucks, checking tyres, delivering pallets with a ute, and helping the work maintenance employee attend to the depot. He was able to manage his right shoulder pain by relying heavily on his left shoulder and taking pain medication.
The physiotherapist, Mr Peter Lu, provided him with stretches and exercises for his right shoulder. He did not find the treatment overly helpful and continued to have severe pain in his right shoulder.
Throughout 2016 and 2017, he continued to treat his right shoulder with physiotherapy, pain medication, and rest. His right shoulder remained weak, and he struggled to do any lifting, extended driving, or overhead activities. “Naturally”, he began using his left arm more, as he wanted to protect his right shoulder and give it the best chance of healing.
He told Dr Pathirana on 6 June 2017 that his pain continued to deteriorate after aggravating his right shoulder a couple of weeks ago. He was referred for MRI on 28 June 2017, and then referred to Dr David Duckworth, orthopaedic surgeon.
He consulted Dr Duckworth on 26 September 2017. Dr Duckworth recommended conservative treatment and referred him for a cortisone injection. He had the injection on 28 September 2017, but it did not provide any ongoing relief.
He told Dr Duckworth on 24 October 2017 that he had not experienced any pain relief after the injection. Dr Duckworth recommended surgery, and he agreed, as he wanted nothing more than to regain his pre-injury capacity.
He underwent surgery on 9 November 2017. Post-operatively, it was recommended that he rest and keep his arm in a sling for about two weeks.
Following surgery, his inability to use his right arm meant he became highly reliant on his left arm. He used it when getting changed, grocery shopping, or cleaning. As a result, he noticed his left shoulder started becoming sore and fatigued, due to the overcompensation. Even though he felt these symptoms, he was so focused on his right shoulder, as that was his initial injury, and he did everything he could to manage the pain, as he knew it all came from his right shoulder.
On 14 December 2017, he told Dr Duckworth his pain was finally settling. Dr Duckworth recommended that he wean out of the sling and re-commence physiotherapy. He found it of little help, as his right shoulder continued to feel stiff and tense.
In about December 2018 [sic], he returned to work on light duties. This consisted of administrative tasks, as he was still not allowed to drive trucks. He was better able to manage his pain with these duties. Dr Duckworth was of the opinion that he could never drive a truck again. This was difficult to accept, but he knew he had to push himself to return to work in any capacity.
On 19 April 2018, he told Dr Pathirana that he was still struggling to use his right arm and had ongoing restricted range of movement and pain. He felt his improvements at physiotherapy had plateaued and his right shoulder was no longer getting stronger or more mobile. His left shoulder was also becoming increasingly stiff and painful.
Dr Pathirana opined that he may have adhesive capsulitis at his right shoulder, and recommended he consult Dr Duckworth.
He told Dr Duckworth on 1 May 2018 that he was frustrated with his slow recovery and was eager to return to driving trucks and working at his pre-injury capacity. Dr Duckworth said he could commence driving trucks if he really wanted to but should not be doing any overhead or heavy lifting. He reiterated the need to continue physiotherapy and work on strengthening and improving range of motion.
On 14 August 2018, he told Dr Duckworth he was still unable to drive his truck. Dr Duckworth said it was unlikely he would ever regain his pre-injury capacity. He recommended an MRI of the right shoulder.
He consulted Dr Pathirana on 9 November 2018 with the MRI results. Dr Pathirana informed him he had poor tendon quality but would likely not respond well to further surgery. He recommended focusing on conservative treatment, so that he could possibly downgrade to an easier truck to drive.
Throughout 2019, he continued to complete office duties and helped train new drivers. When training, it was almost impossible not to use his arms. He had to get in and out of a truck, demonstrate how to strap a load, and how to get materials off the truck. He did avoid lifting loads, as he knew he couldn’t do that. Whenever he was completing any of these tasks, he would be relying heavily on his left arm because of the restriction and pain in his right. He also favoured [sic] his left arm when picking up phones, typing, or light lifting.
He kept up physiotherapy for his right shoulder but found it was not having any ongoing effects on his rehabilitation, because he continued to suffer aching pain and weakness. His right shoulder got fatigued easily, so he continued to try and protect it by increasingly using his left arm.
He consulted Dr Milad Youkhana on 13 February 2020. His right shoulder continued to flare up intermittently. He no longer felt like the happy and independent person he used to be, as he was highly reliant on his wife to help him and had to adapt all his daily routines to manage his pain. Dr Youkhana prescribed pain medication.
On 20 June 2020, his employment was terminated. This was extremely devastating, as he had worked there for nearly 15 years. He was not provided with any notice, but “pulled into a meeting where they told me that I had been let go”. A union delegate escorted him to his locker to grab his things and did not let him say goodbye to his friends or co-workers.
He felt humiliated and angry that they would treat him like a criminal when he had done nothing wrong and had always worked incredibly hard. He had been unable to work since.
He told Dr Youkhana on 14 August 2020 that the termination of his employment had had a negative effect on his mental health. He was feeling hopeless and lost. He was frustrated that he continued to experience pain in his shoulder, despite his injury occurring three years ago. Dr Youkhana recommended that he consult exercise physiologist, Mr Ronan Power.
He consulted Ronan on 30 November 2020. Ronan showed him a range of exercises and ways to better manage his pain. The treatment helped both physically and mentally.
On 9 June 2021, he told Dr Youkhana he was struggling to manage his bilateral shoulder pain. His left shoulder flared up if he did any overhead activities, drove for extended periods, did any lifting, or domestic chores such as wiping surfaces, hanging up clothes, preparing dinner “etc”. He was becoming highly reliant on pain medication to mask his symptoms. Both shoulders continued to be painful and wake him at night. Dr Youkhana continued to prescribe pain medication.
On 24 August 2021, Dr Youkhana referred him for MRI of his bilateral shoulders. Dr Youkhana then recommended that he return to Dr Duckworth. The insurance company did not approve this treatment.

His treatment consisted of consulting his GP monthly, and psychologist Navine Gooniah monthly. He took pain medication.
He found it “appalling” that the insurance company had denied his left shoulder injury but approved MRI to his left shoulder. He was unable to seek approval to see Dr Duckworth to discuss the results of his left shoulder injury. He had been treated so poorly throughout the process and it had taken a toll on him.
He was still required to do physical duties at first when on light duties. He believed he had sustained a consequential left shoulder injury because it was completely asymptomatic prior to his workplace injury. It was only after he hurt his right shoulder that he began heavily relying on his left arm and developing pain symptoms he never experienced before.
The applicant has made two supplementary statements, the first dated 20 May 2022 and the second dated 6 June 2022.
On 20 May 2022, the applicant stated that in or about October 2016, he returned to light duties, but the work remained physically demanding. The duties included repetitive heavy lifting and pushing. He was required to unload and load heavy pallets daily. He was using his left arm only to carry out these tasks. He became heavily reliant on his left arm to carry out duties such as driving the ute, surveying the trucks, and checking the tyres.
He had to modify the way he did these tasks by protecting his right shoulder and relying solely on his left. This was OK to begin with, but over time he noticed his left shoulder would fatigue easily. He had no choice but to use it, as his right shoulder was riddled with constant burning pain.
He was so afraid of losing his job that he did everything possible to make it work with no complaints. This was also one of the main reasons why he did not formally report his left shoulder condition immediately when he first experienced symptoms. He was afraid his position would be terminated if he complained of more injuries.
Throughout the remainder of 2016 and early 2017, he managed his left shoulder symptoms on his own. He avoided using his right shoulder because he was afraid of aggravating his injury, and the weakness and pain made it difficult to use it for any task. He performed stretches before bed.
He was then referred for surgery on his right shoulder. He was very focused on treatment and progress of his right shoulder, and the upcoming surgery, about which he was extremely nervous.
He underwent surgery on 9 November 2017, and was in a sling for approximately four weeks, unable to use his right arm. He began altering the way he completed any task. He became heavily reliant on his left arm for all daily tasks. This placed further pressure on his left shoulder again and his symptoms began to flare again.
Grocery shopping was much more difficult because he had to bear all the weight of bags on his left arm while his right arm was in the sling. By the end of the day, his left shoulder and arm were almost completely numb. He would have to lie down for 30 to 40 minutes after a shopping trip.
The pain in his left shoulder continued to get worse and more difficult to manage, particularly when completing chores such as food preparation, cleaning dishes, loading the dishwasher, vacuuming and cleaning. He had to do this on his own, as his wife is employed and he would be home alone.
Before his injury, he would undertake these duties with his dominant right arm, with the help of his left. After his injury, he couldn’t use his right arm at all, and more so after the surgery. He was continually trying to protect it and cradling it with his left hand in case something were to further aggravate his injury.
He struggled to make the bed, using only his left hand, and put washing on the line. He could use only his left arm, reaching above shoulder height to peg washing on the line. Doing this repetitively with one arm caused severe strain to his left arm and shoulder.
Until this point, he was in denial about his symptoms and continued to manage his left shoulder symptoms on his own. He did stretches at night, hoping his symptoms would resolve with rest and medication.
In about late June 2020, his employment was terminated. He became highly depressed and was referred to a psychologist. His mental health was at a very low point, and the pain in his left shoulder became debilitating in about late 2020/early 2021. He had never experienced pain in his left shoulder before the injury. He was completely asymptomatic, and able to perform to full capacity with no restriction.
He was attending physiotherapy and exercise programs to strengthen his right shoulder after surgery. The exercises were long and straining on both arms. By the end of the session, he felt worse. He was pushed to points he was not comfortable with and the stretches were painful. (I note he had previously stated that Mr Power’s treatment was of assistance.)
His condition became particularly concerning when he was in the process of picking up a very light dish from the dishwasher and suddenly felt intense pain in his left shoulder after his exercise program. He finally felt it was time to speak to his GP about his ongoing left shoulder symptoms, because it reached a point where he could no longer manage it on his own and he felt it was just getting worse.
He consulted Dr Youkhana on 28 January 2021 and formally reported his left shoulder injury. He expressed that the pain in his left shoulder had worsened over time since the injury to his right shoulder. He explained that as a result of his right shoulder injury, he relied on his left shoulder for all his work duties when he returned to work during that period, and for any activities of daily living.
Over time, his left shoulder became severely restricted, as he could not raise his arm away from his body. The pain intensified when attempting to lift items or move his arm around. This left him devastated, as he was further burdened by his workplace injuries.
Although he had been experiencing pain and discomfort in his left shoulder since 2017, he was completely consumed by the pain in his right shoulder. As this pain was excruciating, he was fixated on healing his right shoulder over the pain in his left. He was required to attend several consultations and undergo constant radiological scanning. He was overwhelmed by the pain and fatigued by his inability to sleep and the appointment logistics.
He therefore persevered through the pain in his left shoulder, as it was inferior in comparison to the pain in his right shoulder at the time. As a result, he decided to prioritise his right shoulder over his other injuries. It was not until late 2020/early 2021, when the pain in his left shoulder significantly worsened, that he realised the full extent of his injuries.
He consulted Dr Youkhana approximately monthly in 2021 and advised him of his symptoms. He was prescribed pain medication and referred for MRI of his left shoulder. Dr Youkhana has recommended steroid injections and physiotherapy. However, this was yet to be approved by the insurer. He underwent MRI to his left shoulder on 26 November 2021.
He consulted Dr Youkhana on 6 January 2022. As a result of his pain, the quality of his sleep had been poor, and he constantly felt lethargic. His mental state had deteriorated as it was difficulty for him to engage in any activities he previously enjoyed.
He has continued to experience symptoms of pain, restricted range of movement and weakness in his left shoulder. Whenever he stands, drives, or carries shopping for prolonged periods, the pain in his left shoulder is intensified. He no longer hangs out clothes due to overhead reaching causing severe left shoulder pain. His wife does this, and any other household chores, after she gets home from work.
His treatment for his left shoulder included monthly GP consultations. He attempted to self-manage his symptoms by resting and taking pain medications. Due to the severity of his symptoms, he had developed reliance on alcohol.
The applicant’s next statement is dated 6 June 2022, prepared in response to a statement by Ms Cathie Williams, who is employed by the respondent. He described paragraphs 10, 11 and 13 of her statement as false. These paragraphs relate to his duties after he returned to suitable duties after right shoulder surgery.
He was not doing a solely sedentary role when he returned to work on light duties. He was still called to drive and bring colleagues (who were also on workers compensation) to and from work. He was constantly asked to do this.
On a day-to-day basis, there were urgent deliveries. This meant driving the truck with only his left hand because his right shoulder was injured.
He drove much longer than 15 minutes. He once had to pick up “All” (a nickname) from Blacktown and deliver him to Eastern Creek. From there, he had to drive him to Penrith. The trip took several hours.
Paragraph 14 of Ms Williams’ statement is “misleading”. He was never given the title of driver trainer. However, he did train three colleagues on separate occasions. The first was “Arthur”, and the second was a young Indian man whose name he did not recall. The last colleague knew how to drive but needed specific training with multi-drops, which included coordinating multiple deliveries.
He completed all three training sessions whilst he was on light duties, because he was never the person to ever say no to a task, even if it meant he may re-aggravate his injury. His job was so important to him, and he used to take so much pride in his role. That is why he was so devastated when his contract was terminated.
He believes Steve Kenny, Dean Burton and “Zayed” [sic] would confirm he did these roles during his period of only “light duties and sedentary work”.
Cathie was not based in their office and was not across all the extra roles he was required to do. He believed she did not understand the full extent of the duties he was required to complete.
The applicant’s final statement is dated 4 August 2022. It would “aim to specifically address and refute the assertions provided in the two witness statements” , the witnesses being Mr Burton and Mr Akbar (“Zayd”), whom he had nominated as able to confirm his evidence.
The applicant understood it had been two years since he worked with Dean Burton, who now holds a management position, so he is not surprised he cannot confirm everything in his statement.
Apart from this, he did not report to Dean whilst on supervisor duties. Dean’s desk was next to Steve Kenny’s desk. He reported to Steve Kenny. He often said good morning to Dean and asked him to pass on any certificates to Steve if he was not at his desk. Dean was primarily responsible for the forklifts during day shifts. He believes his title was day shift operator.
In paragraph 9 [of his statement], Dean notes he was assistant AM operations manager downstairs. This was true, but only towards the end of the applicant’s time at Toll Group. John Lam was operations manager downstairs, but the applicant always reported to Steve Kenny.
In paragraph 10, Dean noted he cannot recall his specific restrictions, but confirmed he would drive injured workers in the ute and take them to fitness for duty assessments. This is correct. Dean would be unaware of his restrictions, given he was not required to report to him.
The information given to Dean by Ms Williams that he refused to undertake the formal training requirements of drivers is inaccurate. Dean may not have been aware that he completed truck driver training but never possessed the formal title.
Dean probably didn’t know he took Arthur and another employee (name unknown) and showed them the ropes. This involved opening the curtains, filling out the manifest, strapping the load, getting in and out of the vehicle, and opening and closing the doors. He was passionate about trucks and willing to show them ways to improve efficiency.
He trained a young Indian man to drive his old truck, because it was unique, and he had driven it for 15 and a half years. It had a double clutch with a split gear switch, requiring switching between gears 1-4 and 5-8. The fellow did not understand how to drive this truck. He showed him. He appreciated the hands-on experience and detailed explanation. The applicant agreed, as it is always easier to show someone than provide a verbal explanation. He did not believe this man was still with Toll Group.
His suitable duties were supposed to exclude delivery duties and manual handling, but this is an inaccurate description of the duties he was required to perform. Driving injured workers to medical appointments and dropping them home was definitely part of his job. This entailed driving across various suburbs, taking up to several hours.
Dean may not have known he was often called upon to complete deliveries in the ute, with several packages weighing between 5kg to 12kg. When requests were impossible, he would refuse, as some requests were ridiculous, given the well-known nature of his injury.
However, small requests or favours were always asked. Each time he completed a delivery, he had to sign the ute out and back in. The delivery came under his driver number and the computer generated a manifest that printed that he was driving. It was well known and documented that he completed deliveries. They required him to strap the load with a small pallet, with the assistance of the forklift driver.
The “office ladies” knew he was completing deliveries, as they handed him the consignment notes, and asked for his driver number to print the manifest. The customer signed the manifest, which he would hand back in. He performed numerous deliveries which would be well documented.
Dean alleges he was vocal about his restrictions and would never work beyond his certifications. He asserts he never completed any lifting or pushing and did not load or unload any pallets. This is untrue.
If the request was ridiculous, he would say words to the effect of “come on guys, let’s be realistic about what I can do”. Since being on workers compensation, he was treated differently. He was stared at in the kitchen whenever he was seated, insinuating he was slacking off. Other workers would remark “morning bludgers” and “I hope you aren’t getting used to this”. Although intended to be a joke, he knew they meant it, causing him to feel insecure about his employability. He always put his hand up to complete small jobs to prove his worth. Often people would say “this is urgent” and the customer was angry, without any regard to his injury. He chose to get on with it, as he had a strong work ethic and loved his job.
He often delivered 5kg to 12kg boxes, which meant sourcing the package, bending, lifting, and carrying it to the ute. He then strapped it to the tray, drove and dropped it off. He believes the office managers were aware of his restrictions, as they were often discussed in the kitchen across from the office. Dean may not have been aware he was making deliveries even though he was not supposed to.
Dean should have been aware he was loading and unloading pallets. If part of a delivery was missing, the customer would speak to the customer service ladies. They would then ask him to search the freight area. This consisted of sorting through pallets, constantly lifting and carrying boxes.
On another occasion, a planned team barbecue was cancelled due to Covid-19. He was instructed by either Steve or Dean to deliver the 12kg meat tray back to the Cronulla Life Saving Club from Eastern Creek. He did as he was instructed, despite the weight of the package and longevity [sic] of the journey. He never refused a job unless he was unable to lift it. He always volunteered to do “bits and pieces”. This was the type of worker he had always been.
It is untrue that he never reported his left shoulder pain. Prior to the formal report on 28 January 2021, he reported it to his supervisor, Steve Kenny. He had picked up “Al”, a forklift driver, from Blacktown and driven him to Penrith to pick up his x-rays, and then to Windsor to see his doctor. He then dropped him home.
Following this, he explained to Steve that both his shoulders were extremely irritated. Steve instructed him to go across the road and consult the Toll doctors. He does not recall the name of the doctor or the practice, as Toll frequently changed their provider. He knows it was across the road. These records would be documented. Nothing eventuated from this consultation, as this doctor was “fixated” by his right shoulder injury and surgical scar.
During this time, every consultation with his doctors and colleagues was focused on his right shoulder. He completed the formalities, and the consultations were quick. He was never asked about how he was feeling, or if his right shoulder was deteriorating. He was never asked if he had any pain in his left shoulder, or anywhere else.
He believed the doctor would ask the relevant questions, and all the documentation noted his right shoulder injury. He was unaware he could bring a claim for his left shoulder, as he did not understand his rights and entitlements under workers compensation. Had he been asked the relevant questions or understood his rights better, he would have reported his left shoulder pain and discomfort earlier. “However, you have to understand”, he was so focused and consumed by his right shoulder pain and appointment logistics that he was unable to think about the bigger picture of his injuries.
On 28 January 2021, Dr Youkhana noticed the restriction in his left shoulder and began asking questions about it. This led to the formal reporting of his left shoulder injury. Had Dr Youkhana not asked the relevant questions, he would still be unaware of his rights and entitlements.
Unless there have been changes in relation to the culture surrounding injured workers since he was on light duties, Dean’s comments are not reflective of the stigma at Toll. Once placed on “compo”, you were told to sit in the kitchen and wait for tasks. If the bosses heard laughter, they stormed in and delegated chores. He always completed these tasks without complaint. The general attitude was annoyance and that they were burdens. Snarky comments were always made. For example, he was constantly told to “stop faking it”, and “get off my arse”.
Zayd Akbar asserts he never spoke to him directly, and reported to Steve and Dean. This is partly true, as he only reported to Steve.
It is inaccurate that driving injured workers in the ute usually took only 15 minutes. These trips often exceeded 15 minutes. Eastern Creek is an industrial area with no housing. This meant he often picked up workers from as far away as Campbelltown from Eastern Creek. He had a strong work ethic and was always willing to prove himself and uphold his long-standing reputation.
It may be true that Zayd was unaware of his 15 minute driving restriction. However, there should have been protocols to alert others delegating tasks to injured workers. Zayd was not involved in his daily duties, as he looked after the workshop. He often returned the papers in the box outside the office and parked the ute in the parking lot.
Zayd was uncertain whether he trained people and said he did not drive trucks. This is true, as he often sat in the passenger seat, showed employees how to drive, and explained the correct protocols. This meant he frequently entered and exited the vehicle, undid the buttons of the curtains, and lifted the gates open and closed.
Zayd had remarked he would not injure himself from driving the ute. This is unfair, given the complexity of the overreliance on his left arm and the strenuous tasks he was required to complete.
Zayd asserted that injured workers were never forced to complete anything beyond their restrictions and there was a good work culture at Toll. Prior to his injury, he would have agreed. However, since his injuries, the differentiated [sic] treatment towards him was extremely evident. For example, the strict monitoring of the dangerous goods cabinet and PPE (personal protective equipment) cupboard. This required drivers to sign the stock out to ensure no one was stealing or pocketing extra materials for personal use. He was often questioned about signing such product out after his injury, despite having been a loyal worker for over 15 years.

Zayd noted workers were not looked down upon for refusing work. Choosing and refusing work went beyond his job description. The delegation of his duties had nothing to do with Zayd when it came to completing deliveries or picking someone up.
Zayd also noted he, Dean and Steve would never have asked him to complete tasks that could worsen his injuries. This is untrue, as both Dean and Steve were aware of his restrictions, although they may not have known the tasks they asked him to do were putting strain on his shoulders. Steve was aware of his left shoulder injury, given he had reported pain and been advised [to obtain] medical care.
When freight was delegated to him to sort and deliver, the weight would often be grossly understated, as customers paid for each kg. This often meant packages stated as 4kg to 5kg could be 10kg. Steve and Dean never looked at and weighed the packages, given the high volume.
Overall, to this day he does not understand why he was terminated. After giving 15 and a half years to Toll, to be escorted out without the opportunity to say goodbye to long term friends and colleagues was devastating. He couldn’t believe he was being treated like a criminal for being injured. He always envisioned retiring at Toll, as he was passionate about his job. He is saddened by this outcome every day.

Evidence of Cathie Williams

Ms Williams is the respondent’s regional injury management adviser. Her statement is dated 19 May 2022.
She had been told by Ms Bauer that the applicant’s left shoulder pain allegedly began in the period when he returned to work doing suitable duties.
She had been asked to provide a statement because she had very good understanding and knowledge as to what Mr Kovacevic was doing whilst on suitable duties, and whether he ever reported and/or made any complaints about experiencing left shoulder symptoms during his return to work on suitable duties.
Mr Kovacevic underwent right shoulder surgery in November 2017, then returned to suitable duties towards the end of 2017. She remembers he was placed in a suitable administrative duty role for the entire time following his return to work. This was purely a sedentary role.
The applicant was provided with a workstation and ergonomic equipment, and advised he was never expected to perform any tasks requiring lifting, pulling, or pushing above his assessed capacity. The only duties he was cleared to complete were directing traffic and clerical work. He was completely disallowed from any overhead work, truck driving and/or strapping, or pulling curtains.
The applicant was sometimes allowed to work as an offsider in company vehicles and infrequently drove injured workers to medical appointments, using the company utility vehicle. He was never requested to drive more than a 15 minute journey, and if he was asked, he would refuse. From her experience, he was very aware of his medical limitations during his return to work. He also refused to undergo training to become a driver trainer. For this reason, he never performed those duties.
There were times when the applicant was not allowed to take public transport without assistance, and his domestic driving was limited to driving to and from work, and for appointments only. He was restricted to a 5kg to 8kg handling capacity.
On 19 June 2020, Mr Kovacevic’s pre-injury employer withdrew their offer of suitable duties.
At no time does she recall, or have any record of, the applicant reporting left shoulder symptoms to her during his return to work. His employer also never notified her of him allegedly experiencing left shoulder symptoms during the completion of his suitable duties. If he had, immediate action would have been taken and implemented into a RTWP (return to work plan).
The first mention of any left shoulder injury claim against Toll was on 30 April 2021, in the IME (independent medical examiner) report by Dr Sheikh Habib.
[Neither] Mr Kovacevic, nor any of his treating doctors, whom she had regular contact with, ever requested investigation of his left shoulder. She understands this was the case until 26 November 2021, almost a year and a half after suitable duties were withdrawn.

Evidence of Dean Burton

Mr Burton is the fleet manager of Toll Global Express, having held that position for almost two years. His statement is dated 1 July 2022.
He was aware that the applicant had named him as a witness in his statement dated 19 May 2022. He has read the applicant’s statement and that of Ms Williams. He noted it was a long time since the applicant left the office.
He “honestly” could not confirm anything the applicant had written in his statement. When the applicant was employed by Toll, he was the assistant AM operations manager downstairs. While he could not specifically recall the applicant’s restrictions when he was on suitable duties, he recalls he would go in the work ute to pick up other injured workers and take them to “fitness for duty” assessments.
He does not recall the applicant doing “driver training” in those three separate vehicles. Ms Williams has stated he refused to undertake the more formal training to perform those duties.
The applicant’s suitable duties did not have any “delivery duties” or “manual handling” duties. It was more just driving people to and from doctors or picking them up to come to work when they were on restricted driving duties.
“To be honest”, his recollection was very different to what the applicant had put in his statement. He recalled the applicant was very vocal about his restrictions. If the guys asked him to help with “x”, he would reply “no, no, my restrictions are “yz”. He definitely never did anything his GP had not cleared him for. He agreed with Ms Williams’ evidence [that he was very aware of his medical limitations and refused to drive for more than 15 minutes].
The applicant definitely did not do any repetitive lifting, heavy lifting, or pushing movements whatsoever whilst on suitable duties. To his knowledge, the applicant did not unload or load any pallets whilst on suitable duties. He doubted this would have been approved by his doctor.
He found it very strange that the applicant never told anyone about his alleged left shoulder symptoms. He has been in this business for 20 years, and no one would say anything that would prevent an injured worker speaking up about issues at work. He definitely never said anything to the applicant, nor would anyone else have given him the impression that would prevent him coming forward.
There used to be a stigma in the 70s and 80s about not [sic] reporting injuries due to fear of losing your job, but he could say with 100% certainty that that stigma was not inside this business. He believed that if the applicant was really experiencing left shoulder pain whilst he was at work, he would have come forward, just as he did with his right shoulder.
He could personally confirm that Toll supported its injured workers, especially whilst on suitable duties. He understood the applicant waited a year and a half after ceasing work to report the left shoulder injury to his GP.
At no time did he recall, or have any record of, the applicant reporting left shoulder symptoms to him during his return to work.

Evidence of Zayd Akbar

Mr Akbar is the fleet manager of Toll Global Express for New South Wales and Queensland. His statement is dated 7 July 2022.
He was aware that “Tony” had named him as a witness in his statement dated 19 May 2022 and had read the applicant’s statements.
The applicant never reported to him directly. He used to report to “Steve” (Mr Kenny) and “Dean” (Mr Burton).
He used to ask Dean whether they had any available employees who could drive injured workers around in the company ute. These would never usually be more than 15 minute drives. However, he supposed some would be a bit more than 15 minutes. He was unable to give specific examples, as this was a long time ago.
The applicant was often put forward to assist. He was never aware that the applicant only had a 15 minute driving limitation. If he had spoken directly to him, he would not have approved his assistance. The applicant may have driven the ute on occasions that were more than 15 minutes, whether due to location or traffic, he could not honestly say. He did not recall if the applicant’s residence was within 15 minutes of the depot.
He was not certain if the applicant would have trained people directly. The applicant might have chosen to show them how to enter the cabin, or sit next to them to make a delivery, but he did believe he was cleared to drive trucks. He was honestly not sure about this.
The applicant was “a very good and honest guy”. He knew him the entire time he worked there. He was in a different role and the applicant did not report to him directly.
He is not medically trained, so he could not make any comments regarding the applicant’s left shoulder, but he did not think he would have become injured from driving the work ute.
When he worked for that branch of the company, people on workers compensation would be assigned to filing, office work, ute driving pickups/drop-offs, delivering messages to drivers, taking pictures of trucks etc. He often asked for help from such people so they felt they still had meaningful work and could be included in activities. This is how he grew to know the applicant.
When injured workers told him they had strict limitations, they were never forced to do anything they were not cleared to do, or which might risk further injury. They are trained to understand and respect peoples’ limitations. They do not have a culture in which workers are afraid to come forward when they are injured. (Emphasis in original).
“In all honesty”, he is a man of colour, and this has never been something he was worried about, because of how supportive everyone is. He recalled a time when they had 10 injured workers in the lunchroom.
They endeavour to ensure that workers who are injured are not sitting down all the time but are able to do something meaningful whilst they recover. It is very common for people to advise “I am not allowed to do this” when they have been injured. This is not looked down upon, as that is not the workplace culture at Toll. He personally believed Toll looked after people (especially injured people) very well.
The applicant stopped working for Toll two years ago. He had a conversation with him after he left, to check up on him and let him know he had noticed his absence. The applicant said he did not want to leave and loved Toll very much. He understood the applicant was unhappy with how his employment ended.
If the applicant had said something like “hey, I’m not able to do this, my left shoulder is feeling sore”, then no one would have forced him to do this. The applicant never told him he was having problems with his left shoulder. He does not have any documents or records of such a thing, “unfortunately”. If the applicant had told him, Dean or Steve, it would have been flagged immediately.
He can confidently say that neither he, Dean or Steve would have asked the applicant to do something that was unsafe and risked further injury. When they have an injured worker, they are advised what they can’t do, and they make it very clear what duties have been approved.
He suspected the applicant put his name forward because he knew he would tell the truth. He had no reason to lie, and valued honesty very much. He treated everyone fairly and would never be worried about seeing them outside work.

Evidence of Stephen Kenny

Mr Kenny is a fleet supervisor at Toll Global Express. His statement is dated 17 August 2022.
At the time of the applicant’s claim, he was the radio room operator. The applicant would report to him.
He was aware that the applicant had named him as a witness in his statements dated 6 June 2022 and 4 August 2022. He had read the statements of the applicant, Ms Williams, Mr Burton, and Mr Akbar.
He was aware of the applicant’s right shoulder injury and restrictions during his employment with Toll. He was directed by two separate fleet managers, Daniel Howison and Zack Bencun. Any directives he received were channelled through them. They have long since left Toll.
Before the right shoulder injury, the applicant used to be a very good worker. He was always quite helpful in the office. If he asked the applicant to do something, he would quite happily do it, no questions asked. After his injury, his attitude towards work shifted quite a bit. He would describe it as essentially “shutting up shop”.
Originally, the applicant was not overly keen to proceed with surgery, but afterwards he was much more vocal about what his doctors were recommending.
When the applicant was eventually cleared to attend work on suitable duties, he was only allowed to drive himself to and from work. His doctors initially would not approve him to drive the work ute. He recalled the applicant had quite tough medical restrictions that needed to be accommodated. However, they endeavoured to do so.
He recalled the applicant was never allowed to drive another truck after his right shoulder injury. Due to this, they “made up a role” to allow him to continue working at Toll. This was in the radio room and involved helping one of their “trailer allocators”. Unfortunately, it was only temporary. It was never going to be a long-term role of full time gig.
“From memory”, the applicant was accommodated for quite a long period before the role was no longer sustainable and withdrawn. He believed this was over two years ago.
It seemed to him that the applicant no longer wanted to try and help himself return to his role as a truck driver. He could not say whether this was due to being comfortable in the temporary role. It just seemed like he didn’t see any real point in trying to work.
The applicant was never an emotional person. He would describe him as a “hardy man”. The only time he saw him get emotional was when the role in the radio room was withdrawn.
When the applicant was on light duties, he definitely did not do any heavy manual labour or physically demanding work. He was in the office for a long time, He would assist with the smaller requests.
As regards the applicant’s evidence about the barbecue, he and “Dimitri” used to run the North Cronulla Surf Club. However, he could not honestly recall the example the applicant had identified.
The applicant had said he reported his left shoulder pain to him. If the applicant had reported issues with his left shoulder, he would have immediately reported this to “Toula”, who looked after all the workers compensation claims. She and Cathie would have this in their files if it was reported to him. (It is apparent from an incident/hazard report attached to the Reply that Toula is Ms Toula Kouros).
If the applicant had come to him with another injury, he would have told him to go and see Toula straight away to make a record, then asked him to see either the company doctor or his own. He could confirm with absolute certainty that this would have occurred if the applicant reported left shoulder issues to him. He does not “muck around with injuries”. If someone thinks they need medical attention, he will send them to a doctor. This is protocol for every driver.
At no time does he recall, or have any record of, the applicant reporting left shoulder symptoms during his return to work on suitable duties.

Medical evidence

Sonic HealthPlus Guildford

It is not my intention to refer to all the clinical records of the practice.
It appears that the first record of symptoms in the applicant’s left shoulder was on 18 May 2017, and I will comment on this in my reasons. There was then no record of any issues with the left shoulder until 28 January 2021.
On 12 October 2016, Dr Sugeesh Pathirana recorded that the applicant had been driving older trucks two weeks ago. He had issues with the gates and curtains. He was lifting a gate when he felt a twinge in his right shoulder. He kept working. “Today”, he was throwing a strap around the load when he felt sharp pain in the shoulder. He had pain in the neck as well.
On 19 October 2016, Dr Pathirana recorded that the pain had subsided. The applicant had had two sessions of physiotherapy already. The gate was fixed. The plan was for suitable duties and physiotherapy.
On 26 October 2016, Dr Pathirana recorded that the applicant was feeling better every day. He had been going out in the truck as an offsider. He was functionally improving, and his attitude was positive. He was not happy with the care he was given at physiotherapy. The plan was to allow offsiding and continue physiotherapy.
On 2 November 2016, Dr Pathirana recorded that the applicant was feeling much better. The plan was to clear him for pre-injury duties.
On 18 May 2017, Dr Christopher Ogonowski recorded that the applicant was strapping a load and pushing down with his right hand. He felt sudden pain in his upper trapezius, right sided/right inner rhomboid. He reported it and finished delivering the load. The pain had been slowly worsening since 7:30am. Dr Ogonowski recorded a past history of a left shoulder soft tissue strain in November 2016.
On 17 May 2018, Dr Pathirana recorded that the applicant was disappointed about Dr Duckworth’s attitude and lack of communication at the last consultation. He “didn’t like what he said”. He was also not happy with how his employer handled his claim – “no care” factor. He had been able to find suitable duties and had been busier than last week.
Dr Pathirana discussed with Toula the importance of engaging a rehab provider/workplace assessment. It was most likely the applicant would have issues fulfilling his normal duties in future. She agreed to discuss this with the injury management adviser and requested it in writing. He advised the applicant to discuss it with Toula.
On 31 May 2018, Dr Pathirana recorded that the applicant was still frustrated with Toll. They “do not care of his recovery, no one has contacted him to see how he is going – lack of communication”. He had been asked to provide recommendations of drivers’ ability to carry out driving duties when he went out with them, which he was not supposed to assess. He denied symptoms of depression.
On 19 June 2018, Dr Pathirana recorded that apparently the workplace assessment had been performed. The report was to be chased. Work capacity assessments had been arranged. The applicant had already seen a physiotherapist and psychologist and would see Dr Derek Lee next week.
On 9 November 2018, Dr Pathirana conducted a case conference with “Debbie”, “Billy” and the applicant. They discussed Dr Duckworth’s recommendations for permanently modified duties. There was a risk of aggravation with overhead lifting and heavy lifting. All parties agreed to permanently modified duties. Debbie explained the return to work goals and said she would discuss them with the business.
The applicant said he was happy to accept any decision. He also expressed dissatisfaction with the way Toll had treated him and how they had cared. The insurer had stopped even the lawn mowing.
On 6 December 2018, Dr Pathirana recorded that he had contacted Toula. She was not aware of any future plan for the applicant. She needed to discuss this with management. He also contacted Debbie, who had forwarded the decision to the business unit and awaited a decision. Dr Pathirana also told her to follow up the applicant’s pending payments.
Dr Pathirana highlighted the importance of supporting the applicant. He said he is down but denied needing to see a psychologist. He could manage but was very unhappy and frustrated.
On 16 January 2019, Dr Pathirana recorded that the applicant was doing work in the office. He felt positive as he had good feedback from management and customers. He preferred to work in the office long term. He had come to terms with being on PMD (permanently modified duties).
Dr Pathirana “discussed with Debbie”. She would be having a discussion today with the new injury management adviser, Cathy [sic], who would be taking over the applicant’s case.

On 27 March 2019, the applicant was frustrated about some events yesterday and today at work. He had been asked to do a few trips to pick up drivers. One trip took three hours. His right shoulder had been sore since then. It had now settled down a little.
Dr Pathirana recorded that the applicant was very frustrated about the duties he had to do. He felt he had been used unfairly without directions from management and was very disappointed about the care he received from management. The plan was to downgrade his duties. A message and email had been sent to Cathie.
Dr Pathirana held a case conference with Ms Williams on 2 April 2019. They discussed the nature of the applicant’s exacerbation and the management of his condition – referral to a physiotherapist, restrictions at work.
They discussed the long term planning of the applicant’s employment and agreed on a functional and vocational assessment. Ms Williams explained how difficult it had been communicating with Toll to manage the claim. The applicant “felt really disappointed and felt Toll does not care for him.” He became emotional but declined the offer of EAP (employee assistance program). Ms Williams explained she would make a difference to his claim management.
A further case conference was conducted on 16 April 2019. The applicant’s symptoms had improved with physiotherapy. The physiotherapist advised he was doing well and would continue treatment. The aim was to achieve maximum medical improvement and perform a functional assessment.
On 15 May 2019, Dr Pathirana recorded that the applicant’s symptoms were settling down with physiotherapy. He had not completed the sessions. He was happy with suitable duties.
On 13 June 2019, Dr Pathirana recorded that the applicant felt like he had been back to where he was before the aggravation. He was working in the office. No other issues were raised.
On 19 September 2019, Dr Pathirana recorded that the applicant’s long standing injury was stable. He needed permanent modifications. “Discussed at length with his employer – awaiting decision by his employment.” He was doing sedentary tasks and his employer seemed happy with him doing this role. It was unlikely he would go back to pre-injury duties. He would be “for PMD”. He needed to finalise his maximum functional capacity through a new functional assessment.
On 17 October 2019, Dr Milad Youkhana recorded that on review of the applicant’s right shoulder injury, he was stable with intermittent pain and discomfort. He had reached maximum improvement. He was on modified duties and “seems to be comfortable with”.
Dr Youkhana recorded on 14 November 2019 that the applicant was happy with his current role (“Admin)” and was waiting to be placed on a permanent role. His treatment consisted of occasional Panadol.
On 13 February 2020, Dr Youkhana recorded that on review of the applicant’s right shoulder, he was stable, comfortable with his current duties, “Intermittent flare ups”. He had undergone functional assessment and the report was pending. His treatment was occasional Panadol and home based exercises.
A similar record was made by Dr Youkhana on 14 August 2020.
On 30 September 2020, Dr Youkhana recorded that the applicant’s right shoulder injury was stable. He had started an EP (assumed to be exercise physiology) program and found it helpful. He had lost his job and felt “so sad, emotional and not happy”. He was happy and able to attend work for the past two years since his injury with no issues, but felt he was treated unfairly and asked to leave immediately. He was keen to start a new job as soon as possible. Vocational roles were reviewed and approved.
Dr Youkhana continued to review the applicant’s right shoulder, describing it as stable. He continued to record psychological symptoms. He called Glenn Hill at Toll on 11 December 2020, to discuss the applicant’s condition and progress.
On 28 January 2021, Dr Youkhana held a case conference with the applicant and Ms Joanne Boggian, rehabilitation provider. He recorded that the applicant’s right shoulder was stable, and slight progress with EP program. The left shoulder was stable, “started to causes [sic] some pain.”
On 17 February 2021, Dr Youkhana recorded a review of bilateral shoulder injury. The applicant was improving well.
Dr Youkhana referred to only the applicant’s right shoulder injury on 17 March 2021. On 20 April 2021, although he recorded review of right shoulder injury, he noted “no change with shoulders situation”. The applicant was still keen to work.
On 18 May 2021, Dr Youkhana recorded a review of bilateral shoulder injury. The applicant was improving well. He still felt depressed, anxious, and was not coping well.
Dr Youkhana continued to review the applicant’s bilateral shoulders. On 13 July 2021, he recorded the applicant was stable with maximum improvement.
On 24 August 2021, Dr Youkhana recorded the applicant felt there had been some regression with both shoulders. He was not able to elevate his arms or perform overhead work.
Dr Youkhana recorded on 21 September 2021 that the applicant managed most housework but “gets sore shoulder afterwards”. His bilateral shoulders were stable.
There was “no change” on 19 October 2021. The applicant reported ongoing pain, mainly with overhead work. He was still limited with elevating his arms above his head.
On 16 November 2021, Dr Youkhana recorded ongoing bilateral shoulder pain and limitation, particularly with overhead activities. The applicant sounded anxious and depressed. His lump sum claim had been declined and he was distressed with the result and uncertain about his future. He remembered the way his employment had been terminated. He thought he had worked hard for Toll for many years and did not deserve to be treated like that. He was annoyed that no one from Toll communicated with him.
Dr Youkhana reported to the applicant’s solicitors on 6 January 2022.
The applicant had first reported left shoulder symptoms, that is pain and reduced movements, in January 2021. He reported it started a few months earlier, when he participated in an exercise program aimed at improving his right shoulder function. There was no reported frank incident.
Dr Youkhana diagnosed right rotator cuff tear, followed by surgical repair and complicated with adhesive capsulitis; and left supraspinatus tendinosis and acromio-clavicular joint arthropathy.
Dr Youkhana reported that the applicant had sustained right shoulder injury “since 18 May 2017”. He was initially managed conservatively and underwent surgery on 9 November 2017. He continued to experience right shoulder pain and limited range of movement.
In August 2020, the applicant commenced an exercise program with Absolute Balance, aimed at improving his functional capacities. His employment was terminated around the same time, resulting in a major psychological impact.
On 28 January 2021, the applicant reported gradual build-up of left shoulder pain, similar to that in the right shoulder. Symptoms occurred over time, and there was no frank incident to account for the onset of symptoms. Rotator cuff tendinitis was proven on MRI on 26 November 2021.
Dr Youkhana opined that the applicant’s left shoulder injury resulted from performing repetitive tasks that required lifting heavy weight, overhead lifting and strapping loads over a period of more than 12 years. The symptoms of his left shoulder got worse over time, with over-reliance whilst avoiding work with his right side during the injury period.
Dr Youkhana further opined that it is reasonable to consider the left shoulder condition to be chronic, resulting from repetitive overhead movements. Although tendinitis can be caused by sudden injury, it is much more likely to stem from the repetition of a particular movement over time. In this case, it was likely that it occurred over time whilst employed by Toll, accelerated by the over-reliance whilst suffering from right shoulder injury. Employment with Toll was the main contributing factor for the bilateral shoulder injuries.
Dr Youkhana again reported to the applicant’s solicitors on 12 May 2022, having been requested to provide “clarification”.
The applicant had been his patient since 17 October 2019. He reported left shoulder symptoms for the first time on 28 January 2021. “According to Mr Kovacevic”, left shoulder symptoms began some time before that, and resulted from participating in an exercise program prescribed to improve right shoulder function and strength.
The applicant denied any frank or direct incident to account for left shoulder symptoms, and that [sic] his symptoms had gradually worsened over a period of weeks.
Dr Youkhana reported that the applicant sustained right shoulder injury since 18 May 2017. He underwent surgery on 9 November 2017, followed by rehabilitation. He returned to suitable duties, using his left hand only, from 21 November 2017 to 24 January 2018.
The applicant continued to experience right shoulder pain and limited range of movement and was diagnosed with adhesive capsulitis. In August 2020, he commenced an exercise program with Absolute Balance.
On 28 January 2021, the applicant reported gradual build-up of left shoulder pain. Symptoms occurred over time, and there was no frank incident to account for their onset. Examination of his shoulder suggested rotator cuff tendinitis.
Dr Youkhana reported that the diagnosis was supraspinatus tendinosis and acromio-clavicular joint arthropathy, referring to the MRI on 26 November 2021.
As regards causation, Dr Youkhana opined that, despite the chronic nature of the left shoulder condition, symptoms were only experienced and reported after the right shoulder injury, surgery, and rehabilitation. “As such”, the left shoulder injury is a consequential injury from over-reliance whilst avoiding work with the right side during the rehabilitation period.

Dr David Duckworth – orthopaedic surgeon

Dr Duckworth reported to Dr Pathirana on 26 September 2017.
Dr Duckworth recorded a history of problems with the applicant’s right shoulder for the last four months. It was related to strapping a load. The applicant had had ongoing pain ever since and felt it was slowly worsening.
MRI showed a full thickness supraspinatus tear. Dr Duckworth described this as a difficult problem with an obvious rotator cuff tear. He had organised cortisone injection under ultrasound and physiotherapy. The applicant may require surgery.
On 24 October 2017, Dr Duckworth reported that the applicant had had very little help with the cortisone injection. His shoulder was much the same. He had constant pain, and it was five months since onset.
Dr Duckworth had discussed the options of further treatment, including surgery.
The applicant underwent arthroscopy of his right shoulder, mini-open supraspinatus repair and biceps tenodesis, performed by Dr Duckworth, on 9 November 2017.
On 14 December 2017, Dr Duckworth reported that the applicant was doing well, and a lot of his pain was settling. He had recommended he come out of the sling and start physiotherapy.
On 1 February 2018, Dr Duckworth reported that the applicant was doing well, with minimal pain. He had asked him to continue to work on range of motion and strength.
On 19 April 2018, Dr Pathirana again referred the applicant to Dr Duckworth. Dr Pathirana noted that the applicant was still very limited in his shoulder movements. He wondered whether Mr Kovacevic had developed adhesive capsulitis and requested Dr Duckworth’s opinion.
Dr Duckworth reported on 1 May 2018 that the applicant was doing well. He still had weakness with abduction. He needed to continue to strengthen his arm.
He had discussed with the applicant the future of his shoulder. He could return to driving a truck but should be permanently restricted from overhead lifting. He could not lift any heavy weights. He had to be careful with his shoulder in the future.
On 14 August 2018, Dr Duckworth reported slight improvement. The applicant was still not driving a truck and not using his arm overhead.
The applicant was still concerned about his outcome, and Dr Duckworth had organised MRI scan to assess the quality of the tendon. The applicant “has to understand he will never return to work as a truck driver.”
Dr Duckworth’s last report is dated 16 October 2018. He recorded some improvement in the applicant’s right shoulder. He still had pain with abduction and rotation. MRI showed his supraspinatus was intact, but he had a partial thickness tear.
The applicant was coping at work but had to be careful with overhead use of his arm. Dr Duckworth did not believe he could return to heavy lifting and overhead activities. His lifting restriction should be 10kg, below shoulder height. He was happy for the applicant to drive, but he should not be doing heavy lifting at work. This was a permanent restriction.

Dr Sheikh M Habib – orthopaedic specialist

Dr Habib was qualified by the applicant and reported first on 30 April 2021.
Dr Habib recorded a history that the applicant felt some discomfort in his right shoulder while lifting the gate of the truck on 1 October 2016. He continued working and did not require any treatment.
On 12 October 2016, while strapping a heavy load, the applicant pulled the straps with his right hand, developing severe right shoulder pain. He reported this, but at his own request he delivered the load. While unstrapping/unloading, his right shoulder became increasingly painful.
The applicant was sent to the company doctor and later consulted his family doctor, Dr Jukanovic [sic]. He returned to suitable light duties, including yard duties, and driving a ute to deliver small items. He continued to work, using mainly his left arm, until May 2017, which resulted in the left shoulder also becoming painful.
The applicant was referred to Dr Duckworth and underwent surgery on 9 November 2017. Dr Habib has referred to Dr Duckworth’s reports.
Dr Habib recorded that the applicant worked in suitable duties before the surgery. After the surgery, he returned to suitable duties using his left arm. His employment was terminated on 20 June 2020.
The applicant’s complaints included pain and stiffness of the right shoulder, and of the left shoulder increasing on use.
Dr Habib opined that the applicant had right shoulder injury and consequential left shoulder injury from overuse and reliance on the left arm, protecting the injured dominant right shoulder.
The diagnoses were rotator cuff tendonopathy and full thickness tear of the supraspinatus tendon, repaired; consequential rotator cuff tendonopathy and subacromial impingement syndrome of the left shoulder; and temporary aggravation of cervical spondylosis, now resolved.
Dr Habib assessed 9% WPI as a result of injury to each of the applicant’s right and left shoulders, a combined total of 17% WPI.
Dr Habib provided a supplementary report dated 2 February 2022. He noted that Dr Low had recorded the applicant having first noticed pain in his left shoulder in September 2019. This was “detailed to impress on the fact” that the applicant had developed pain in his left shoulder while working with Toll.
Dr Habib reported that it was important to note that the applicant used both hands/arms in all activities, particularly strapping the load. Being right hand dominant, he would have applied substantial force using that hand/arm, but “to presume that he did not use the left hand/arm frequently in applying such force while at work would in my opinion be unthinkable”.
Dr Habib opined that it was obvious and understandable that someone with an injured and painful (symptomatic) right arm would be using and relying heavily on the uninjured side. The applicant stated that while he was mostly using his left arm until May 2017, in such duties, he developed pain in his left shoulder, for which he received treatment from his NTD (nominated treating doctor) “in the form of pain relievers etc”.
Dr Habib noted that Dr Low “didn’t appear convinced that left shoulder complaints/conditions were not related to or attributable to the general nature and conditions of employment”. Dr Low had opined that it was possible.
According to Dr Habib, had Dr Low gone into detail of the onset of the left shoulder symptoms/condition, as reported by the applicant in a face to face meeting, and the details provided to him on 29 April 2021, he would have been more clear in coming to the logical conclusion that the applicant’s left shoulder condition was work related.
Dr Habib concluded that Dr Low’s report and the s 78 notice “lack logic and medical reality”. Both documents “appear to strive hard at keeping the magic impairment figure to below 10%, protecting the insurer at the cost of the injured worker”.

Dr Adrian Low – orthopaedic surgeon

Dr Low was qualified by the respondent and reported first on 6 September 2021. He noted that due to, at times, a poor recall of events, his history had been supplemented with the medical reports provided to him. The consultation took place by Telehealth.
Dr Low recorded a consistent history of the injury on 12 October 2016, aggravation on 18 May 2017, and treatment by Dr Duckworth. Following surgery, the applicant continued to experience constant shoulder pain, even at night, exacerbated by most movements. He considered surgery made only a slight difference to his symptoms. He returned to work on restricted duties but stopped work altogether on 19 June 2020.
The applicant complained of constant pain over the superior aspect of his right shoulder, exacerbated by lifting. He had trouble sleeping due to pain. There was clicking during rotation with the arm by the side. He could drive an automatic car without much issue. He attended physiotherapy until December 2018 but felt it had not helped. This was followed by exercise physiology until May 2021.
The applicant first noticed pain in his left shoulder two years ago, not related to any obvious injury. The symptoms were currently not as severe as in his right shoulder and had become progressively more bothersome with time. He had had no investigations or treatment for this shoulder. He also suffered from depression, for which he had been prescribed medications.
Dr Low summarised that the applicant had sustained a work-related injury to his right shoulder, which was eventually managed surgically. He also developed spontaneous-onset pain in his left shoulder a few years ago, not related to any trauma. He continued to experience pain and stiffness in both shoulders, which had not improved with time or physiotherapy. A post-operative MRI of his right shoulder revealed a partial supraspinatus tear.
The applicant described no specific cause for his left shoulder injury, and simply noticed it one day. He felt the issues in his left shoulder started as a result of overcompensation for the problems in his right.
Dr Low noted that the various reports and certificates of capacity (COCs) provided suggested that the injury to the applicant’s left shoulder was a result of overcompensation due to the injury and problems in his right. However, a clear diagnosis had not yet been obtained, as he had had no investigations of his left shoulder.
Dr Low opined that the problem in the applicant’s left shoulder was not related to his right shoulder injury. Without further investigations, preferably with MRI, regular cortisone injections, and physiotherapy, as suggested by Dr Habib, may not be appropriate management. He opined there was little evidence to suggest the claim of injury to the left shoulder was related to the right shoulder injury on 12 October 2016.
Dr Low agreed that it was possible that the injury/condition that affected the applicant’s left shoulder could be attributable to the general nature and conditions of his employment at Toll. It was unclear whether employment was the main contributing factor to either the contraction of, or aggravation, acceleration, exacerbation or deterioration of a “disease injury” affecting the left shoulder. A “disease” process had not yet been established.

Dr Low did not believe Toll was liable for the applicant’s claimed left shoulder injury.
Dr Low noted that, during his examination, the applicant did not appear to be in the constant severe pain that he stated. His ability to drive without issues suggested his shoulders were not a constant problem. For the severe pain he allegedly experienced, he stated he only took Voltaren or paracetamol a few times a week.
Dr Low assessed WPI of 10% as a result of injury to the applicant’s right shoulder. He did not assess the left shoulder, as this was not clearly a compensable injury. Furthermore, without investigations and a definite diagnosis, it could not be determined if the condition had stabilised, reached maximum medical improvement, or was permanent.
Dr Low provided a supplementary report dated 27 May 2022. He was asked to review the MRI findings from imaging of the applicant’s left shoulder on 26 November 2021
The MRI revealed advanced AC (acromio-clavicular) joint arthropathy and supraspinatus tendinosis with no muscle atrophy. Dr Low reported such findings were not uncommon for a 64 year old male.
Dr Low was advised that the applicant first reported pain and reduced movement in his left shoulder to Dr Youkhana in January 2021. He never reported or sustained any injury or aggravation injury to his left shoulder during employment with Toll, which ceased on 20 June 2020. He was asked whether this was consistent with his understanding of the onset of left shoulder symptoms? He responded “Yes, Mr Kovacevic stated that the onset of symptoms in his left shoulder was not related to any obvious injury during employment or otherwise.”
Dr Low agreed with the respondent’s solicitors’ contention that the applicant’s employment was not a substantial contributing factor to his alleged left shoulder condition. The timing and nature of the onset of symptoms suggested it was unrelated to employment. The MRI of his left shoulder indicated the presence of an age-related degenerative condition.
Dr Low opined that the assumption that injury to a limb can be caused by overcompensation or as a consequence of injury to the opposite limb is not supported by the medical literature. The applicant had an age-related degenerative condition of his left shoulder that was unrelated to his employment. Dr Low did not believe Toll was liable for the alleged left shoulder injury.
Dr Low disagreed with Dr Habib’s opinion that the applicant had sustained a consequential left shoulder injury.

Vocational Assessment Report – The Workers Health Centre

The report is dated 15 September 2020, and was prepared by Ms Boggian, at Toll’s request. I do not intend to refer to it in detail.
The applicant’s diagnosis/condition was recorded as “Right shoulder soft tissue strain R rhomboids R upper trap Rotator cuff tear and subacromial bursitis post op develop adhesive capsulitis – aggravation settled.”
Ms Boggian recorded that the applicant did not report any injuries or medical conditions, apart from the injury to his right shoulder.

SUBMISSIONS

The parties’ submissions have been recorded and I will summarise them only briefly.

Applicant

The applicant submitted that the issue is whether he has suffered a consequential condition of his left shoulder. There is no dispute with respect to his right shoulder.
The applicant referred to the decision of Deputy President Snell in Trustees of theRoman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan), and its discussion of the law relating to consequential conditions, including at [100] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8.
The applicant submitted that it should be asked whether he had suffered a significant condition of his right shoulder, which has, as a result, cast unusual strain on his left shoulder? Having asked that, the question is does he suffer from a condition in his left shoulder? It is not necessary that he establish an actual injury.
The applicant submitted that he has provided subjective evidence in great detail. There are four statements that address the issues from his point of view, including the restrictions and impairment of his right shoulder, and his activities on his return to work, until 19 June 2020.
The applicant submitted that the ordinary principles of causation apply. The principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) are satisfied. “Common sense” is fortified by the medical evidence.
The applicant submitted that the entry in the clinical records on 18 May 2017 that he had a left shoulder strain in November 2016 is an early result of problems and restrictions he was suffering as a result of injury to his right shoulder. It is an informative entry. This is the only contemporaneous record of complaints about the left shoulder. It is the applicant’s claim that the consequential damage appeared over a period of time.
The applicant submitted that 9% impairment of his right shoulder may not be objectively that great, but to him it is. He submitted I would see from the records the problems associated with his right shoulder injury. There is possibly a psychological basis for favouring it more. Whether the reason is physical or psychological doesn’t matter. The question is whether as a result of the injury to his right shoulder, he suffered a consequential condition.
The applicant submitted there is nothing sinister in his complaints becoming more intense “down the track”, consistent with them developing over a period of time.
The applicant submitted that the significant part of Mr Kenny’s statement is that he had “shut up shop” after the injury. He asked whether this was due to his psychological condition or pain in his right shoulder? The pain and restrictions were so significant that he developed a condition in his left shoulder.
In reply to the respondent, the applicant submitted that it has not been established that he made no complaints about his left shoulder while he was working. The respondent’s witnesses say they would have been recorded, but the files have not been produced. It is not suggested that he complained of pain at its current level from 2017. It is a consequential condition that resulted from overuse over time. Put in perspective, there is no inconsistency in the history.
The applicant asked what caused the problems with his left shoulder? Maybe it was the exercise, maybe it was the harder aspects of the light duties. He submitted it doesn’t matter. What we need to look at is the complaints about his left shoulder as a result of the injury to his right.
The applicant referred to Dr Low having cited the medical literature. He submitted that it is seen often enough in medical opinions that overcompensation leads to a consequential condition. Dr Habib expressed “outrage” that it was suggested it could not happen.
The applicant submitted that it may be that he aggravated degenerative changes, demonstrated by MRI of his left shoulder, by overusing it. The reference to his left shoulder in 2017 may or may not be an error. It is consistent with pain in his left shoulder while working. It is an accurate record of what happened, but “not a great note”. It is a record of complaint of left shoulder pain that post-dates the injury.
The applicant submitted that Dr Youkhana and Dr Habib made it clear there were complaints resulting from various activities from time to time – all the activities since the operation in November 2017. The doctors have different emphases, but the same result.

Respondent

The respondent submitted that there is no issue about the legal principles, and also referred to Kooragang. It is a question of fact. The starting point is the factual material, including the evidence of the witnesses, and particularly the applicant.
Dr Youkhana took over the practice and the treatment from Dr Pathirana in 2019. The respondent submitted he offered two possible causes for the left shoulder symptoms.
The applicant referred to the entry in the clinical records by Dr Ogonowski. This entry relates to an injury on 18 May 2017. The respondent submitted that, when one goes back to the clinical records in October 2016, there is nothing about the left shoulder. There is a single entry about the left shoulder. The respondent cautioned that not too much weight should be put on it. It might be a mis reference to the right shoulder. It submitted this is the better inference, referring to the applicant’s evidence.
The respondent submitted that the applicant has not given any evidence about his shoulder becoming sore as a result of exercise, but that is the history recorded by Dr Youkhana. Dr Habib has recorded a history that the applicant continued to work after May 2017, resulting in his left shoulder becoming painful.
The respondent referred to Ms Williams’ evidence that there was never any report to the respondent of left shoulder symptoms. When considering Kooragang, the Commission should consider the factual and lay evidence, as well as the medical evidence. The respondent referred to the history taken by Dr Habib, compared with that of Dr Youkhana, and submitted there were clearly inconsistencies.
The respondent submitted that the applicant’s account has changed over time. It referred to the evidence of Toll’s witnesses. The applicant complains of significant and severe right shoulder problems, with no proper explanation of why there was no report to the employer. He gave evidence that he managed it on his own but is said to have reported it to his GP in 2017.
The respondent submitted that it is critical that the applicant’s evidence is that he was struggling with pain in the left shoulder. His employment was terminated in June 2020, but it was not until January 2021 that he reported it to Dr Youkhana. This raises the question, in light of his evidence of problems at least by 2017, why he would not report this to his GP?
The respondent submitted there is controversy about what the applicant was doing while he was on suitable duties. It referred to the three statements put on in evidence. The applicant says he was doing a lot of activity at work. He either consciously chose not to complain, or there is some other reason.
The respondent referred to Dr Low’s second report. He reviewed the MRI, which was the first investigation of the left shoulder. Dr Habib had no investigations. The respondent submitted I should weigh Dr Low’s opinion against that of Dr Habib. It’s a common sense test, but it must be informed by lay and medical evidence.
The respondent pointed to the lack of complaints to the GP. It submitted that due to the inconsistencies, I would not be satisfied that the applicant has sustained a consequential condition of his left shoulder.

SUMMARY

The applicant claims that, as a result of continuing pain in his injured right shoulder, he was compelled to rely heavily on his left arm for day-to-day activities, including his employment duties, thereby suffering a consequential condition of his left shoulder.
As the applicant submitted, relying on Brennan and the cases discussed therein, it is unnecessary for him to establish that he sustained an “injury” to his left shoulder within the meaning of s 4 of the 1987 Act, to succeed in his claim.
In Brennan, Deputy President Snell referred to Kooragang, as did both parties in this matter.
In Kooragang, Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to English authorities, his Honour added at [462E]:
“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.”
The applicant’s evidence is contained in multiple statements. Much of it is either lacking in specific detail or contradictory.
In his first statement, the applicant gave evidence that “during the rehabilitation process” (after referring to the injury on 12 October 2016), he became highly reliant on his left arm, and “sustained a consequential injury” to his left shoulder. Throughout 2016 and 2017, his right shoulder remained weak, and he struggled with various activities, so “naturally”, he began to use his left arm more.
The applicant stated that, following surgery, he became highly reliant on his left arm. He had symptoms in his left shoulder but was focused on his right. He has expanded on this in his subsequent statements, in attempting to explain why he did not report his left shoulder symptoms to his GP.
In his second statement, the applicant stated that when he returned to light duties in or about October 2016, the work remained physically demanding. One of the main reasons he did not formally report his left shoulder condition was because he was afraid his position would be terminated if he did so. This does not explain why he did not report it to his GP, or why he “managed” his left shoulder symptoms alone in late 2016/2017 and is inconsistent with his later statement that he reported it to Mr Kenny.
The applicant stated that although the pain in his left shoulder got worse and more difficult to manage, he was “in denial” and continued to manage the symptoms on his own.
Throughout this period, the applicant complained to his GPs about his physiotherapy, Dr Duckworth’s attitude, how Toll had handled his claim, that he had been asked to assess drivers’ ability, that his lawn mowing had been stopped, that he had been treated unfairly by Toll, that Toll did not care for him, and the termination of his employment. It is difficult to accept that he was in denial or reluctant to complain about his left shoulder when he appears to have had no difficulty in making numerous other complaints.
The applicant’s evidence is that he reported his left shoulder injury to Dr Youkhana on 28 January 2021. He has given no evidence that he complained of symptoms or reported any condition of his left shoulder to his GP before this date (including in May 2017). He initially gave no evidence about reporting left shoulder symptoms to the respondent but later gave evidence that he reported them to Mr Kenny.
The applicant’s statement dated 6 June 2022 is a response to the evidence of Ms Williams. He has refuted her evidence about the length of time he was required to drive by referring to one instance when he drove for several hours (and he complained about his right shoulder after a three hour drive on 27 March 2019).
While the applicant claimed Ms Williams “was not across” the extra roles he was required to do, she took part in case conferences with him and Dr Pathirana. There is no record of the applicant raising any concerns with the nature of his duties. Ms Williams’ evidence is that she was in regular contact with his treating doctors.
In this statement, the applicant maintained that he was never someone to refuse a task, even if it may aggravate his injury. However, he has later stated that he would refuse “ridiculous” requests, responding with such words as “let’s be realistic about what I can do”. He also raised in his last statement, for the first time, that there was an attitude that those who were on compensation were a burden.
As the applicant disagreed with Ms Williams’ evidence, he nominated Mr Kenny, Mr Burton and Mr Akbar as witnesses who could confirm the duties he performed while on suitable duties. Having nominated these employees, he found reason to take issue with their evidence.
It does not appear that either Mr Kenny, Mr Burton or Mr Akbar has any animus towards the applicant. Mr Akbar described him as a good and honest guy. He suspected the applicant nominated him as a witness because he would tell the truth. Mr Kenny described him as a very good worker before the injury to his right shoulder.
Mr Burton’s evidence is that the applicant was very vocal about his limitations and never did anything for which he had not been cleared by his GP. Mr Akbar stated that workers were never (his emphasis) forced to do anything they were not cleared to do, or that might risk further injury. Mr Kenny described the applicant as having “shut up shop” after the injury and being much more vocal about his doctors’ recommendations after surgery.
The applicant’s nominated witnesses refute that there was stigma attached to workers who made a claim for compensation, or that the respondent did not support such workers. The applicant himself was supported on suitable duties for over two years after the surgery on his right shoulder. Mr Kenny refuted that the applicant had reported left shoulder pain to him.
The applicant’s evidence that he was required to perform work that was not suitable whilst he was on light duties is also not consistent with his GPs’ records.
The records include such entries as he was “happy with suitable duties”, that he was working in the office and “no other issues were raised”, that he “seems to be comfortable with” modified duties, that he was “happy with his current role”, “comfortable with his current duties”, and he was “happy and able to attend work for the past two years” with no issues (on 30 September 2020).
As has been noted, the only reference in the GPs’ records to symptoms in the applicant’s left shoulder before January 2021 is that of Dr Ogonowski on 18 May 2017. He was not the applicant’s regular GP, who at that time was Dr Pathirana.
The applicant himself has given no evidence that he reported any problem with his left shoulder on 18 May 2017. His evidence is to the contrary, that he first reported this to Dr Youkhana on 28 January 2021.
It appears likely to me that the reference on 18 May 2017 to a history of left shoulder strain in November 2016 is an error for the right shoulder. The applicant injured his right shoulder in October 2016, which is a date not far removed from that recorded by Dr Ogonowski.
As I have noted, there is then no further reference to the applicant’s left shoulder until January 2021. The applicant has made four statements, in none of which has he said he reported a left shoulder injury to his GPs before 2021.
The WorkCover certificate of capacity issued by Dr Ogonowski, although it is undated, states that the applicant injured his right shoulder on 18 May 2017, and “R shoulder soft tissue injury November 2016 treated under WorkCover” is recoded as a relevant pre-existing factor. This appears on subsequent certificates.
It appears to me that the applicant’s evidence may be coloured by his obvious bitterness towards Toll and his resentment at the termination of his employment, and perhaps by his psychological condition. His evidence is inconsistent, and not supported by four lay witnesses.
I find it difficult to accept the applicant’s evidence. In particular, I find it difficult to accept his explanation for not reporting problems with his left shoulder, or that he reported them to Mr Kenny, in the face of the clinical records and the lay evidence (including his own inconsistent evidence about reporting to Mr Kenny).
Dr Youkhana has reported in January 2022 that the applicant told him in January 2021 that he developed pain in his left shoulder a few months earlier while participating in an exercise program. He did not record this history at the time.
Dr Youkhana opined in a report to the applicant’s solicitors on 12 May 2022 that the applicant’s left shoulder injury was a consequence of over-reliance, whilst avoiding work with his right shoulder. This explanation does not appear anywhere in his clinical records.
Dr Youkhana issued the applicant with numerous COCs. None recorded any problems with, or restrictions on the use of, his left shoulder. The COCs did start to record adjustment disorder with depressed mood and anxiety after the termination of the applicant’s employment. Even the COCs issued after 28 January 2021 did not refer to his left shoulder. This was at a time when, according to Dr Youkhana, he had formed the opinion that the condition of the applicant’s left shoulder was related to the injury to his right.

Dr Youkhana’s reports are inconsistent with both his clinical records and the COCs he issued. I do not accept his evidence.
The applicant also relies on the evidence of Dr Habib.
Dr Habib has recorded a history that they applicant’s left shoulder became painful in May 2017. The only evidence of this is the entry in the clinical records dated 18 May 2017, which, as I have said, I believe was an error for the right shoulder.
Dr Habib opined that the applicant had a consequential left shoulder injury from overuse and reliance on his left arm. This is not borne out by the lay evidence or the clinical records, or even, to some extent, the applicant’s evidence that he refused to perform some duties. Dr Habib referred to his report being based on, among other evidence, the clinical notes.
Dr Habib has also recorded in his supplementary report that the applicant received treatment for his left shoulder in May 2017, which does not appear to be the case. In this report, he referred to the applicant having used both arms to, in particular, strap the loads. He was presumably referring to this activity before the injury to the applicant’s right shoulder.
Dr Habib has, in his supplementary report, virtually become an advocate. He was critical of both Dr Low and Mr McIlroy of Toll. In my view, the criticism was not in accordance with his obligations under Procedural Direction PIC4, paragraph 9, which provides that an expert witness’s paramount duty is to the Commission, and an expert witness is not an advocate for a party or the person retaining them.
Dr Habib opined that Dr Low’s report/s and the s 78 notice appear to be striving to keep the applicant’s impairment below 10% [sic].
Dr Low in fact initially accepted that the condition of the applicant’s left shoulder may be due to the nature and conditions of his employment and opined that he required further investigation to establish whether the treatment recommended by Dr Habib (without the benefit of investigation at that stage) was appropriate. He opined that the applicant’s left shoulder was not “clearly” a compensable injury. His assessment of WPI as a result of injury to the applicant’s right shoulder is higher than that of Dr Habib.
The applicant’s evidence is that Toll paid for the MRI of his left shoulder. It is one of his many complaints that it was “appalling” that it approved the MRI while denying [liability for] his injury. I assume the MRI was approved by, or arranged at the request of, Mr McIlroy, who is described as Senior Manager NSW/ACT Health Safety and Environment, Toll Group. The MRI was then referred to Dr Low for comment.
The actions of Dr Low and Mr McIlroy were in my view not directed at keeping the assessment of the applicant’s impairment “below 10%”. Dr Low reported that the applicant’s left shoulder required investigation before he could opine definitively, Toll arranged for and paid for the investigation, and Dr Low then provided his further opinion. Dr Habib’s comments were inappropriate, should not have been made, and are rejected.
Given that I do not accept Dr Youkhana’s evidence, I am effectively left with the medical opinions of Dr Habib and Dr Low.
The factual and medical evidence does not support the conclusion that the applicant has developed a consequential condition of his left shoulder as a result of the injury to his right.
As I have noted, Dr Habib’s report lacks objectivity. Dr Low was initially reluctant to provide an opinion. Having reviewed the MRI of the applicant’s left shoulder, he came to the conclusion that he had an age-related degenerative condition that was unrelated to his employment with Toll. I prefer his evidence to that of Dr Habib.
The applicant’s evidence is inconsistent and not supported by either the lay evidence or the contemporaneous medical evidence.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited[1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
The Court went on to say in Nguyen (at [55]):
“The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
For the above reasons, I am not satisfied, on the balance of probabilities, that the applicant has sustained a consequential condition of his left shoulder as a result of the injury to his right shoulder on…
As the assessment of WPI as a result of injury to the applicant’s right shoulder is not greater than 10%, as required by s 66(1) of the 1987 Act, the medical dispute may not be referred to a Medical Assessor.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 548

5 October 2022